Ashford and Thistle Securities Llp v. Kerr [2006] ScotSC 14 (28 February 2006)

Ashford and Thistle Securities Llp v. Kerr [2006] ScotSC 14 (28 February 2006)

A motion for caution for violent profits is incompetent in an extraordinary removing where the lease has not yet been established as irritated and the defender is not in 'violent possession'. Ordinary Cause Rule 34.5(2) does not extend to such circumstances, and there is no statutory or established practice to support such an order prior to the establishment of irritancy.

Citation
[2006] ScotSC 14
Parties
Pursuers and Respondents: Ashford and Thistle Securities LLP; Defender and Appellant: Maureen Kerr
Jurisdiction
Scotland
Judgment Date
28 February 2006
Procedural Posture
Appeal in Civil Landlord Tenant Dispute / Interlocutory Motion During Appeal
Outcome
Motion for caution for violent profits refused as incompetent.
Legal Topics
Irritancy of Lease, Caution for Violent Profits, Competency of Motions, Extraordinary Removing, Appeal Procedure
Landlord and Tenant Law Civil Procedure Irritancy of Lease Caution for Violent Profits Competency of Motions Extraordinary Removing Appeal Procedure

Case Brief

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Parties

Ashford and Thistle Securities LLP

Pursuers and Respondents

Maureen Kerr

Defender and Appellant

Procedural Posture

Appeal in Civil Landlord Tenant Dispute / Interlocutory Motion During Appeal

Legal Issues

  1. 1 Whether a motion for caution for violent profits is competent in an extraordinary removing prior to the ish of the lease
  2. 2 Whether Ordinary Cause Rule 34.5(2) applies to extraordinary removings
  3. 3 Whether the defender is in 'violent possession' prior to the establishment of irritancy

Ratio Decidendi

A motion for caution for violent profits is incompetent in an extraordinary removing where the lease has not yet been established as irritated and the defender is not in 'violent possession'. Ordinary Cause Rule 34.5(2) does not extend to such circumstances, and there is no statutory or established practice to support such an order prior to the establishment of irritancy.

Court Disposition

Motion for caution for violent profits refused as incompetent.

Orders

  • Pursuers and respondents found liable to the defender and appellant in the expenses occasioned by the motion.
  • Account of expenses to be remitted to the Auditor of Court to tax and report.