Beriston Ltd v Dumbarton Motor Boat & Sailing Club & Ors [2006] ScotCS CSOH_190 (15 December 2006)

Beriston Ltd v Dumbarton Motor Boat & Sailing Club & Ors [2006] ScotCS CSOH_190 (15 December 2006)

A conclusion for removing is incompetent in the Court of Session unless it is ancillary to a preliminary declarator or reduction; the pursuers' action lacked such a preliminary conclusion, and the defenders' averments challenging title were irrelevant and lacking specification.

Citation
[2006] ScotCS CSOH_190
Parties
Pursuer: Beriston Limited; Defender: Dumbarton Motor Boat and Sailing Club; Defender: James Gillespie; Pursuer's Solicitors: Morisons, Solicitors; Defender's Solicitors: Drummond Miller, Solicitors
Jurisdiction
Scotland
Judgment Date
15 December 2006
Procedural Posture
Civil / Interlocutory Judgment on Competency and Relevancy
Outcome
Conclusion for removing held incompetent; first plea-in-law for second named defender sustained; no relevant defence to interdict; case put out By Order for further disposal; expenses reserved.
Legal Topics
Jurisdiction, Removing Actions, Interdict, Heritable Property, Common Good Land
Property Law Civil Procedure Jurisdiction Removing Actions Interdict Heritable Property Common Good Land

Case Brief

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Parties

Beriston Limited

Pursuer

Dumbarton Motor Boat and Sailing Club

Defender

James Gillespie

Defender

Morisons, Solicitors

Pursuer's Solicitors

Drummond Miller, Solicitors

Defender's Solicitors

Procedural Posture

Civil / Interlocutory Judgment on Competency and Relevancy

Legal Issues

  1. 1 Is a conclusion for removing competent in the Court of Session absent a preliminary declarator or reduction?
  2. 2 Are the defenders' averments challenging pursuers' title relevant and sufficiently specified?

Ratio Decidendi

A conclusion for removing is incompetent in the Court of Session unless it is ancillary to a preliminary declarator or reduction; the pursuers' action lacked such a preliminary conclusion, and the defenders' averments challenging title were irrelevant and lacking specification.

Court Disposition

Conclusion for removing held incompetent; first plea-in-law for second named defender sustained; no relevant defence to interdict; case put out By Order for further disposal; expenses reserved.

Orders

  • Sustain first plea-in-law for second named defender
  • Put case out By Order for parties to address appropriate disposal