PROMONTORIA (CHESTNUT) LTD AGAINST THE FIRM OF BALLANTYNE PROPERTY SERVICES AND OTHERS [2019] ScotCS CSOH_91 (08 November 2019)

PROMONTORIA (CHESTNUT) LTD AGAINST THE FIRM OF BALLANTYNE PROPERTY SERVICES AND OTHERS [2019] ScotCS CSOH_91 (08 November 2019)

The plea of lis alibi pendens fails because the commercial action and the summary application do not raise the same legal question or seek the same remedy. The commercial action seeks a decree for payment based on personal rights, while the summary application seeks to realise real rights in security. The issues in the summary application are incidental and not conclusive between the parties. Statutory and common law allow concurrent pursuit of both remedies.

Citation
[2019] ScotCS CSOH_91
Parties
Pursuer: Promontoria (Chestnut) Limited; First Defender: The Firm of Ballantyne Property Services; Second Defender: Gillian Ballantyne Smith; Third Defender: Thomas Alan Smith
Jurisdiction
Scotland
Judgment Date
08 November 2019
Procedural Posture
Commercial Action for Payment / Debate on Plea of Lis Alibi Pendens
Outcome
Defenders' plea of lis alibi pendens repelled; motion for sist refused.
Legal Topics
Lis Alibi Pendens, Enforcement of Contractual Obligations, Standard Securities, Summary Application, Real and Personal Rights
Civil Procedure Commercial Law Property Law Lis Alibi Pendens Enforcement of Contractual Obligations Standard Securities Summary Application Real and Personal Rights

Case Brief

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Parties

Promontoria (Chestnut) Limited

Pursuer

The Firm of Ballantyne Property Services

First Defender

Gillian Ballantyne Smith

Second Defender

Thomas Alan Smith

Third Defender

Procedural Posture

Commercial Action for Payment / Debate on Plea of Lis Alibi Pendens

Legal Issues

  1. 1 Whether the plea of lis alibi pendens applies where there are parallel proceedings: a commercial action for payment and a summary application to enforce standard securities between the same parties.

Ratio Decidendi

The plea of lis alibi pendens fails because the commercial action and the summary application do not raise the same legal question or seek the same remedy. The commercial action seeks a decree for payment based on personal rights, while the summary application seeks to realise real rights in security. The issues in the summary application are incidental and not conclusive between the parties. Statutory and common law allow concurrent pursuit of both remedies.

Court Disposition

Defenders' plea of lis alibi pendens repelled; motion for sist refused.

Orders

  • Plea of lis alibi pendens repelled
  • Motion for sist refused