Unity Trust Bank Plc v Frost & Anor [2001] ScotCS 28 (6 February 2001)

Unity Trust Bank Plc v Frost & Anor [2001] ScotCS 28 (6 February 2001)

General denials in the Bank's pleadings do not amount to admissions of Mr. Frost's averments; decree de plano on the counterclaim is not justified. The effect of the IVA on the Bank's rights is a matter of English law requiring proof. The Lord Ordinary was correct to refuse dismissal of the principal action and decree de plano on the counterclaim, and to order a preliminary proof before answer on specified issues.

Citation
[2001] ScotCS 28
Parties
Pursuer and Respondent: Unity Trust Bank plc; Defender, Appellant and Counterclaimer: Martin Frost; Defender, Appellant and Counterclaimer: Linda Frost
Jurisdiction
Scotland
Judgment Date
06 February 2001
Procedural Posture
Civil Remitted Cause (appeal/reclaiming Motion) / Appeal From Sheriff Court; Interlocutor Review; Preliminary Proof Before Answer Ordered
Outcome
Lord Ordinary's interlocutor affirmed with variation; preliminary proof before answer ordered; possibility of further Procedure Roll discussion reserved.
Legal Topics
Loan Transactions, Standard Securities, Counterclaim Procedure, Individual Voluntary Arrangement (iva), Summary Decree, Pleading Standards, Proof Before Answer
Banking Law Insolvency Law Civil Procedure Property Law Loan Transactions Standard Securities Counterclaim Procedure Individual Voluntary Arrangement (iva) +3 more

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Parties

Unity Trust Bank plc

Pursuer and Respondent

Martin Frost

Defender, Appellant and Counterclaimer

Linda Frost

Defender, Appellant and Counterclaimer

Procedural Posture

Civil Remitted Cause (appeal/reclaiming Motion) / Appeal From Sheriff Court; Interlocutor Review; Preliminary Proof Before Answer Ordered

Legal Issues

  1. 1 Whether general denials in pleadings amount to admissions of fact
  2. 2 Whether decree de plano should be granted on the counterclaim
  3. 3 Effect of an English IVA on enforcement of Scottish heritable securities

Ratio Decidendi

General denials in the Bank's pleadings do not amount to admissions of Mr. Frost's averments; decree de plano on the counterclaim is not justified. The effect of the IVA on the Bank's rights is a matter of English law requiring proof. The Lord Ordinary was correct to refuse dismissal of the principal action and decree de plano on the counterclaim, and to order a preliminary proof before answer on specified issues.

Court Disposition

Lord Ordinary's interlocutor affirmed with variation; preliminary proof before answer ordered; possibility of further Procedure Roll discussion reserved.

Orders

  • Affirmation of Lord Ordinary's interlocutor except to clarify that further Procedure Roll discussion is not foreclosed.
  • Preliminary proof before answer ordered on three specified issues.