Messrs ER Eunson & Partners & Ors v. Messs J & M Foubister & Ors [2006] ScotSC 82 (07 November 2006)

Messrs ER Eunson & Partners & Ors v. Messs J & M Foubister & Ors [2006] ScotSC 82 (07 November 2006)

The sheriff was correct to refuse to allow the record to be opened up and amended in terms of the first defenders' minute of amendment as adjusted and the answers thereto, as the proposed amendments were not necessary for determining the real question in controversy between the parties in the counterclaim. The sheriff's discretion was properly exercised, and there was no error of law or wrongful exercise of discretion.

Citation
[2006] ScotSC 82
Parties
Pursuers and Respondents: Messrs E R Eunson & Partners, Edward Robert Eunson, Lily Isabella Eunson and Brian Eunson; First Defenders and Appellants: Messrs J & M Foubister, James Foubister and Moira Ann Foubister; Second Defender: Sidney David Eunson; Third Defender: Colin Bichan Wylie
Jurisdiction
Scotland
Judgment Date
07 November 2006
Procedural Posture
Civil Partnership Dissolution and Accounting / Appeal Against Interlocutor (procedural Orders)
Outcome
Appeal refused; sheriff's interlocutor adhered to with qualifications.
Legal Topics
Partnership Dissolution, Accounting Between Partners, Amendment of Pleadings, Procedural Discretion
Civil Procedure Partnership Law Partnership Dissolution Accounting Between Partners Amendment of Pleadings Procedural Discretion

Case Brief

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Parties

Messrs E R Eunson & Partners, Edward Robert Eunson, Lily Isabella Eunson and Brian Eunson

Pursuers and Respondents

Messrs J & M Foubister, James Foubister and Moira Ann Foubister

First Defenders and Appellants

Sidney David Eunson

Second Defender

Colin Bichan Wylie

Third Defender

Procedural Posture

Civil Partnership Dissolution and Accounting / Appeal Against Interlocutor (procedural Orders)

Legal Issues

  1. 1 Whether the sheriff erred in refusing to allow amendment of pleadings by the first defenders
  2. 2 Whether the sheriff erred in refusing to allow further adjustment of the minute of amendment

Ratio Decidendi

The sheriff was correct to refuse to allow the record to be opened up and amended in terms of the first defenders' minute of amendment as adjusted and the answers thereto, as the proposed amendments were not necessary for determining the real question in controversy between the parties in the counterclaim. The sheriff's discretion was properly exercised, and there was no error of law or wrongful exercise of discretion.

Court Disposition

Appeal refused; sheriff's interlocutor adhered to with qualifications.

Orders

  • Refuses the appeal and adheres to the interlocutor of the sheriff dated June 2006 subject to specified qualifications.
  • Finds the first defenders and appellants liable to the pursuers and respondents in the expenses of the appeal and allows an account thereof to be given in and remits the same, when lodged, to the auditor of court to tax and to report.