BRANDON HIRE LTD v. GARY SHARP [2013] ScotSC 56 (12 September 2013)

BRANDON HIRE LTD v. GARY SHARP [2013] ScotSC 56 (12 September 2013)

The Sheriff Principal exercised discretion to allow the cross appeal to be received and argued, finding that the point raised was obvious and that fairness and prejudice favoured the pursuers. The cause was sisted to allow the defender to bring an action of reduction in the Court of Session regarding the decree in foro against Simply Construct Limited.

Citation
[2013] ScotSC 56
Parties
Pursuers, Respondents and Cross Appellants: Brandon Hire Limited; Defender, Appellant and Cross Respondent: Gary Sharp
Jurisdiction
Scotland
Judgment Date
12 September 2013
Procedural Posture
Civil Appeal / Interlocutory Appeal on Whether Cross Appeal Should Be Received and Argued
Outcome
Cross appeal allowed to be received and argued; cause sisted to allow action of reduction; expenses of hearing awarded to defender; certification for counsel refused; other expenses continued.
Legal Topics
Personal Guarantee, Decree in Foro, Reduction of Decree, Relevancy of Defences, Procedural Fairness
Contract Law Civil Procedure Personal Guarantee Decree in Foro Reduction of Decree Relevancy of Defences Procedural Fairness

Case Brief

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Parties

Brandon Hire Limited

Pursuers, Respondents and Cross Appellants

Gary Sharp

Defender, Appellant and Cross Respondent

Procedural Posture

Civil Appeal / Interlocutory Appeal on Whether Cross Appeal Should Be Received and Argued

Legal Issues

  1. 1 Whether the pursuers' cross appeal raising a new legal argument should be allowed to be received and argued at the appeal stage
  2. 2 Whether a decree in foro against the principal debtor precludes the cautioner from advancing defences not previously raised without first seeking reduction of the decree

Ratio Decidendi

The Sheriff Principal exercised discretion to allow the cross appeal to be received and argued, finding that the point raised was obvious and that fairness and prejudice favoured the pursuers. The cause was sisted to allow the defender to bring an action of reduction in the Court of Session regarding the decree in foro against Simply Construct Limited.

Court Disposition

Cross appeal allowed to be received and argued; cause sisted to allow action of reduction; expenses of hearing awarded to defender; certification for counsel refused; other expenses continued.

Orders

  • Allows the cross appeal to be received and argued.
  • Sists the appeal and cross appeal to allow the defender to bring an action of reduction in the Court of Session.