Elder v Cameron [2000] ScotCS 37 (10 February 2000)

Elder v Cameron [2000] ScotCS 37 (10 February 2000)

It was improper to exclude averments from probation and dispose of the counterclaim before the pleadings were amended and finalised; the interlocutor must be recalled except for the part allowing amendment and answers.

Citation
[2000] ScotCS 37
Parties
Pursuer and Respondent: William Brown Elder; Defender and Appellant: Alan Cameron
Jurisdiction
Scotland
Judgment Date
10 February 2000
Procedural Posture
Appeal / Interlocutory Appeal From Sheriff Court Decision on Pleadings and Counterclaim
Outcome
Appeal allowed in part; interlocutor recalled except for part allowing amendment and answers.
Legal Topics
Pleadings, Amendment of Pleadings, Counterclaim, Relevancy of Averments
Civil Procedure Landlord and Tenant Pleadings Amendment of Pleadings Counterclaim Relevancy of Averments

Case Brief

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Parties

William Brown Elder

Pursuer and Respondent

Alan Cameron

Defender and Appellant

Procedural Posture

Appeal / Interlocutory Appeal From Sheriff Court Decision on Pleadings and Counterclaim

Legal Issues

  1. 1 Whether the sheriff erred in excluding parts of the defender's averments from probation before amendment of the pursuer's pleadings
  2. 2 Whether the sheriff erred in granting absolvitor rather than dismissal of the counterclaim at this stage

Ratio Decidendi

It was improper to exclude averments from probation and dispose of the counterclaim before the pleadings were amended and finalised; the interlocutor must be recalled except for the part allowing amendment and answers.

Court Disposition

Appeal allowed in part; interlocutor recalled except for part allowing amendment and answers.

Orders

  • Recall of the sheriff's interlocutor of 21 November except for the part allowing the pursuer to lodge a minute of amendment and the defender to lodge answers.