Battenberg & Ors v Firm of Dunfallandy House & Ors [2010] ScotCS CSIH_41 (14 May 2010)

Battenberg & Ors v Firm of Dunfallandy House & Ors [2010] ScotCS CSIH_41 (14 May 2010)

The Inner House held that it had discretion to recall the decree by default and that the absence of representation for the reclaimer at the continued hearing was excusable, as the caution had been provided and the procedural requirements had been substantially met. The Lord Ordinary's decision to grant decree of absolvitor was not justified on the facts and circumstances, and the decree should be recalled.

Citation
[2010] ScotCS CSIH_41
Parties
First Pursuer: Andrew Charles Robert Edward Albert Battenberg; Second Pursuer and Reclaimer: Salvatore Russo, as representative of the late Ailsa Margaret Lee; Third Pursuer: Cape Vale Pty Limited; First Defender: The Firm of Dunfallandy House; Second Defenders (partners of the Firm of Dunfallandy House): Michael William Bardsley and Mrs Jane Susan Bardsley
Jurisdiction
Scotland
Judgment Date
14 May 2010
Procedural Posture
Reclaiming Motion (appeal) / Appeal Against Decree of Absolvitor (default Judgment) Pronounced by Lord Ordinary on 24 March 2009
Outcome
Decree of absolvitor recalled in so far as it affects the claim of the second pursuer (reclaimer); case remitted to the Lord Ordinary to proceed as accords.
Legal Topics
Recall of Decree by Default, Caution for Expenses, Executor Representation, Interim Interdict, Procedural Default
Civil Procedure Property Law Recall of Decree by Default Caution for Expenses Executor Representation Interim Interdict Procedural Default

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 9 Party arguments 2 Amounts and remedies 2
Sign in to unlock

Parties

Andrew Charles Robert Edward Albert Battenberg

First Pursuer

Salvatore Russo, as representative of the late Ailsa Margaret Lee

Second Pursuer and Reclaimer

Cape Vale Pty Limited

Third Pursuer

The Firm of Dunfallandy House

First Defender

Michael William Bardsley and Mrs Jane Susan Bardsley

Second Defenders (partners of the Firm of Dunfallandy House)

Procedural Posture

Reclaiming Motion (appeal) / Appeal Against Decree of Absolvitor (default Judgment) Pronounced by Lord Ordinary on 24 March 2009

Legal Issues

  1. 1 Whether the appellate court has discretion to recall a decree by default
  2. 2 Whether the Lord Ordinary erred in granting decree of absolvitor against the second pursuer (executor) for procedural default
  3. 3 Whether the procedural history justified decree of absolvitor

Ratio Decidendi

The Inner House held that it had discretion to recall the decree by default and that the absence of representation for the reclaimer at the continued hearing was excusable, as the caution had been provided and the procedural requirements had been substantially met. The Lord Ordinary's decision to grant decree of absolvitor was not justified on the facts and circumstances, and the decree should be recalled.

Court Disposition

Decree of absolvitor recalled in so far as it affects the claim of the second pursuer (reclaimer); case remitted to the Lord Ordinary to proceed as accords.

Orders

  • Recall of decree of absolvitor pronounced on 24 March 2009 against the second pursuer (reclaimer).
  • Remit case to the Lord Ordinary for further procedure.