Strain v. Byers & Anor [2004] ScotCS 60 (09 March 2004)

Strain v. Byers & Anor [2004] ScotCS 60 (09 March 2004)

It is competent to recall a decree in absence after extract has been issued where no further enforcement steps have been taken, the pursuer does not oppose, and the Court is satisfied that the failure to comply with the procedural time limit was due to oversight and is covered by Rule 2.1. The recall is further justified by the fact that the decree was already recalled against the second defender, and to allow it to stand against the first defender would be unjust.

Citation
[2004] ScotCS 60
Parties
Pursuer: John Strain; First Defender: Ian Byers; Second Defender: Another (Second Defender)
Jurisdiction
Scotland
Judgment Date
09 March 2004
Procedural Posture
Civil Action for Damages / Motion for Recall of Decree in Absence After Extraction
Outcome
Motion for recall of decree in absence against first defender granted.
Legal Topics
Recall of Decree in Absence, Court of Session Rules, Competency of Recall After Extract, Joint and Several Liability
Civil Procedure Recall of Decree in Absence Court of Session Rules Competency of Recall After Extract Joint and Several Liability

Case Brief

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Parties

John Strain

Pursuer

Ian Byers

First Defender

Another (Second Defender)

Second Defender

Procedural Posture

Civil Action for Damages / Motion for Recall of Decree in Absence After Extraction

Legal Issues

  1. 1 Whether it is competent to recall a decree in absence after extract has been issued
  2. 2 Whether Rule 19.2 can be invoked after the seven-day period and after extract
  3. 3 Whether the Court should exercise discretion under Rule 2.1 to allow recall

Ratio Decidendi

It is competent to recall a decree in absence after extract has been issued where no further enforcement steps have been taken, the pursuer does not oppose, and the Court is satisfied that the failure to comply with the procedural time limit was due to oversight and is covered by Rule 2.1. The recall is further justified by the fact that the decree was already recalled against the second defender, and to allow it to stand against the first defender would be unjust.

Court Disposition

Motion for recall of decree in absence against first defender granted.

Orders

  • Recall of decree in absence against first defender.