Bank of Scotland v. Kunkel-Griffin [2004] ScotCS [2004] ScotCS 238 (02 November 2004)

Bank of Scotland v. Kunkel-Griffin [2004] ScotCS [2004] ScotCS 238 (02 November 2004)

The defender failed to satisfy the requirement of being 'without fault' in not defending the action timeously, as she unreasonably failed to seek Scottish legal advice despite having sufficient opportunity. Although a prima facie defence and reasonable timing were established, the absence of fault was not, and thus the motion for recall must be refused.

Parties
Pursuer: The Governor and Company of the Bank of Scotland; Defender: Mrs Brigitte Kunkel-Griffin
Jurisdiction
Scotland
Judgment Date
02 November 2004
Procedural Posture
Application for Recall of Decree in Absence / Outer House, Court of Session, Opposed Hearing on Motion for Recall
Outcome
Defender's motion for recall of decree in absence refused.
Legal Topics
Recall of Decree in Absence, Personal Guarantee, Cautionary Obligations, Service of Process, Interpretation of Court Rules, Misrepresentation, Negligence, Jurisdiction
Civil Procedure Banking Law Contract Law Recall of Decree in Absence Personal Guarantee Cautionary Obligations Service of Process Interpretation of Court Rules +3 more

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Parties

The Governor and Company of the Bank of Scotland

Pursuer

Mrs Brigitte Kunkel-Griffin

Defender

Procedural Posture

Application for Recall of Decree in Absence / Outer House, Court of Session, Opposed Hearing on Motion for Recall

Legal Issues

  1. 1 Whether the defender met the requirements for recall of decree in absence under Rule of Court 19.2(5)
  2. 2 Whether the defender was 'without fault' in failing to defend the action timeously
  3. 3 Whether a prima facie defence on the merits was disclosed

Ratio Decidendi

The defender failed to satisfy the requirement of being 'without fault' in not defending the action timeously, as she unreasonably failed to seek Scottish legal advice despite having sufficient opportunity. Although a prima facie defence and reasonable timing were established, the absence of fault was not, and thus the motion for recall must be refused.

Court Disposition

Defender's motion for recall of decree in absence refused.

Orders

  • Motion for recall of decree of 16 December 2003 refused.