RECLAIMING MOTION BY MW (AP) AGAINST BW AND ANOTHERS [2021] ScotCS CSIH_1 (07 January 2021)

RECLAIMING MOTION BY MW (AP) AGAINST BW AND ANOTHERS [2021] ScotCS CSIH_1 (07 January 2021)

The reclaiming motion was incompetent because it failed to comply with rule 38.5(1) by not seeking review of a specified interlocutor, was enrolled out of time, and no relevant legal grounds for review were articulated. Relief from procedural failures was not justified as no excusable cause was established. The interests of justice required refusal of all pursuer's motions and sustaining the objection to competency.

Citation
[2021] ScotCS CSIH_1
Parties
Pursuer and Reclaimer: M W (AP) FE; Defender and Respondent: B W, as the continuing attorney of M R W in her personal capacity and as executrix nominate of the late T B W
Jurisdiction
Scotland
Judgment Date
07 January 2021
Procedural Posture
Reclaiming Motion / Single Bills Hearing Before Procedural Judge
Outcome
Reclaiming motion refused as incompetent; pursuer's motions refused.
Legal Topics
Reclaiming Motion Competency, Abandonment of Action, Expenses, Relief From Non Compliance, Sale of Estate Property
Civil Procedure Trusts and Estates Reclaiming Motion Competency Abandonment of Action Expenses Relief From Non Compliance Sale of Estate Property

Case Brief

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Parties

M W (AP) FE

Pursuer and Reclaimer

B W, as the continuing attorney of M R W in her personal capacity and as executrix nominate of the late T B W

Defender and Respondent

Procedural Posture

Reclaiming Motion / Single Bills Hearing Before Procedural Judge

Legal Issues

  1. 1 Whether the reclaiming motion was competent under Court of Session rules
  2. 2 Whether relief should be granted for failures to comply with procedural rules
  3. 3 Whether the pursuer could reclaim against decree of absolvitor pronounced following abandonment and failure to pay expenses

Ratio Decidendi

The reclaiming motion was incompetent because it failed to comply with rule 38.5(1) by not seeking review of a specified interlocutor, was enrolled out of time, and no relevant legal grounds for review were articulated. Relief from procedural failures was not justified as no excusable cause was established. The interests of justice required refusal of all pursuer's motions and sustaining the objection to competency.

Court Disposition

Reclaiming motion refused as incompetent; pursuer's motions refused.

Orders

  • Objection to competency sustained.
  • Reclaiming motion refused as incompetent.