Moggach v Milne [2004] ScotSC 69 (22 October 2004)

Moggach v Milne [2004] ScotSC 69 (22 October 2004)

The sheriff principal held that the pursuer's pleadings, while lacking in some specification, were just sufficient to allow proof before answer, and that the defender's pleadings provided adequate notice of her case. There was no error in law by the sheriff in refusing to restrict proof to quantum or in allowing proof before answer. The appeal was refused and the sheriff's interlocutor adhered to.

Citation
[2004] ScotSC 69
Parties
Pursuer and Appellant: George Alexander Moggach; Defender and Respondent: Margaret Jane Milne
Jurisdiction
Scotland
Judgment Date
22 October 2004
Procedural Posture
Civil Appeal / Appeal Against Interlocutor Allowing Proof Before Answer
Outcome
Appeal refused; sheriff's interlocutor adhered to.
Legal Topics
Recompense, Unjust Enrichment, Property Ownership, Proof Before Answer
Civil Law Property Law Unjust Enrichment Recompense Property Ownership Proof Before Answer

Case Brief

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Parties

George Alexander Moggach

Pursuer and Appellant

Margaret Jane Milne

Defender and Respondent

Procedural Posture

Civil Appeal / Appeal Against Interlocutor Allowing Proof Before Answer

Legal Issues

  1. 1 Whether the pursuer's pleadings are sufficiently specific and relevant to support a claim for recompense based on unjust enrichment
  2. 2 Whether the defender's pleadings provide a relevant defence to the claim
  3. 3 Whether proof should be restricted to quantum or allowed before answer

Ratio Decidendi

The sheriff principal held that the pursuer's pleadings, while lacking in some specification, were just sufficient to allow proof before answer, and that the defender's pleadings provided adequate notice of her case. There was no error in law by the sheriff in refusing to restrict proof to quantum or in allowing proof before answer. The appeal was refused and the sheriff's interlocutor adhered to.

Court Disposition

Appeal refused; sheriff's interlocutor adhered to.

Orders

  • Refuses the appeal and adheres to the interlocutor of the sheriff dated 18 December 2003 to the extent that he repelled the pursuer's first plea-in-law and before answer allowed both parties a proof of their respective averments.
  • Reserves meantime all questions of expenses and appoints parties to be heard thereon at Elgin Sheriff Court on Tuesday 2 November 2004 at 2.00 pm.