Bank Of Scotland v. Bradbury [2009] ScotSC 27 (21 January 2009)

Bank Of Scotland v. Bradbury [2009] ScotSC 27 (21 January 2009)

The case must proceed to a fresh diet of proof before answer before a new Sheriff, who will determine at a procedural hearing whether to hear evidence de novo or rely on extended notes of the previous proof, taking into account the nature of the evidence and any objections by parties.

Citation
[2009] ScotSC 27
Parties
Pursuer: Bank Of Scotland; Defender: Bradbury
Jurisdiction
Scotland
Judgment Date
21 January 2009
Procedural Posture
Action for Recovery of Possession of Heritable Property / Interlocutory Order Remitting to Proof Before Answer, Assigning Dates for Proof and Pre Proof Hearing
Outcome
Remitted to Sheriff to proceed as accords; proof before answer allowed; dates assigned for proof and pre-proof hearing.
Legal Topics
Recovery of Possession, Standard Security, Proof Before Answer, Judicial Procedure After Judge's Incapacity
Property Law Civil Procedure Recovery of Possession Standard Security Proof Before Answer Judicial Procedure After Judge's Incapacity

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Parties

Bank Of Scotland

Pursuer

Bradbury

Defender

Procedural Posture

Action for Recovery of Possession of Heritable Property / Interlocutory Order Remitting to Proof Before Answer, Assigning Dates for Proof and Pre Proof Hearing

Legal Issues

  1. 1 Whether future proof should be de novo or based on extended notes of previous proof
  2. 2 Whether consent of parties is required to proceed on notes of evidence taken before a different Sheriff

Ratio Decidendi

The case must proceed to a fresh diet of proof before answer before a new Sheriff, who will determine at a procedural hearing whether to hear evidence de novo or rely on extended notes of the previous proof, taking into account the nature of the evidence and any objections by parties.

Court Disposition

Remitted to Sheriff to proceed as accords; proof before answer allowed; dates assigned for proof and pre-proof hearing.

Orders

  • Remit to Sheriff for further procedure as accords.
  • Allow parties a proof before answer.