Bank Of Scotland v. Bradbury [2009] ScotSC 4 (21 January 2009)

Bank Of Scotland v. Bradbury [2009] ScotSC 4 (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 to rely on the extended notes of the previous proof, considering any objections from parties.

Citation
[2009] ScotSC 4
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 Before Proof Before Answer; Procedural Directions Issued
Outcome
Remitted to Sheriff for proof before answer; procedural directions issued.
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 Before Proof Before Answer; Procedural Directions Issued

Legal Issues

  1. 1 Whether future proof should be de novo or may rely on extended notes of previous proof
  2. 2 Whether consent of parties is required to proceed on notes of evidence taken before previous Sheriff
  3. 3 Proper procedure when original Sheriff is medically unfit to continue

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 to rely on the extended notes of the previous proof, considering any objections from parties.

Court Disposition

Remitted to Sheriff for proof before answer; procedural directions issued.

Orders

  • Proof before answer assigned for 7th and 8th May 2009 before a new Sheriff.
  • Pre-proof hearing assigned for 28th April 2009.