Russo v Russo (AP) [1999] ScotCS 256 (4 November 1999)

Russo v Russo (AP) [1999] ScotCS 256 (4 November 1999)

Although the defender improperly failed to disclose the amendment to the Small Claim until giving evidence, the pursuer could and should have taken steps to recover the relevant documents earlier. The defender's conduct warranted some departure from the normal rule on expenses, but the pursuer's imprudence and delay precluded a full award in his favour. Justice was served by awarding the defender only half his expenses.

Citation
[1999] ScotCS 256
Parties
Pursuer: Arturo Russo; Defender: Adrian Russo, otherwise known as John Hardie (A. P.)
Jurisdiction
Scotland
Judgment Date
04 November 1999
Procedural Posture
Civil Reduction and Expenses / Post Proof, Expenses Determination After Abandonment
Outcome
Decree of absolvitor granted; pursuer's motion for expenses refused; defender awarded one-half of his expenses.
Legal Topics
Reduction of Decree, Fraud on the Court, Expenses (costs), Disclosure Obligations
Civil Procedure Remedies Reduction of Decree Fraud on the Court Expenses (costs) Disclosure Obligations

Case Brief

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Parties

Arturo Russo

Pursuer

Adrian Russo, otherwise known as John Hardie (A. P.)

Defender

Procedural Posture

Civil Reduction and Expenses / Post Proof, Expenses Determination After Abandonment

Legal Issues

  1. 1 Whether the decree obtained in the Sheriff Court was induced by fraud and should be reduced
  2. 2 Whether the defender's conduct justified a departure from the normal rule that expenses follow success
  3. 3 Whether non-disclosure of amendments to the Small Claim justified an award of expenses to the pursuer

Ratio Decidendi

Although the defender improperly failed to disclose the amendment to the Small Claim until giving evidence, the pursuer could and should have taken steps to recover the relevant documents earlier. The defender's conduct warranted some departure from the normal rule on expenses, but the pursuer's imprudence and delay precluded a full award in his favour. Justice was served by awarding the defender only half his expenses.

Court Disposition

Decree of absolvitor granted; pursuer's motion for expenses refused; defender awarded one-half of his expenses.

Orders

  • Decree of absolvitor in favour of defender
  • Pursuer to pay one-half of defender's expenses