3052775 Nova Scotia Ltd v Henderson [2015] ScotCS CSOH_126 (15 September 2015)

3052775 Nova Scotia Ltd v Henderson [2015] ScotCS CSOH_126 (15 September 2015)

The pursuers' averments, if proved, are sufficient to entitle them to a proof on the issue of absence of fault in failing to appear at proof and in failing to reclaim, and the existence of inconsistent decrees constitutes an exceptional circumstance. Therefore, the action is not bound to fail and should proceed to proof before answer.

Citation
[2015] ScotCS CSOH_126
Parties
Pursuer: 3052775 Nova Scotia Limited; Defender: Matthew Purdon Henderson
Jurisdiction
Scotland
Judgment Date
15 September 2015
Procedural Posture
Civil Action of Reduction / Procedure Roll Discussion on Relevancy, Interlocutor on Preliminary Pleas
Outcome
Defender's third plea-in-law (to relevancy) repelled; proof before answer allowed.
Legal Topics
Reduction of Decree, Decree in Foro, Exceptional Circumstances, Res Judicata, Remedies for Default Judgment
Civil Procedure Insolvency Law Reduction of Decree Decree in Foro Exceptional Circumstances Res Judicata Remedies for Default Judgment

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Parties

3052775 Nova Scotia Limited

Pursuer

Matthew Purdon Henderson

Defender

Procedural Posture

Civil Action of Reduction / Procedure Roll Discussion on Relevancy, Interlocutor on Preliminary Pleas

Legal Issues

  1. 1 Whether the pursuers' action for reduction of a decree by default is relevant and should be allowed to proceed to proof
  2. 2 Whether exceptional circumstances exist justifying reduction of a decree in foro where the pursuers failed to reclaim within the statutory period

Ratio Decidendi

The pursuers' averments, if proved, are sufficient to entitle them to a proof on the issue of absence of fault in failing to appear at proof and in failing to reclaim, and the existence of inconsistent decrees constitutes an exceptional circumstance. Therefore, the action is not bound to fail and should proceed to proof before answer.

Court Disposition

Defender's third plea-in-law (to relevancy) repelled; proof before answer allowed.

Orders

  • Proof before answer allowed on the pursuers' averments of exceptional circumstances and absence of fault.
  • All questions of expenses reserved.