Lu v Andersons Solicitors LLP & Ors [2017] ScotCS CSIH_45 (12 July 2017)

Lu v Andersons Solicitors LLP & Ors [2017] ScotCS CSIH_45 (12 July 2017)

If the pursuer proves that his agent was misled by the sheriff's erroneous statement regarding consent to the expenses order, there is a potential for a finding that substantial justice has not been achieved. The pleadings disclose a case that should proceed to proof before answer, as it cannot be said that the pursuer would necessarily fail to establish a miscarriage of justice.

Citation
[2017] ScotCS CSIH_45
Parties
Pursuer and Reclaimer: Man Hen Liu; Defenders and Respondents: Andersons Solicitors LLP and Others
Jurisdiction
Scotland
Judgment Date
12 July 2017
Procedural Posture
Reclaiming Motion (appeal) in Action of Reduction / Appeal (inner House, Court of Session)
Outcome
Lord Ordinary’s interlocutor of 16 November 2016 recalled; proof before answer allowed on parties’ averments.
Legal Topics
Reduction of Interlocutors, Miscarriage of Justice, Expenses as Condition Precedent, Professional Negligence, Appeal Procedure
Civil Procedure Professional Negligence Reduction of Interlocutors Miscarriage of Justice Expenses as Condition Precedent Appeal Procedure

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Parties

Man Hen Liu

Pursuer and Reclaimer

Andersons Solicitors LLP and Others

Defenders and Respondents

Procedural Posture

Reclaiming Motion (appeal) in Action of Reduction / Appeal (inner House, Court of Session)

Legal Issues

  1. 1 Whether exceptional circumstances exist to justify reduction of interlocutors refusing leave to appeal and awarding expenses as condition precedent
  2. 2 Whether a miscarriage of justice occurred due to the sheriff misleading the pursuer's agent about consent to expenses order

Ratio Decidendi

If the pursuer proves that his agent was misled by the sheriff's erroneous statement regarding consent to the expenses order, there is a potential for a finding that substantial justice has not been achieved. The pleadings disclose a case that should proceed to proof before answer, as it cannot be said that the pursuer would necessarily fail to establish a miscarriage of justice.

Court Disposition

Lord Ordinary’s interlocutor of 16 November 2016 recalled; proof before answer allowed on parties’ averments.

Orders

  • Recall of Lord Ordinary’s interlocutor of 16 November 2016
  • Allow proof before answer of parties’ respective averments