Trustunion LLC & Anor, Re Recall of a Restraint Order [2015] ScotCS CSOH_38 (16 April 2015)

Trustunion LLC & Anor, Re Recall of a Restraint Order [2015] ScotCS CSOH_38 (16 April 2015)

The application for recall of the restraint order was refused because the issue of whether the dwelling house was realisable property had already been litigated and decided against Trustunion in the realisation proceedings, where Trustunion failed to find caution and decree passed by default. The matter was res judicata and could not be relitigated. The application was also years out of time under RCS 76.4, and no sufficient reason was given for the delay. Mr McDonald had no standing as an individual. Adequate procedural safeguards existed for third parties, and there was no breach of ECHR rights.

Citation
[2015] ScotCS CSOH_38
Parties
First Noter/respondent: Trustunion LLC; Second Noter/respondent: James McFarlane McDonald; Petitioner/respondent: Her Majesty’s Advocate
Jurisdiction
Scotland
Judgment Date
16 April 2015
Procedural Posture
Application for Recall of Restraint Order (note in Petition Process) / Decision on Application for Recall of Restraint Order
Outcome
Application for recall of restraint order refused.
Legal Topics
Restraint Orders, Recall of Restraint Orders, Realisable Property, Third Party Interests, Confiscation Orders, Res Judicata, Human Rights (echr)
Criminal Law Proceeds of Crime Civil Procedure Restraint Orders Recall of Restraint Orders Realisable Property Third Party Interests Confiscation Orders +2 more

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Parties

Trustunion LLC

First Noter/respondent

James McFarlane McDonald

Second Noter/respondent

Her Majesty’s Advocate

Petitioner/respondent

Procedural Posture

Application for Recall of Restraint Order (note in Petition Process) / Decision on Application for Recall of Restraint Order

Legal Issues

  1. 1 Whether the application for recall of the restraint order is competent and timeous
  2. 2 Whether Trustunion LLC or Mr McDonald have standing to seek recall
  3. 3 Whether the issue of realisability of the property can be relitigated after default decree in realisation proceedings

Ratio Decidendi

The application for recall of the restraint order was refused because the issue of whether the dwelling house was realisable property had already been litigated and decided against Trustunion in the realisation proceedings, where Trustunion failed to find caution and decree passed by default. The matter was res judicata and could not be relitigated. The application was also years out of time under RCS 76.4, and no sufficient reason was given for the delay. Mr McDonald had no standing as an individual. Adequate procedural safeguards existed for third parties, and there was no breach of ECHR rights.

Court Disposition

Application for recall of restraint order refused.

Orders

  • Refusal of the Note for recall of the restraint order.