Jones & Anor v Gray & Anor [2011] ScotCS CSOH_204 (13 December 2011)

Jones & Anor v Gray & Anor [2011] ScotCS CSOH_204 (13 December 2011)

The pursuers' pleadings are sufficiently specific and relevant to justify inquiry. The criticisms regarding lack of specification and fair notice are not compelling enough to warrant dismissal or exclusion from proof. The damages claim, though not ideally particularized, is a subsidiary issue and should be admitted to proof.

Citation
[2011] ScotCS CSOH_204
Parties
Pursuer: Roger Jones; Pursuer: Katherine Jones; Defender: William Henderson Gray; Defender: Edna Drummond Ross or Gray
Jurisdiction
Scotland
Judgment Date
13 December 2011
Procedural Posture
Civil / Procedure Roll Hearing (pleadings Challenge)
Outcome
Pursuers' fifth plea-in-law repelled; proof before answer allowed quoad ultra.
Legal Topics
Servitude Rights, Prescription, Damages, Specification of Pleadings
Property Law Civil Procedure Servitude Rights Prescription Damages Specification of Pleadings

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Parties

Roger Jones

Pursuer

Katherine Jones

Pursuer

William Henderson Gray

Defender

Edna Drummond Ross or Gray

Defender

Procedural Posture

Civil / Procedure Roll Hearing (pleadings Challenge)

Legal Issues

  1. 1 Whether the pursuers' pleadings are sufficiently specific and relevant to proceed to proof regarding the existence of a servitude right of access by prescription.
  2. 2 Whether the damages claim is adequately specified.

Ratio Decidendi

The pursuers' pleadings are sufficiently specific and relevant to justify inquiry. The criticisms regarding lack of specification and fair notice are not compelling enough to warrant dismissal or exclusion from proof. The damages claim, though not ideally particularized, is a subsidiary issue and should be admitted to proof.

Court Disposition

Pursuers' fifth plea-in-law repelled; proof before answer allowed quoad ultra.

Orders

  • Repel pursuers' fifth plea-in-law.
  • Allow proof before answer on remaining issues.