Class 98 Ltd v Hogg & Anor As Partners In Eriden Properties & Anor [2000] ScotCS 316 (14 December 2000)

Class 98 Ltd v Hogg & Anor As Partners In Eriden Properties & Anor [2000] ScotCS 316 (14 December 2000)

The pursuers have established a prima facie case that the servitude right of access extends to constructing the new junctions and removing necessary obstacles, and the balance of convenience favours granting interim interdict and interim order, given the availability of alternative remedies for the defenders and the quantifiable nature of the pursuers' potential losses.

Citation
[2000] ScotCS 316
Parties
Pursuer: Class 98 Limited; First Defender: Gordon Carr Hogg and another as partners in Eriden Properties; Second Defender: Falkirk Council
Jurisdiction
Scotland
Judgment Date
14 December 2000
Procedural Posture
Civil (interdict and Declarator) / Interim Interdict and Interim Order Application
Outcome
Interim interdict and interim order granted
Legal Topics
Servitude Rights of Access, Interim Interdict, Balance of Convenience, Construction of Servitude, Restoration and Damages
Property Law Civil Procedure Servitude Rights of Access Interim Interdict Balance of Convenience Construction of Servitude Restoration and Damages

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Parties

Class 98 Limited

Pursuer

Gordon Carr Hogg and another as partners in Eriden Properties

First Defender

Falkirk Council

Second Defender

Procedural Posture

Civil (interdict and Declarator) / Interim Interdict and Interim Order Application

Legal Issues

  1. 1 Whether the reserved servitude entitles the pursuers to construct new road junctions within the servient tenement
  2. 2 Whether the pursuers are entitled to interim interdict and interim order for removal of obstructions

Ratio Decidendi

The pursuers have established a prima facie case that the servitude right of access extends to constructing the new junctions and removing necessary obstacles, and the balance of convenience favours granting interim interdict and interim order, given the availability of alternative remedies for the defenders and the quantifiable nature of the pursuers' potential losses.

Court Disposition

Interim interdict and interim order granted

Orders

  • Interim interdict granted in terms of the third conclusion of the summons
  • Interim order under section 47(2) of the Court of Session Act 1988 granted in terms of the fourth conclusion, with time for removal of obstructions extended to noon on 18 December 2000