OPINON OF LADY WISE IN THE CAUSE NICOLSON BROS AGAINST RICHARD NEIL MACDIARMID ANDERSON AS EXECUTOR NOMINATE OF THE OF THE LATE MRS PATRICIA ANDERSON [2014] ScotCS CSOH_114 (11 July 2014)

OPINON OF LADY WISE IN THE CAUSE NICOLSON BROS AGAINST RICHARD NEIL MACDIARMID ANDERSON AS EXECUTOR NOMINATE OF THE OF THE LATE MRS PATRICIA ANDERSON [2014] ScotCS CSOH_114 (11 July 2014)

The defender's counterclaim is incompetent as reduction of the interlocutors would require convening other parties (Shetland Islands Council and Scottish Water); even if competent, the defences and counterclaim are irrelevant and disclose no defence to enforcement of the valid decree for expenses; summary decree is justified as the defence is dilatory and bound to fail.

Citation
[2014] ScotCS CSOH_114
Parties
Pursuer: Nicolson Bros; Defender: Richard Neil MacDiarmid Anderson as executor nominate of the late Mrs Patricia Anderson
Jurisdiction
Scotland
Judgment Date
11 July 2014
Procedural Posture
Ordinary Action for Payment (enforcement of Decree for Expenses) / Motion for Summary Decree
Outcome
Summary decree granted in favour of the pursuers; defender's pleas repelled.
Legal Topics
Summary Decree, Competency of Counterclaim, Enforcement of Decree, Reduction of Interlocutors, Expenses in Judicial Review
Civil Procedure Judicial Review Estate Administration Summary Decree Competency of Counterclaim Enforcement of Decree Reduction of Interlocutors Expenses in Judicial Review

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Parties

Nicolson Bros

Pursuer

Richard Neil MacDiarmid Anderson as executor nominate of the late Mrs Patricia Anderson

Defender

Procedural Posture

Ordinary Action for Payment (enforcement of Decree for Expenses) / Motion for Summary Decree

Legal Issues

  1. 1 Whether the defender's counterclaim for reduction of interlocutors is competent
  2. 2 Whether there is any relevant defence to enforcement of the decree for expenses
  3. 3 Whether summary decree should be granted in favour of the pursuers

Ratio Decidendi

The defender's counterclaim is incompetent as reduction of the interlocutors would require convening other parties (Shetland Islands Council and Scottish Water); even if competent, the defences and counterclaim are irrelevant and disclose no defence to enforcement of the valid decree for expenses; summary decree is justified as the defence is dilatory and bound to fail.

Court Disposition

Summary decree granted in favour of the pursuers; defender's pleas repelled.

Orders

  • Repel defender’s pleas in the defences and counterclaim
  • Grant summary decree in favour of the pursuers