Lee v. Pollock's Trustees [1906] ScotLR 44_192 (15 December 1906)

Lee v. Pollock's Trustees [1906] ScotLR 44_192 (15 December 1906)

The Lord Ordinary erred by requiring payment of all taxed expenses to date as a condition for proceeding; only those expenses occasioned by the minute of abandonment and its withdrawal, not available at future stages, should be paid, less any set-off for pursuer's expenses.

Citation
[1906] ScotLR 44_192
Parties
Pursuer and Reclaimer: John Bethune Walker Lee; Defenders and Respondents: Martha Jamieson or Pollock and others, Andrew Pollock's testamentary trustees
Jurisdiction
Scotland
Judgment Date
15 December 1906
Procedural Posture
Civil / Reclaiming Note (appeal) Against Decree of Absolvitor by Default
Outcome
interlocutors of 22nd June and 11th July 1906 recalled; remit to Lord Ordinary to fix diet of proof on proper conditions; pursuer entitled to expenses since 11th July 1906
Legal Topics
Abandonment, Withdrawal of Minute of Abandonment, Expenses, Conditions for Proceeding After Withdrawal
Civil Procedure Abandonment Withdrawal of Minute of Abandonment Expenses Conditions for Proceeding After Withdrawal

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 2 Authorities cited 2 Party arguments 2 Amounts and remedies 2
Sign in to unlock

Parties

John Bethune Walker Lee

Pursuer and Reclaimer

Martha Jamieson or Pollock and others, Andrew Pollock's testamentary trustees

Defenders and Respondents

Procedural Posture

Civil / Reclaiming Note (appeal) Against Decree of Absolvitor by Default

Legal Issues

  1. 1 What expenses must a pursuer pay when withdrawing a minute of abandonment and seeking to proceed with the cause?
  2. 2 Did the Lord Ordinary err in conditioning further procedure on payment of all defenders' expenses to date?

Ratio Decidendi

The Lord Ordinary erred by requiring payment of all taxed expenses to date as a condition for proceeding; only those expenses occasioned by the minute of abandonment and its withdrawal, not available at future stages, should be paid, less any set-off for pursuer's expenses.

Court Disposition

interlocutors of 22nd June and 11th July 1906 recalled; remit to Lord Ordinary to fix diet of proof on proper conditions; pursuer entitled to expenses since 11th July 1906

Orders

  • Recall interlocutors of 22nd June and 11th July 1906
  • Remit to Lord Ordinary to grant pursuer's motion for diet of proof on condition of paying defenders the taxed amount of Outer House expenses occasioned by or in connection with the minute of abandonment and withdrawal, so far as not available at future stages, less £18, 8s. 8d.