RICHARD ANDERSON AS EXECUTOR DATIVE OF THE LATE MAJOR W.A. ANDERSON v. NICHOLSON BROS & SHETLAND ISLANDS COUNCIL [2014] ScotSC 41 (02 May 2014)

RICHARD ANDERSON AS EXECUTOR DATIVE OF THE LATE MAJOR W.A. ANDERSON v. NICHOLSON BROS & SHETLAND ISLANDS COUNCIL [2014] ScotSC 41 (02 May 2014)

The action was dismissed ex proprio motu due to the pursuer's failure to lodge a certified record, a fundamental procedural default not remedied or excused. The motions to amend and to dismiss for abuse of process were refused as the circumstances did not meet the high threshold for abuse of process, and the parties and interests in the parallel Court of Session action were not identical. Personal liability for expenses was not imposed as the pursuer was not dominus litis.

Citation
[2014] ScotSC 41
Parties
Pursuer: Richard Anderson as Executor Dative of the late Major W A Anderson; First Defenders: Nicholson Bros; Second Defenders: Shetland Islands Council
Jurisdiction
Scotland
Judgment Date
02 May 2014
Procedural Posture
Ordinary Cause (converted From Small Claim) / Motion Hearing and Dismissal for Default
Outcome
Action dismissed for default (failure to lodge certified record)
Legal Topics
Abuse of Process, Default for Failure to Lodge Certified Record, Amendment of Pleadings, Personal Liability for Expenses, Surface Water Drainage, Nuisance, Res Judicata
Civil Procedure Property Law Planning Law Abuse of Process Default for Failure to Lodge Certified Record Amendment of Pleadings Personal Liability for Expenses Surface Water Drainage +2 more

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Parties

Richard Anderson as Executor Dative of the late Major W A Anderson

Pursuer

Nicholson Bros

First Defenders

Shetland Islands Council

Second Defenders

Procedural Posture

Ordinary Cause (converted From Small Claim) / Motion Hearing and Dismissal for Default

Legal Issues

  1. 1 Whether the action constitutes an abuse of process due to parallel litigation
  2. 2 Whether amendment to pleadings should be allowed
  3. 3 Whether failure to lodge a certified record justifies dismissal

Ratio Decidendi

The action was dismissed ex proprio motu due to the pursuer's failure to lodge a certified record, a fundamental procedural default not remedied or excused. The motions to amend and to dismiss for abuse of process were refused as the circumstances did not meet the high threshold for abuse of process, and the parties and interests in the parallel Court of Session action were not identical. Personal liability for expenses was not imposed as the pursuer was not dominus litis.

Court Disposition

Action dismissed for default (failure to lodge certified record)

Orders

  • Pursuer's motions 7/2 and 7/5 refused
  • First defender's motion 7/4 refused