BERNARD MILLS v. CANDLELIGHT ASSOCIATION [2013] ScotSC 19 (12 March 2013)

BERNARD MILLS v. CANDLELIGHT ASSOCIATION [2013] ScotSC 19 (12 March 2013)

Where the nature of the obligation is disputed and prescription is a live issue on the pleadings, the onus of proof in a preliminary proof on prescription rests on the pursuer to establish that his right of action has not prescribed before the commencement of the action.

Citation
[2013] ScotSC 19
Parties
Pursuer: Bernard Mills; Defender: Candlelight Association
Jurisdiction
Scotland
Judgment Date
12 March 2013
Procedural Posture
Summary Cause / Interlocutory Motion on Onus of Proof in Preliminary Proof Regarding Prescription
Outcome
Defenders' motion granted; pursuer's motion refused.
Legal Topics
Burden of Proof, Prescription, Limitation of Actions, Volunteer Expenses, Summary Cause Procedure
Civil Procedure Contract Law Burden of Proof Prescription Limitation of Actions Volunteer Expenses Summary Cause Procedure

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Parties

Bernard Mills

Pursuer

Candlelight Association

Defender

Procedural Posture

Summary Cause / Interlocutory Motion on Onus of Proof in Preliminary Proof Regarding Prescription

Legal Issues

  1. 1 On whom does the onus of proof lie in a preliminary proof restricted to whether the pursuer's right of action has prescribed before the commencement of the action?

Ratio Decidendi

Where the nature of the obligation is disputed and prescription is a live issue on the pleadings, the onus of proof in a preliminary proof on prescription rests on the pursuer to establish that his right of action has not prescribed before the commencement of the action.

Court Disposition

Defenders' motion granted; pursuer's motion refused.

Orders

  • Onus of proof in the preliminary proof on prescription rests upon the pursuer.