MCMAHON MCFADYEN & CO v. BUCHANAN CLOTHING CO LTD and LACK LTD [1999] ScotSC 4 (23rd March, 1999)

MCMAHON MCFADYEN & CO v. BUCHANAN CLOTHING CO LTD and LACK LTD [1999] ScotSC 4 (23rd March, 1999)

The sheriff properly exercised discretion in ordering caution for expenses, considering the weak defence and financial difficulties of the defenders. The sheriff was entitled to refuse continuations and to grant decrees by default. The sheriff principal found no material flaw in the sheriff's approach and refused the appeals.

Citation
[1999] ScotSC 4
Parties
Pursuer: McMahon McFadyen & Co; Defender: Buchanan Clothing Co Ltd; Defender: Lack Ltd
Jurisdiction
Scotland
Procedural Posture
Civil Appeal / Appeal Against Interlocutors Ordering Caution for Expenses and Decrees by Default
Outcome
appeals refused
Legal Topics
Caution for Expenses, Summary Decree, Company Liquidation, Judicial Discretion, Default Decree
Civil Procedure Company Law Caution for Expenses Summary Decree Company Liquidation Judicial Discretion Default Decree

Case Brief

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Parties

McMahon McFadyen & Co

Pursuer

Buchanan Clothing Co Ltd

Defender

Lack Ltd

Defender

Procedural Posture

Civil Appeal / Appeal Against Interlocutors Ordering Caution for Expenses and Decrees by Default

Legal Issues

  1. 1 Whether the sheriff erred in ordering company defenders to find caution for expenses
  2. 2 Whether the sheriff applied the correct legal test in exercising discretion to order caution
  3. 3 Whether the sheriff erred in refusing continuations and in granting decrees by default

Ratio Decidendi

The sheriff properly exercised discretion in ordering caution for expenses, considering the weak defence and financial difficulties of the defenders. The sheriff was entitled to refuse continuations and to grant decrees by default. The sheriff principal found no material flaw in the sheriff's approach and refused the appeals.

Court Disposition

appeals refused

Orders

  • Appeals refused
  • Sheriff's interlocutors of 29 October 1998, 30 November 1998, and 9 December 1998 adhered to