Adamson v. Gilllbrand [1923] ScotLR 457 (18 May 1923)

Adamson v. Gilllbrand [1923] ScotLR 457 (18 May 1923)

A reclaiming note lodged in error with the wrong Division of the Court of Session does not render the appeal incompetent where the statutory requirements are directory, no imperative provision is breached, no prejudice is suffered, and the error is promptly corrected; the objection to competency is repelled and the case proceeds.

Citation
[1923] ScotLR 457
Parties
Pursuer (reclaimer): Captain Frank John Adamson; Defender (respondent): Mrs Laura Gillibrand
Jurisdiction
Scotland
Judgment Date
18 May 1923
Procedural Posture
Civil / Reclaiming Note (appeal) Against Dismissal at First Instance
Outcome
objection to competency repelled; case to proceed
Legal Topics
Competency of Reclaiming Note, Procedural Error, Court of Session Practice
Civil Procedure Competency of Reclaiming Note Procedural Error Court of Session Practice

Case Brief

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Parties

Captain Frank John Adamson

Pursuer (reclaimer)

Mrs Laura Gillibrand

Defender (respondent)

Procedural Posture

Civil / Reclaiming Note (appeal) Against Dismissal at First Instance

Legal Issues

  1. 1 Whether a reclaiming note lodged in error with the wrong Division of the Court of Session is incompetent and fatal to the right of appeal
  2. 2 Whether statutory requirements regarding lodging reclaiming notes are mandatory or directory

Ratio Decidendi

A reclaiming note lodged in error with the wrong Division of the Court of Session does not render the appeal incompetent where the statutory requirements are directory, no imperative provision is breached, no prejudice is suffered, and the error is promptly corrected; the objection to competency is repelled and the case proceeds.

Court Disposition

objection to competency repelled; case to proceed

Orders

  • The objection to the competency of the reclaiming note is repelled.
  • The cause is appointed to be put to the roll.