THE FIRM OF BARRY AND SUSAN PEART; (SECOND) BARRY PEART AND (THIRD) SUSAN PEART AGAINST PROMONTORIA (HENRICO) LIMITED [2018] ScotCS CSIH_1 (21 December 2017)

THE FIRM OF BARRY AND SUSAN PEART; (SECOND) BARRY PEART AND (THIRD) SUSAN PEART AGAINST PROMONTORIA (HENRICO) LIMITED [2018] ScotCS CSIH_1 (21 December 2017)

A defender who has lodged a caveat and is adversely affected by an interim order prior to calling is a 'party' for the purposes of reclaiming, as the context requires a broader definition than that in RCS 1.3.

Citation
[2018] ScotCS CSIH_1
Parties
Pursuer and Respondent: The Firm of Barry and Susan Peart; Pursuer and Respondent: Barry Peart; Pursuer and Respondent: Susan Peart; Defender and Reclaimer: Promontoria (Henrico) Limited
Jurisdiction
Scotland
Judgment Date
21 December 2017
Procedural Posture
Civil / Interlocutory Appeal (reclaiming Motion)
Outcome
Note of Objection repelled; reclaiming motion allowed to proceed.
Legal Topics
Definition of Party, Interim Interdict, Reclaiming Motion Competency
Civil Procedure Definition of Party Interim Interdict Reclaiming Motion Competency

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Parties

The Firm of Barry and Susan Peart

Pursuer and Respondent

Barry Peart

Pursuer and Respondent

Susan Peart

Pursuer and Respondent

Promontoria (Henrico) Limited

Defender and Reclaimer

Procedural Posture

Civil / Interlocutory Appeal (reclaiming Motion)

Legal Issues

  1. 1 Whether a defender who has not entered appearance or lodged a writ is a 'party' entitled to reclaim against an interlocutor granting interim interdict before the summons is lodged for calling

Ratio Decidendi

A defender who has lodged a caveat and is adversely affected by an interim order prior to calling is a 'party' for the purposes of reclaiming, as the context requires a broader definition than that in RCS 1.3.

Court Disposition

Note of Objection repelled; reclaiming motion allowed to proceed.

Orders

  • Reclaiming motion to proceed
  • Application for urgent disposal granted