Kilna v. De La Salle [2004] ScotCS 55 (05 March 2004)

Kilna v. De La Salle [2004] ScotCS 55 (05 March 2004)

The delay in calling the summons was due to excusable cause, namely the late return of documents after timely service in a foreign jurisdiction. The agents acted properly and the failure was not their personal fault. The court exercised its discretion to grant relief and allow the case to call late.

Citation
[2004] ScotCS 55
Parties
Pursuer: Charles Kilna; Defender: De La Salle
Jurisdiction
Scotland
Judgment Date
05 March 2004
Procedural Posture
Civil / Motion for Relief From Failure to Comply With Procedural Rule (late Calling of Summons)
Outcome
motion granted
Legal Topics
Dispensing Power, Late Calling of Summons, Service of Process, Excusable Cause
Civil Procedure Dispensing Power Late Calling of Summons Service of Process Excusable Cause

Case Brief

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Parties

Charles Kilna

Pursuer

De La Salle

Defender

Procedural Posture

Civil / Motion for Relief From Failure to Comply With Procedural Rule (late Calling of Summons)

Legal Issues

  1. 1 Whether the court should exercise its dispensing power to relieve the pursuer from the consequences of failing to call the summons within the prescribed period due to late service on a defender.

Ratio Decidendi

The delay in calling the summons was due to excusable cause, namely the late return of documents after timely service in a foreign jurisdiction. The agents acted properly and the failure was not their personal fault. The court exercised its discretion to grant relief and allow the case to call late.

Court Disposition

motion granted

Orders

  • case allowed to call late
  • no conditions imposed on the pursuer