BORDER PROPERTY DEVELOPMENT Ltd IN THE CAUSE CADUCEUS INVESTMENTS Ltd AGAINST BORDER PROPERTY DEVELOPMENT Ltd [2014] ScotSC 34 (02 June 2014)

BORDER PROPERTY DEVELOPMENT Ltd IN THE CAUSE CADUCEUS INVESTMENTS Ltd AGAINST BORDER PROPERTY DEVELOPMENT Ltd [2014] ScotSC 34 (02 June 2014)

The sheriff erred in granting decree on an unopposed motion in a defended action without proper legal basis in the pleadings or reasoned exercise of discretion; absence of opposition did not justify decree; interests of justice required recall of the decree and further procedure.

Citation
[2014] ScotSC 34
Parties
Pursuer/respondent: Caduceus Investments Limited; Defender/appellant: Border Property Development Limited
Jurisdiction
Scotland
Judgment Date
02 June 2014
Procedural Posture
Commercial Litigation (implement of Missives, Damages) / Appeal Against Sheriff’s Interlocutor (18 November 2013)
Outcome
Appeal allowed; parts 2, 3, and 4 of the interlocutor of 18 November 2013 recalled; cause remitted for further procedure; expenses of appeal awarded to appellants; no expenses due to or by in respect of motion to allow late appeal; appeal certified as suitable for junior counsel.
Legal Topics
Implement of Missives, Damages for Breach of Contract, Decree by Default, Court Discretion, Expenses in Appeals
Contract Law Civil Procedure Implement of Missives Damages for Breach of Contract Decree by Default Court Discretion Expenses in Appeals

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Parties

Caduceus Investments Limited

Pursuer/respondent

Border Property Development Limited

Defender/appellant

Procedural Posture

Commercial Litigation (implement of Missives, Damages) / Appeal Against Sheriff’s Interlocutor (18 November 2013)

Legal Issues

  1. 1 Whether the sheriff erred in granting decree on an unopposed motion in a defended action without proof or proper legal basis in pleadings
  2. 2 Whether the sheriff properly exercised discretion in granting decree
  3. 3 Competence of the motion for decree based on breach of settlement/loan agreement not pled

Ratio Decidendi

The sheriff erred in granting decree on an unopposed motion in a defended action without proper legal basis in the pleadings or reasoned exercise of discretion; absence of opposition did not justify decree; interests of justice required recall of the decree and further procedure.

Court Disposition

Appeal allowed; parts 2, 3, and 4 of the interlocutor of 18 November 2013 recalled; cause remitted for further procedure; expenses of appeal awarded to appellants; no expenses due to or by in respect of motion to allow late appeal; appeal certified as suitable for junior counsel.

Orders

  • Recall parts 2, 3, and 4 of interlocutor of 18 November 2013
  • Remit cause to commercial sheriff for further procedure