McMullan v. Murray & Ors [2004] ScotCS 192 (30 July 2004)
- Citation
- [2004] ScotCS 192
- Status
- Judgment
- Jurisdiction
- Scotland
- Posture
- Civil Action / Preliminary Proof Ordered
More details
- Posture
- Civil Action / Preliminary Proof Ordered
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court sustained the defenders' plea to relevancy regarding section 17, excluding related averments, but allowed preliminary proof on section 19A issues.
Court disposition
plea to relevancy sustained in part; preliminary proof allowed
Orders
- Averments in Condescendence 5 excluded from further consideration
- Preliminary proof allowed on averments in Condescendence and Answer 7 relating to section 19A
02
Material facts
Parties
David McMullan
Pursuer Counsel: McEachran, Q.C., Stirling; Drummond Miller, W.S.Sister Bernard Mary Murray and Others
Defenders Counsel: Cullen, Q.C., Duncan; Simpson & Marwick, W.S.03
Procedural history
Posture
Civil Action / Preliminary Proof Ordered
04
Questions and positions
Legal issues
- 01
Whether the pursuer's claim is barred by section 17 of the Prescription and Limitation (Scotland) Act 1973
- 02
Whether issues under section 19A of the Act warrant preliminary proof
Party arguments
- Applicant
- The pursuer seeks to proceed with claims notwithstanding limitation issues, relying on section 19A for discretion.
- Respondent
- The defenders argue the claim is irrelevant due to section 17 and seek exclusion of related averments.
05
Court’s reasoning
Legal principles
- 01
Prescription and Limitation (Scotland) Act 1973
Claims barred by statutory limitation are excluded unless discretion under section 19A is exercised.
06
Ratio, limits and disposition
Ratio decidendi
The court sustained the defenders' plea to relevancy regarding section 17, excluding related averments, but allowed preliminary proof on section 19A issues.
Court disposition
plea to relevancy sustained in part; preliminary proof allowed
- Averments in Condescendence 5 excluded from further consideration
- Preliminary proof allowed on averments in Condescendence and Answer 7 relating to section 19A
Source and reliance status
Official court record
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Judgment text
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Court record
Judgment
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BAILII >> Databases >> Scottish Court of Session Decisions >> McMullan v. Murray & Ors [2004] ScotCS 192 (30 July 2004) URL: https://www.bailii.org/scot/cases/ScotCS/2004/192.html Cite as: [2004] ScotCS 192 [ New search ] [ Help ] McMullan v. Murray & Ors [2004] ScotCS 192 (30 July 2004) OUTER HOUSE, COURT OF SESSION A1399/00
OPINION OF LORD JOHNSTON in the cause DAVID McMULLAN Pursuer; against SISTER BERNARD MARY MURRAY and OTHERS Defenders: ____ Pursuer: McEachran, Q. C., Stirling; Drummond Miller, W. S. Defenders: Cullen, Q. C., Duncan; Simpson & Marwick, W. S. 30 July 2004 [1] For the reasons given by myself in my Opinion in relation to the case of Adeline Bowden, I shall sustain the defenders' plea to the relevancy so far as it relates to issues raised by section 17 of the Prescription and Limitation (Scotland) Act 1973. I shall exclude from further consideration the averments in Condescendence 5. Quoad ultra I shall allow a preliminary proof in relation to the averments in Condescendence and Answer 7 relating to the issues focused under section 19A of the same Act. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII URL: https://www.bailii.org/scot/cases/ScotCS/2004/192.html
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