Esmail & Anor v Bank Of Scotland & Anor [2001] ScotCS 275 (30 November 2001)

Esmail & Anor v Bank Of Scotland & Anor [2001] ScotCS 275 (30 November 2001)

The motion to amend defences is refused insofar as it seeks to introduce new causation and contributory negligence issues, as these could have been raised earlier, are not based on new factual material, and would prejudice the pursuers by causing further delay; only unopposed amendments relating to set-off are allowed.

Citation
[2001] ScotCS 275
Parties
Pursuer: Mahomed Ikbal Esmail; Pursuer: Mrs Zubeda Esmail; Defender: The Governor and Company of the Bank of Scotland; Defender: Bashir Latif Karim
Jurisdiction
Scotland
Judgment Date
30 November 2001
Procedural Posture
Ordinary Action / Motion to Amend Defences
Outcome
motion to amend allowed in part and refused in part
Legal Topics
Power of Attorney, Unauthorised Withdrawals, Set Off, Contributory Negligence, Quantum of Damages
Banking Law Contract Law Negligence Power of Attorney Unauthorised Withdrawals Set Off Contributory Negligence Quantum of Damages

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Parties

Mahomed Ikbal Esmail

Pursuer

Mrs Zubeda Esmail

Pursuer

The Governor and Company of the Bank of Scotland

Defender

Bashir Latif Karim

Defender

Procedural Posture

Ordinary Action / Motion to Amend Defences

Legal Issues

  1. 1 Whether the first defenders may amend their defences to introduce new issues of causation and contributory negligence
  2. 2 Whether the power of attorney authorised the second defender to make withdrawals from the joint account
  3. 3 Whether the first defenders were negligent or in breach of contract in permitting withdrawals

Ratio Decidendi

The motion to amend defences is refused insofar as it seeks to introduce new causation and contributory negligence issues, as these could have been raised earlier, are not based on new factual material, and would prejudice the pursuers by causing further delay; only unopposed amendments relating to set-off are allowed.

Court Disposition

motion to amend allowed in part and refused in part

Orders

  • First defenders' defences amended only in respect of unopposed set-off averments
  • Motion to amend defences quoad ultra refused