Bank of Scotland v. Kunkel-Griffin [2004] ScotCS 236 (02 November 2004)

Bank of Scotland v. Kunkel-Griffin [2004] ScotCS 236 (02 November 2004)

The defender failed to satisfy the requirement of acting 'without fault' in not defending timeously, as she unreasonably failed to seek advice from a Scottish lawyer despite having sufficient opportunity. Consequently, the motion for recall of decree in absence must be refused.

Citation
[2004] ScotCS 236
Parties
Pursuer: The Governor and Company of the Bank of Scotland; Defender: Mrs Brigitte Kunkel-Griffin
Jurisdiction
Scotland
Judgment Date
02 November 2004
Procedural Posture
Application for Recall of Decree in Absence / Opposed Motion Hearing
Outcome
motion refused
Legal Topics
Recall of Decree in Absence, Personal Guarantee, Service of Process, Cautionary Obligations
Civil Procedure Contract Law Recall of Decree in Absence Personal Guarantee Service of Process Cautionary Obligations

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Parties

The Governor and Company of the Bank of Scotland

Pursuer

Mrs Brigitte Kunkel-Griffin

Defender

Procedural Posture

Application for Recall of Decree in Absence / Opposed Motion Hearing

Legal Issues

  1. 1 Whether the defender meets the requirements for recall of decree in absence under Rule of Court 19.2(5)
  2. 2 Whether the defender acted without fault in failing to defend timeously
  3. 3 Whether a prima facie defence on the merits has been disclosed

Ratio Decidendi

The defender failed to satisfy the requirement of acting 'without fault' in not defending timeously, as she unreasonably failed to seek advice from a Scottish lawyer despite having sufficient opportunity. Consequently, the motion for recall of decree in absence must be refused.

Court Disposition

motion refused