Bank Of Scotland v. Kunkel-Griffin [2005] ScotCS CSIH_18 (15 February 2005)

Bank Of Scotland v. Kunkel-Griffin [2005] ScotCS CSIH_18 (15 February 2005)

It was incorrect for the Lord Ordinary to refuse the motion for leave as incompetent; the Inner House has discretion under Rule 38.7 to allow a reclaiming motion out of time, and in the absence of a specific rule, the court can invoke its nobile officium to provide a remedy.

Citation
[2005] ScotCS CSIH_18
Parties
Pursuers and Respondents: The Governor and the Company of the Bank of Scotland; Defender and Reclaimer: Brigitte Kunkel-Griffin
Jurisdiction
Scotland
Judgment Date
15 February 2005
Procedural Posture
Civil Appeal / Interlocutory Motion for Leave to Reclaim (appeal) Out of Time
Outcome
interlocutor of 3 February 2005 recalled; matter remitted to Lord Ordinary to consider defender's motion for leave to reclaim
Legal Topics
Reclaiming Motion, Leave to Appeal Out of Time, Nobile Officium, Recall of Decree in Absence
Civil Procedure Reclaiming Motion Leave to Appeal Out of Time Nobile Officium Recall of Decree in Absence

Case Brief

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Parties

The Governor and the Company of the Bank of Scotland

Pursuers and Respondents

Brigitte Kunkel-Griffin

Defender and Reclaimer

Procedural Posture

Civil Appeal / Interlocutory Motion for Leave to Reclaim (appeal) Out of Time

Legal Issues

  1. 1 Whether the Lord Ordinary erred in refusing the motion for leave to reclaim as incompetent due to expiry of reclaiming days
  2. 2 Whether the Inner House can grant leave to reclaim out of time under Rule of Court 38.7
  3. 3 Whether the court can treat the motion as an application to the nobile officium

Ratio Decidendi

It was incorrect for the Lord Ordinary to refuse the motion for leave as incompetent; the Inner House has discretion under Rule 38.7 to allow a reclaiming motion out of time, and in the absence of a specific rule, the court can invoke its nobile officium to provide a remedy.

Court Disposition

interlocutor of 3 February 2005 recalled; matter remitted to Lord Ordinary to consider defender's motion for leave to reclaim

Orders

  • Recall of the Lord Ordinary's interlocutor dated 3 February 2005
  • Remit to the Lord Ordinary to consider the defender's motion for leave to reclaim, to be enrolled on 16 February 2005