M'Carroll v. M'Kinstery and Blackwood [1924] ScotLR 331 (09 February 1924)

M'Carroll v. M'Kinstery and Blackwood [1924] ScotLR 331 (09 February 1924)

The Court held that the pursuer's averments, as amended, regarding the discovery of the back letter and the explanation for its previous absence were sufficiently relevant to constitute res noviter veniens ad notitiam. The importance of the document and the circumstances of its discovery justified allowing proof. However, the averments of fraud and perjury alone were not relevant grounds for reduction unless supported by extrinsic evidence. Proof was allowed on the basis of the newly discovered document, not on the fraud allegations per se.

Citation
[1924] ScotLR 331
Parties
Pursuer: Peter M'Carroll; Defender: James M'Kinstery; Defender: Dugald Blackwood
Jurisdiction
Scotland
Judgment Date
09 February 1924
Procedural Posture
Civil Reduction / Inner House, First Division, Post Pleadings, on Relevancy and Allowance of Proof
Outcome
Proof allowed on the issue of res noviter veniens ad notitiam; action not dismissed.
Legal Topics
Reduction of Decree, Res Judicata, Fraud on the Court, Newly Discovered Evidence (res Noviter Veniens Ad Notitiam), Ownership of Shares, Trusts and Fiduciary Relationships
Civil Procedure Property Law Trusts Reduction of Decree Res Judicata Fraud on the Court Newly Discovered Evidence (res Noviter Veniens Ad Notitiam) Ownership of Shares +1 more

Case Brief

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Parties

Peter M'Carroll

Pursuer

James M'Kinstery

Defender

Dugald Blackwood

Defender

Procedural Posture

Civil Reduction / Inner House, First Division, Post Pleadings, on Relevancy and Allowance of Proof

Legal Issues

  1. 1 Whether the pursuer's averments of newly discovered documentary evidence (res noviter veniens ad notitiam) are relevant to allow reduction of prior decrees
  2. 2 Whether allegations of fraud and perjury in the former action constitute relevant grounds for reduction
  3. 3 Whether the pursuer's explanation for not producing the back letter in the former action is sufficient to justify reopening the case

Ratio Decidendi

The Court held that the pursuer's averments, as amended, regarding the discovery of the back letter and the explanation for its previous absence were sufficiently relevant to constitute res noviter veniens ad notitiam. The importance of the document and the circumstances of its discovery justified allowing proof. However, the averments of fraud and perjury alone were not relevant grounds for reduction unless supported by extrinsic evidence. Proof was allowed on the basis of the newly discovered document, not on the fraud allegations per se.

Court Disposition

Proof allowed on the issue of res noviter veniens ad notitiam; action not dismissed.

Orders

  • Allow proof on the pursuer's averments as amended regarding the newly discovered back letter and the circumstances of its discovery.
  • No limitation of proof; general proof allowed.