THE FIRM OF BARRY AND SUSAN PEART; (SECOND) BARRY PEART; AND (THIRD) SUSAN PEART AGAINST PROMONTORIA (HENRICO) LIMITED [2018] ScotCS CSIH_35 (22 May 2018)

THE FIRM OF BARRY AND SUSAN PEART; (SECOND) BARRY PEART; AND (THIRD) SUSAN PEART AGAINST PROMONTORIA (HENRICO) LIMITED [2018] ScotCS CSIH_35 (22 May 2018)

The court retains a general equitable discretion at common law to grant interdict and interim interdict in exceptional circumstances, even after apparent insolvency is constituted and sequestration proceedings commenced. The Lord Ordinary was entitled to find exceptional circumstances due to solicitor failure and bank security, and to grant interim interdict based on a sufficient prima facie case and balance of convenience.

Citation
[2018] ScotCS CSIH_35
Parties
Pursuer/respondent: The Firm of Barry and Susan Peart; Pursuer/respondent: Barry Peart; Pursuer/respondent: Susan Peart; Defender/reclaimer: Promontoria (Henrico) Limited
Jurisdiction
Scotland
Judgment Date
22 May 2018
Procedural Posture
Reclaiming Motion (appeal) / Interlocutory (interim Interdict)
Outcome
reclaiming motion refused; interim interdict maintained
Legal Topics
Sequestration, Interim Interdict, Variation of Contract, Waiver, Apparent Insolvency, Bank Security, Solicitor Negligence
Bankruptcy Contract Law Civil Procedure Sequestration Interim Interdict Variation of Contract Waiver Apparent Insolvency +2 more

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Parties

The Firm of Barry and Susan Peart

Pursuer/respondent

Barry Peart

Pursuer/respondent

Susan Peart

Pursuer/respondent

Promontoria (Henrico) Limited

Defender/reclaimer

Procedural Posture

Reclaiming Motion (appeal) / Interlocutory (interim Interdict)

Legal Issues

  1. 1 Competency of interim interdict to halt sequestration proceedings
  2. 2 Existence of exceptional circumstances justifying interdict
  3. 3 Prima facie case for contractual variation or waiver by bank

Ratio Decidendi

The court retains a general equitable discretion at common law to grant interdict and interim interdict in exceptional circumstances, even after apparent insolvency is constituted and sequestration proceedings commenced. The Lord Ordinary was entitled to find exceptional circumstances due to solicitor failure and bank security, and to grant interim interdict based on a sufficient prima facie case and balance of convenience.

Court Disposition

reclaiming motion refused; interim interdict maintained

Orders

  • Interim interdict against Promontoria (Henrico) Limited proceeding with sequestration maintained
  • Sheriff court sequestration proceedings to remain sisted