JOHN COWIE v. LUIGI AND RITA MARTALO [2011] ScotSC 138 (24 August 2011)

JOHN COWIE v. LUIGI AND RITA MARTALO [2011] ScotSC 138 (24 August 2011)

The Sheriff's interlocutor of 2 August 2011 granting interim interdict was incompetent because it failed to consider the requirement for caution as mandated by paragraph 3(1) of the Act of Sederunt (Summary Suspension) 1993. Service of a charge is the first step in diligence, and caution must be addressed before sisting diligence. The proper course was to remit the matter for a hearing on caution.

Citation
[2011] ScotSC 138
Parties
Pursuer and Respondent: John Cowie; Defender and Appellant: Luigi Martalo; Defender and Appellant: Rita Martalo
Jurisdiction
Scotland
Judgment Date
24 August 2011
Procedural Posture
Summary Application / Appeal Against Interim Interdict and Procedural Interlocutors
Outcome
appeal allowed; Sheriff's interlocutors recalled; cause remitted for new interim hearing
Legal Topics
Suspension of Charge, Interim Interdict, Diligence, Requirement for Caution, Competency of Interlocutor
Civil Procedure Landlord and Tenant Law Suspension of Charge Interim Interdict Diligence Requirement for Caution Competency of Interlocutor

Case Brief

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Parties

John Cowie

Pursuer and Respondent

Luigi Martalo

Defender and Appellant

Rita Martalo

Defender and Appellant

Procedural Posture

Summary Application / Appeal Against Interim Interdict and Procedural Interlocutors

Legal Issues

  1. 1 Whether the Sheriff erred in granting interim interdict without considering caution as required by Act of Sederunt (Summary Suspension) 1993 paragraph 3(1)
  2. 2 Whether service of a charge constitutes diligence requiring caution before sisting diligence
  3. 3 Competency of the Sheriff's interlocutor of 2 August 2011

Ratio Decidendi

The Sheriff's interlocutor of 2 August 2011 granting interim interdict was incompetent because it failed to consider the requirement for caution as mandated by paragraph 3(1) of the Act of Sederunt (Summary Suspension) 1993. Service of a charge is the first step in diligence, and caution must be addressed before sisting diligence. The proper course was to remit the matter for a hearing on caution.

Court Disposition

appeal allowed; Sheriff's interlocutors recalled; cause remitted for new interim hearing

Orders

  • Appeal allowed
  • Sheriff's interlocutors of 2 and 10 August 2011 recalled