McKindless Bus Company v. Davidson [2007] ScotSC 68 (30 January 2007)

McKindless Bus Company v. Davidson [2007] ScotSC 68 (30 January 2007)

The appeal fails because the binding authority of National Coal Board v Thomson requires constitution of the debt by decree or equivalent for an action of relief. The pursuers' attempt to distinguish their case fails as the factual differences are not material. Settlement without reference to the defender and without judicial constitution of the debt precludes the remedy of relief.

Citation
[2007] ScotSC 68
Parties
Appellant/pursuer: McKindless Bus Company; Respondent/defender: Peter Davidson
Jurisdiction
Scotland
Judgment Date
30 January 2007
Procedural Posture
Civil Appeal / Appeal Judgment
Outcome
appeal refused
Legal Topics
Vicarious Liability, Right of Relief, Constitution of Debt, Settlement Without Reference to Co Delinquent, Pleading Requirements
Employment Law Delict (tort) Contract Law Vicarious Liability Right of Relief Constitution of Debt Settlement Without Reference to Co Delinquent Pleading Requirements

Case Brief

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Parties

McKindless Bus Company

Appellant/pursuer

Peter Davidson

Respondent/defender

Procedural Posture

Civil Appeal / Appeal Judgment

Legal Issues

  1. 1 Whether an employer who settles third party claims arising from an employee's negligence without reference to the employee can recover relief from the employee under delict/common law
  2. 2 Whether constitution of the debt by decree or equivalent is a prerequisite for an action of relief against a co-delinquent

Ratio Decidendi

The appeal fails because the binding authority of National Coal Board v Thomson requires constitution of the debt by decree or equivalent for an action of relief. The pursuers' attempt to distinguish their case fails as the factual differences are not material. Settlement without reference to the defender and without judicial constitution of the debt precludes the remedy of relief.

Court Disposition

appeal refused

Orders

  • Adheres to the interlocutor of the Sheriff
  • Finds the appellants liable to the respondent in the expenses occasioned by the appeal as these might be taxed