Disposal of Action Without Proof II Flashcards
When can the pursuer abandon his case?
Once litigation is commenced it should reach a conclusion as soon as reasonably practicable but the pursuer can abandon the case.
Abandonment by pursuer - e.g. Where pursuer looks at his case and sees he is pursuing the wrong remedy or wrong court or his case is not as strong as he thought.
In any of the above situations the pursuer may decide that he wishes to cut his losses and put a stop to the litigation.
Can the defender abandon his case?
Defender may withdraw defences - e.g. By withdrawing defences and consenting to decree.
What are the considerations when deciding to abandon the action?
When deciding to abandon the action the considerations are whether the pursuer is likely to want to raise the action again in the future. The pursuer may wish to raise a fresh action where a sheriff refuses a motion for commission of diligence to inspect property shortly before a diet of proof. It is clear that the pursuer would not succeed at the proof and decided to abandon the action at the sheriff court then proceeding to raise proceedings in the Cos for an order to inspect the property which was granted before raising a fresh action also in the court of session.
Must make sure you obtain clear instructions in writing before you take steps to abandon an action.
How is abandonment done?
Abandonment can be done at common law or under the provisions of ch 23.
The appropriate method of abandonment is whether or not the pursuer will wish to preserve his right to raise an action again in the future. If the pursuer does not wish to raise a new action then he may choose to abandon either at common law or under rule 23.1.1a.
If the pursuer wishes to raise a new action he will be advised to abandon under rule 23.1.(B) but he can also abandon at common law and reserve the right to abandon.
The considerations are– absolvitor or dismissal.
Types.
Common law.
Rule 23.1(1)(a).
Rule 23.1(1)(b).
How is a case abandoned at common law?
This is set in motion by the pursuer lodging a minute of abandonment in the following terms:
“McLEAN for the pusuer stated and hereby states to the court that the pursuer abandons his cause at common law.”
No conditions or qualifications are allowed in the minute*.
The pursuer should then enrol a Motion to abandon in terms of the minutes.
It is probably the case that the sheriff has no Discretion to refuse to allow the pursuer to abandon.
No discretion to allow/disallow abandonment.
But the sheriff does have Discretion re type of decree (e.g. Dismissal or absolvitor) and expenses.
The usual results will be decree of absolvitor with expenses against the pursuer.
If the defender misled the pursuer as to the identify of the proper defender to the action, the pursuer may have to abandon the action when the mistake is discovered. In this situation the pursuer may seek expenses in action even though he has abandoned it.
How is a case abandoned under rule 23.1(1)(a)?
This provides that the pursuer may abandon the cause at any time before final judgment by loading a minute of abandonment in which he/she consents to a minute of absolvitor.
Form is:
“McLEAN for the pursuer stated and hereby states to the court that the pursuer abandons his cause and consents to decree of absolvitor in terms of rule 23.1(1)(a) of the Ordinary Cause Rules.”
Then the pursuer must make a Motion for abandonment in terms of the minute which accompanies the minute. If the minute is silent for expenses and the defender wishes to be entitled to expenses, as he usually will, then the defender should oppose the motion.
Outcome of abandonment under this is usually decree of absolvitor with expenses.
Abandonment under this is much the same as at common law but at common law it is also competent to pronounce decree of dismissal.
How is a case abandoned under rule 23.1(1)(b)?
Most common way.
Form provides that the pursuer may abandon cause at any time before final judgment by lodging minute of abandonment in which he/she seeks decree of dismissal:
“McLEAN for the pursuer stated and hereby states to the court that the pursuer abandons this cause and seeks decree of dismissal in terms of rule 23.1(1)(b) of the Ordinary Cause Rules.”
This does not found a decree of res judicata.
Motion for Minute of Abandonment to be received.
The sheriff is only entitled to grant decree of dismissal provided the pursuer has paid full judicial Expenses to the pursuer within 28 days of the date of taxation for expenses.
If the pursuer fails to pay the expenses then the defender becomes entitled to the decree of absolvitor of the expenses.
The minute should be lodged together with a motion asking for minute to be received.
Thereafter the sheriff will pronounce an interlocutor appointing the defender to lodge an account of expenses within a specified period of time although there is no particular period mentioned in the rules.
Once this has been lodged the auditors of the court will tax it and report. The audtiros decision can be challenged in the normal way. The pursuer then has 28 days to pay the expenses found due by the auditor of the court.
If he pays within that period he should lodge the receipt in court and enrol a motion seeking dismissal of the action. If he does not pay within the period then defender may enrol a motion for decree of absolvitor with expenses.
There is one curiosity since the rule under this provision only makes room for expenses after taxation but no provision for what happens in the event that the parties agreed expenses in advance.
Taxation.
Payment.
What if the expenses are agreed in advance?
VP Packaging Ltd v. The ADF Partnership 2002 SLT 1224.
In this case which referred to the equivalent CoS rule the LO held that where the pursuer has agreed the expenses, it is taken as having abandoned its rights of dismissal and it would not be appropriate to exercise the dispensing power to overlook the failure to comply with the rules as they have been a deliberate failure rather than one caused by inadvertence.
Beattie v. The Royal Bank of Scotland plc 2003 SLT 564.
In this case (also CoS rule) the LO declined to follow VP and held instead that abandonment under reservation remained competent under common law and it would be appropriate to exercise the dispensing power because it is designed to avoid unecessary proceedings and expenses.
Beattie is preferable to VP.
This rule is most common because in most cases the pursuer will be found liable in expenses so they might as well reserve the right to raise a fresh action.
Can the abandonment be withdrawn?
The pursuer can apply by motion to withdraw at any time before final decree has been pronounced. This will probably be granted provided the pursuer has acted in good faith.
It is likely that they will be penalised in expenses however.
The rules of abandonment apply equally to that of counterclaim of the defender and indeed rule 23.2 of the OCR makes express provision for this.
