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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Overwaele, Re Recall of an Award of Sequestration [2000] ScotCS 277 (7 November 2000)
URL: http://www.bailii.org/scot/cases/ScotCS/2000/277.html
Cite as: [2000] ScotCS 277
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OUTER HOUSE, COURT OF SESSION |
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P283/00
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OPINION OF LORD HARDIE in the Petition of MARIAN VAN OVERWAELE Petitioner; for Recall of an award of sequestration
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Petitioner: Stirling Campbell Smith, W.S.,
First respondent: Hardman, Drummond Miller, W.S.,
14 September 2000
On 14 September 2000 counsel for the first respondent and the petitioner appeared before in respect of the first respondent's motion which was in the following terms:-
"On behalf of the respondent and in respect that the petitioner has failed to implement the terms of Rule 14.8 to dismiss the petition for want of insistence"
I was advised that the petition in this case was lodged on 28 March 2000 and was served on the first respondent on 11 April 2000. Answers for the first respondent were lodged on 3 May 2000. Nothing happened until 20 June 2000 when the agents for the first respondent intimated a motion in identical terms to the motion which came before me on 14 September. The motion in June was dropped because the petitioner's agents withdrew from acting. On 4 July 2000 the Honourable Lord Osborne ordained the petitioner to intimate to the Deputy Principal Clerk of Session within 14 days from the date of intimation of Lord Osborne's interlocutor whether or not the petitioner insisted upon her petition. New agents were instructed by the petitioner but nothing happened to progress the petition. On 7 August 2000 those agents withdrew from acting. On 24 August 2000 the solicitors for the first respondent intimated to the petitioner the motion which was heard by me.
Counsel for the first respondent drew my attention to the failure of the petitioner to comply with Rule 14.8. Counsel for the petitioner did not dispute the history of events or the failure to comply with Rule of Court 14.8 and asked me to exercise my discretion in terms of Rule of Court 2.1, to grant relief from the petitioner's failure to comply with Rule of Court 14.8 and to allow a short period of adjustment. Counsel for the petitioner was unable to advise me of any mistake, oversight or other excusable cause for the failure to comply with Rule of Court 14.8. In these circumstances and having regard to the time which had elapsed since Answers were lodged and also to the fact that no efforts were made by the petitioner to progress this action, I did not consider that it was appropriate to grant the relief sought under Rule of Court 2.1. Accordingly I granted the motion on behalf of the first respondent and dismissed the petition.