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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Bank Of Scotland v. Kunkel-Griffin [2005] ScotCS CSIH_18 (15 February 2005)
URL: http://www.bailii.org/scot/cases/ScotCS/2005/CSIH_18.html
Cite as: [2005] CSIH 18, [2005] ScotCS CSIH_18
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Bank Of Scotland v. Kunkel-Griffin [2005] ScotCS CSIH_18 (15 February 2005)
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FIRST DIVISION, INNER HOUSE, COURT OF SESSION |
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Lord President Lord Hamilton Lord Eassie
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[2005CSIH18] A1407/03 OPINION OF THE COURT delivered by THE LORD PRESIDENT in the action at the instance of THE GOVERNOR AND THE COMPANY OF THE BANK OF SCOTLAND Pursuers and Respondents; against BRIGITTE KUNKEL-GRIFFIN Defender and Reclaimer: _______ |
Act: Fairley; Anderson Strathern (Pursuers and Respondents)
Alt: Logan; Campbell Smith &c (Defender and Reclaimer)
15 February 2005
[1] On 3 February 2005 the Lord Ordinary heard the defender's motion for leave to reclaim against his interlocutor of 2 November 2004 by which he refused her motion for recall of the decree in absence against her. He refused the motion for leave as incompetent, standing the expiry of the reclaiming days. It appears that this referred to the fact that the motion for leave had been enrolled on 15 November 2004, that is to say 13 days after the refusal of the motion for recall. [2] We are satisfied that it was incorrect for the Lord Ordinary to refuse the motion for leave as incompetent. No doubt it is desirable that care should be taken to obtain leave within such a period as to leave time for the marking of a reclaiming motion within the reclaiming days. However, the question whether a reclaiming motion should be allowed to proceed out of time, and, if so, on what conditions, is a matter for the Inner House in accordance with Rule of Court 38.7. In our view the Lord Ordinary should have considered the motion for leave on its merits. [3] The defender's motion is that we should (1) grant leave to reclaim out of time in terms of Rule 38.7 on the condition that leave to reclaim is granted by the Lord Ordinary and that for a period 21 days; and (2) direct the Lord Ordinary to consider the application for leave to reclaim to be enrolled on 16 February 2005 within that time. [4] We consider that it is not competent for this court to use Rule 38.7 to grant a conditional leave to reclaim. The Rule presupposes that, where leave is required, it has already been granted. It is not intended to be used in advance of a hypothetical granting of leave. [5] However, a solution requires to be found for a situation for which the Rules of Court make no provision, but which clearly calls for a remedy in the administration of justice. We are satisfied that it is open to us, and appropriate, to treat the defender's motion as an application to the nobile officium, without the need for a separate application, to the extent of recalling the interlocutor of the Lord Ordinary dated 3 February 2005 and remitting to him to consider the defender's motion for leave to reclaim, which is to be enrolled on 16 February.