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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Thomson v Rush, Re Application For Authority To Uplift Consigned Money [2000] ScotCS 135 (26 May 2000) URL: http://www.bailii.org/scot/cases/ScotCS/2000/135.html Cite as: [2000] ScotCS 135 |
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OUTER HOUSE, COURT OF SESSION |
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P94/5/98
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OPINION OF LORD OSBORNE in the petition of ALAN CLARK THOMSON Petitioner: against JOHN RUSH Second Respondent: For Authority to uplift consigned money ________________ |
Petitioner: Di Emidio; Wilson Terris & Co, SSC (for Messrs Malcolm Jack &
Matheson, Dunfermline)
Second Respondent: Party
26 May 2000
This matter came before me at a diet of procedure roll on 26 May 2000. On that occasion, the petitioner was represented by Mr Di Emidio, Advocate. The second respondent was neither represented nor present in person. The diet of procedure roll having been regularly called, Mr Di Emidio moved me to hold that the second respondent was in default and that I should accordingly grant the prayer of the petition. In that connection he referred me to Rule of Court 20.1.(1)(b). Plainly, by virtue of the second respondent having failed to attend the diet of procedure roll, he was in default. Rule of Court 20.1.(4) provides that where a defender is in default in terms of paragraph (1), the Court may grant decree by default against him with expenses. Mr Di Emidio pointed out that the language of this Rule of Court is appropriate to actions. However, he submitted that a party to a petition might still be in default under Rule 20.1.(1). In such a case, an equivalent decree appropriate to the circumstances should be pronounced. He submitted that where a respondent was in default, the prayer of the petition would normally be granted. Since I could discern no reason why I should not follow that course, I pronounced the interlocutor of 26 May 2000 against which, it appears, the second respondent has now reclaimed. Having explained the circumstances in which that interlocutor was pronounced, there is no more which I can usefully say.
