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18 November, 2019

Promontoria (Chestnut) Ltd v Ballantyne Property Services [2019] CSOH 91

Case summary by Michael Way, advocate

Lady Wolffe rejects defenders’ plea of lis alibi pendens in commercial debt dispute

Facts

The pursuer claims payment of £1,180,742.49 from the defenders (a partnership and its two partners individually). The sums is said to be due in terms of facility letters entered between the defenders and the Clydesdale Bank. The pursuer claims to have been assigned those debts by the Clydesdale Bank.

The defenders maintain a number of lines of defence to the action, including ineffectual assignation and prescription. However, this debate concerned a plea of lis alibi pendens – i.e. that there was prior action, competently raised in Scotland between the same parties, in which the same question was raised. The prior actions, in this case, were summary applications seeking to enforce creditor’s rights under standard securities.

Issues

There was one principal issue for the Court:

1. Is the “same question” raised in the pursuer’s summary application in the Sheriff Court, as is raised in these proceedings?

Decision

The “same question”?

To answer this question, Lady Wolffe noted that it was necessary to consider the the nature, subject matter and remedies of the two actions as well as their pleadings (at [12]).

While the defences to each action advanced similar lines, the Court found that any answer provided in the summary application would not be conclusive of the commercial action; this was a significant factor militating against finding that the proceedings involved the same question (at [13]).

Lady Wolffe noted that the object of the summary application was as a means to realise the real right in security and to confer power on the pursuer as secured creditor. The summary application was not, on this analysis, a separate action on the debt. It was a different mode of enforcement (at [14]). The defenders’ analysis would, the Court held, have the effect of depriving real rights in security of the “commercial and practical significance (at [17]).

Ultimately, the Court considered the historical purpose of the plea of lis alibi pendens (at [20]). The plea is rooted in the notion that not only is double litigation on the same claim vexatious, but that it would be wrong to allow double decrees to be obtained. A double decree would either be repetitive (so useless) or cumulative (so unjust) or contradictory (so confusing).

In this case, in light of the different decrees that may be granted in this action and in the summary application, there is no question of the defenders being asked to do the same thing twice or to do contradictory things (at [20]). The defenders’ plea of lis alibi pendens could not, therefore, succeed.

Representation

Ampersand’s Craig Sandison QC and Jamie Gardiner appeared for the defenders.

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