Van McKellar | Partner

Summary Justice

Most Scottish civil court actions tend to resolve short of proof (i.e. an evidential hearing).   That’s usually because the parties settle, but there can be other procedural reasons.  Sometimes a case can be knocked out at debate (i.e. a hearing for legal argument) because it’s incompetent or fundamentally irrelevant.  But sometimes also a case can be disposed of by way of summary judgement.

Summary judgement is an application that now either party to the action can make.   It’s fairly exceptional – and while recent changes to the court rules lowers the height of the bar to be cleared, the party making the application still has a high bar to clear.    In applying for summary judgement in the Sheriff Court the relevant rule provides that a party has to satisfy the court that

  • the opposing party’s case (or any part of it) has no real prospect of success; and
  • there exists no compelling reasons why summary judgement should not be granted at that stage

In understanding that rule, it has to be borne in mind that a Sheriff will need some persuading that a case (or part of it) should be disposed of summarily, instead of by way of debate and/or hearing of the evidence at proof.   But the rule sets out on what basis a Sheriff can be so persuaded.

it’s a rule we rely on from time to time, and its more the exception than the norm, but one we’ve found to be very helpful when deployed.  If the application doesn’t resolve the case, it can often help move it on.  The rule’s unusual in its application because the court is allowed to have regard to not just the parties’ pleadings but also all documentation lodged and assess issues of success and compelling reason in that context even though no evidence has been heard from witnesses.  The rule also empowers the court to require any party to produce documentation or to lodge affidavits.

Given the time court action can take, and that including the queue to get a case to debate or proof, this can be a handy rule to use,  particularly where a flimsy defence has been entered to a court action.

Access to Justice?

Servitude rights form a very important part of Scottish property law, and particularly access rights.

A party’s property may, for example, be subject to someone’s servitude rights to take access over it.  Being a servitude, the right of access can be enforced at court.

Servitude access disputes often arise because property development is intended.  That was the backdrop to a recent Sheriff Court decision, where four neighbours sought to challenge a party’s servitude right of access and with it the party’s ability to develop his land by using the access route.  That case was resolved by legal argument, as the disputed servitude access right was part of the parties’ titles.  The terms of the written right were subject to detailed criticism, but survived challenge.

In rejecting the challenge the court helpfully emphasised some key points about how to interpret a written servitude of access

  • that the wording of the servitude was not to be interpreted strictly
  • that indeed even if it were poorly drafted, the servitude right would be recognised, provided its meaning was clear
  • that the exact access route does not have to be set out in the writings
  • that conditions attached to the use of the servitude can be considered separately to the servitude right itself
  • a party benefitting from a servitude right of access generally can exercise that right for all lawful purposes and indeed improve the ground over which the access runs
  • but that a party’s exercise of a servitude right of access must be civiliter’ (a Latin term essentially limiting exercise to that least reasonably disadvantaging the property owner’s rights)

Servitude disputes can be involved and complex but this court’s recent court decision points to the practical principles that are often adopted in resolving the arcane legal arguments that can be made.

Disputes about servitudes can turn on their individual facts and circumstances as well as the often complicated legal issues, and advices on the specifics of a particular case should always be sought.

Van McKellar

Van McKellar

Dispute Resolution Team

“I see my role as a problem solver – seeking to understand the factual basis of my clients’ disputes and applying a legal and commercial analysis in seeking to resolve them, whether by negotiation or by means of litigation or some other alternative means of dispute resolution.”

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