small claims
case digest

Ross & Liddell Ltd -v- Ahmed 1992 SCLR 528









 

Issue - effect of decree of absolvitor and the importance of timeously minuting for recall of decree under rule 27(1).

P raised small claims action against D but this was dismissed as premature. P then raised an identical second claim, which was competent, but P failed to attend preliminary hearing.

With respect to the second action, the Sheriff granted decree absolving the defender. P then lodged a late minute for recall of decree (after 21 day period, rule 27). The Sheriff refused to exercise his dispensing power under rule 34 to allow the minute to be received late.

P then raised an identical third summons against D. The Sheriff held the third action as incompetent (rule 13(4)) on the basis that it was never competent for 'an action in identical terms to be raised following the decree of absolvitor granted in that action' (this principle is known as 'res judicata'). (Stewart -v- Greenock Harbour Trustees (1868) 6. M 958 and Glasgow & South Western Railway Co., -v- Boyd & Forrest 1917 SC (HL) 15 applied).