Giovanni Guidi Against Promontoria (chestnut) Ltd
| Jurisdiction | Scotland |
| Judge | Sheriff S Reid |
| Neutral Citation | [2021] SC GLW 59 |
| Court | Sheriff Court |
| Date | 01 October 2021 |
| Docket Number | CA60/19 |
| Published date | 14 October 2021 |
SHERIFFDOM OF GLASGOW AND STRATHKELVIN AT GLASGOW
[2021] SC GLW 59
CA60/19
JUDGMENT OF SHERIFF S REID
in the cause
GIOVANNI GUIDI
Pursuer
against
PROMONTORIA (CHESTNUT) LTD
Defender
Glasgow, 1 October 2021
The sheriff, having resumed consideration of the cause:
1. Repels the defender’s preliminary pleas (pleas-in-law 1, 2 & 3); Sustains the pursuer’s
preliminary pleas (pleas-in-law 3 & 4) in respect of the defender’s averments anent its
alleged title to the Standard Security and its alleged entitlement to serve the Charge; quoad
ultra Repels the pursuer’s preliminary pleas;
2. quoad crave 1, Grants decree for production as craved, whereby, Ordains the
defender to lodge in process, within 21 days of the date hereof, the pretended charge for
payment of the sum of £450,258.97 served upon the pursuer at the instance of the defender
on 15th November 2016 (“the Charge”); Reserves to pronounce further thereon;
3. quoad crave 3, Grants decree as craved, whereby, Finds and Declares that the
defender has no right or title to the standard security granted by the pursuer in favour of the
Clydesdale Bank dated 11th July 2011 and registered in the Land Register of Scotland on 15th
2
July 2011 over the pursuer’s registered interest as proprietor of 7 Sweethope Gardens,
Bothwell, Glasgow G71 8BT under title number LAN100490, and also registered in the
Books of Council and Session on 18th February 2016 (“the Standard Security”), and has no
title to sue upon, enforce or otherwise take action against the pursuer on the footing thereof;
4. quoad ultra Allows parties a proof of their respective averments on dates to be
hereafter assigned;
5. ex proprio motu Finds that the defender is in default of the obligation incumbent upon
it in terms of rule 21.1(1) of the Ordinary Cause Rules 1993 (“OCR 1993”) in respect that,
without leave of the court, it has failed to lodge in process, complete and unredacted, the
Assignation founded upon by it (or a true copy thereof certified in terms of section 6 of the
Civil Evidence (Scotland) Act 1988 (“the 1988 Act”));
6. ex proprio motu Ordains the defender, within 21 days of today’s date, either (i) to
lodge in process, complete and unredacted, the Assignation founded upon and adopted by
it in its pleadings (or a true copy thereof certified in terms of section 6 of the 1988 Act) or (ii)
to seek and obtain leave of the court to lodge a redacted certified copy thereof in discharge
of the obligation incumbent upon it in terms of rule 21.1(1), OCR 1993; UNDER
CERTIFICATION that if the defender fails to do so, decree by default may be granted
against it as craved; Reserves to pronounce further thereon;
7. ex proprio motu Ordains the defender, within 21 days of today’s date, either (i) to
lodge in process, complete and unredacted, the Sale & Purchase Agreement referred to by it
in its pleadings (or a true copy thereof certified in terms of section 6 of the 1988 Act) or (ii) to
seek and obtain leave of the court to lodge a redacted certified copy thereof in discharge of
the obligation incumbent upon it in terms of rule 21.1(1), OCR 1993; UNDER
3
CERTIFICATION that if the defender fails to do so, decree by default may be granted
against it as craved; Reserves to pronounce further thereon;
8. Finds the defender liable to the pursuer in the expenses of the diet of debate on 18 &
19 March 2021, together with preparation therefor, all as taxed; Allows an account thereof to
be given in; and Remits the same, when lodged, to the auditor of court to tax and to report.
SHERIFF
NOTE:
Summary
[1] This action raises two discrete conundrums that have generated much litigation and
academic discussion in recent years.
[2] The first issue concerns the extent to which an assignation of an all-sums due
standard security must follow the form and wording of the statutory forms in schedule 4 to
the Conveyancing & Feudal Reform (Scotland) Act 1970 (“the 1970 Act”) (including whether
such an assignation must state a precise sum due by the debtor to the assignor at the date of
the assignation); and, the consequence, if any, of departing from that statutory prescribed
wording.
[3] The second issue is whether a party founding upon a document in its pleadings, or
incorporating its terms therein, must lodge the document (or at least a true copy of the
document) in process, whole and unredacted; and, if so, the consequence, if any, of its
failure to do so.
To continue reading
Request your trial