SUBMISSIONS for the SECOND DEFENDER

The underlying issues are straightforward:

· The pursuer has no title to raise an action of multiplepoinding.

· Even if he has a bare title, on the evidence he has not proved a legal right to the fund in medio.

All the pursuer offers to prove is fraud, but there was no fraud upon the pursuer by CO&G. The only party with a legal right to the fund is CO&G.

MPL clearly breached the terms of the contract. CO&G was perfectly entitled to draw down on the performance bond, __ a perfectly normal part of international trade law.

The court is invited to uphold the 1st, 2nd, 3rd & 4th pleas in law for the 2nd defender and order the fund in medio to be delivered to the 2nd defender, under deduction of $567 and the 1st defender's taxed expenses (see the joint minute lodged by the parties).

[1] The action is incompetent

I fully accept that this matter was reserved at the outset. There are three strands:

1. the pursuer does not have title and interest;

2. no 'double distress' has been identified; and

3. another form of action would have been more appropriate.

(i) Title and Interest

I accept that the Rule 22 note is very brief and gives scant notice of these issues. But when the Rule 22 note was discussed on a prior occasion before another sheriff a clear indication was given that the case would not be dealt with on the basis of submissions alone. [Here, counsel conceded that the issue could have been decided without evidence.]

But it is possible to take an expansive view of the Rule 22 note.

The issue of competency overlaps with the issue of whether the pursuer has a legal right to the fund. Evidence has been led on all these issues.

Any action should have been dealt with by MPL or HT by raising a simple action for damages or breach of contract: OCR 35.3(1)

HT has a right to claim. The suggestion that HT's right has been assigned has not been substantiated by any evidence whatsoever. There would have to have been some formal assignment. The proposition was not even put to the pursuer in evidence. His position was that he was HT, but I submit that a limited company is a different legal entity from its subscribers. Brito said that for tax purposes it was tax transparent.

· There is a rebuttable presumption that foreign law is the same as Scots law [counsel for the pursuer accepted that proposition].

· Then it is an issue of whether the rebuttable presumption has been overcome by the facts and evidence led. I submit that it has not been overcome. There was a suggestion by an accountant that there is tax transparency. That is a completely different issue from whether a company is a separate entity from its members. The direct and unchallenged evidence of Bohn is that a limited liability company is indeed a separate legal entity.

Assuming foreign law to be the same as Scots law, then according to

Поиск по сайту: