14 - Abandonment

Summary

Abandonment is the term given to a situation where a party, usually the pur- suer, (although it is equally applicable to a defender or other party) gives up on their claim.

As counterclaims are treated as separate causes, the abandonment of the pursuer’s action has no effect on the counterclaim. Similarly, the pursuer’s liability for expenses occasioned by the abandonment does not include the expenses of the counterclaim.

Abandonment can arise at common law or under Rules of Court. A minute of abandonment is lodged with the court, accompanied by a motion setting out clearly what the party wishes the court to do. For further consideration of the procedure see MacPhail, Sheriff Court Practice.

The relevant rules of court provide as below.

COURT OF SESSION

CHAPTER 29 ABANDONMENT

Abandonment of actions

• (1) A pursuer may abandon an action by lodging a minute of abandonment in process and—

  • (a) consenting to decree of absolvitor; or

  • (b) seeking decree of dismissal.

• (2) The court shall not grant decree of dismissal under paragraph (1)(b) unless—

  • (a) full judicial expenses have been paid to the defender, and to any third party against whom the pursuer has directed any conclusions, within 28 days after the date of intimation of the report of the Auditor on the taxation of the account of expenses of that party; and

  • (b) where abandonment is made in a proof or jury trial, the minute of abandonment is lodged before avizandum is made in the proof or the charge to the jury by the presiding judge has begun in the jury trial, as the case may be.

• (3) If the pursuer fails to pay the expenses referred to in sub-paragraph (a) of paragraph (2) to the party to whom they are due within the period specified in that sub-paragraph, that party shall be entitled to decree of absolvitor with expenses.

Application of abandonment of actions to counterclaims

Rule 29.1 shall, with the necessary modifications, apply to the abandonment by a defender of his counterclaim as it applies to the abandonment of an action.

Abandonment of petitions, minutes and notes

• (1) A petition, minute or note may be abandoned by the petitioner, minuter or noter, as the case may be—

  • (a) enrolling a motion for abandonment of the cause; and

  • (b) intimating the motion to every person who lodged answers.