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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Burnside Kemp Fraser & Ors v Innes [1999] ScotCS 201 (31 August 1999)
URL: http://www.bailii.org/scot/cases/ScotCS/1999/201.html
Cite as: [1999] ScotCS 201
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OUTER HOUSE, COURT OF SESSION
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CA155/14/97
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OPINION OF LORD HAMILTON
in the cause
BURNSIDE KEMP FRASER AND OTHERS
Pursuers;
against
ANDREW INNES
Defender:
________________
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Pursuers: Smith, Q.C.; Balfour & Manson
Defender: Summers; Drummond Miller, W.S.
31 August 1999
The defender is one of the survivors of the disaster of 14 March 1992. The pursuers aver that following the disaster the defender instructed Mr David Burnside, Solicitor, to act for him in progressing his claims. They aver that following the meeting of solicitors on 30 September 1994:
"The defender attended a meeting of the claimants, also at the Hilton Hotel on the same date, which was attended by Alexander Kemp in his capacity as Secretary of the Group, at which meeting he responded to their questions. Following the meeting a copy of the Minute thereof was sent to the first defender under cover of David Burnside's letter of 20 October 1994 and at no time did he object to it having been agreed that Alexander Kemp should act as Secretary to the Group and, in the event of the claim succeeding, receive a fee in respect thereof".
They later aver, after reference to the case based on the general authority of a solicitor:
"In any event, the defender acquiesced in Sandy Kemp's acting in a secretarial role on his behalf and in respect that he carried out valuable services for him, as detailed in the fee note hereinafter referred to, he is entitled to be paid for having done so".
The documentation before me discloses that in his letter Mr Burnside sought "your formal approval of the proposals outlined therein" and that a response was received bearing to come from both the defender in this action and his brother, Gavin Innes, the defender in another of the parallel actions. The letter addresses a number of matters raised in the copy Minute and in its accompanying letter. In relation to the matter of Mr Kemp's remuneration it appears to raise more questions than it answers. The effect of these communings cannot, in my view, properly be determined without inquiry. The pursuers also make averments in relation to communings in or about July 1994 (relative to a broadcast concerning the accident) which may bear the implication that the defender then acknowledged that Mr Kemp was "one of my lawyers". For essentially the same reasons as those expressed in my Opinion in Burnside Kemp Fraser v Robb the pursuers' case based on "acquiescence" cannot satisfactorily be disposed of on the pleadings. Although the formulation of the defender's pleadings in relation to the plea of forum non conveniens in this action (one of the Drummond Miller actions) differs from that of the defenders in Burnside Kemp Fraser v Robb, the discussion of that plea as it applies in all the actions has been dealt with in that Opinion.
Accordingly for the above reasons and for the reasons given in Burnside Kemp Fraser v Robb I shall repel the defender's fifth plea-in-law (forum non conveniens) and sustain his seventh plea-in-law to the extent of excluding from probation the pursuers' averments in article 4 of the condescendence from "All of the Solicitors" to "enter into the foregoing agreement". The case will be put out By Order for discussion of the matters referred to in the final paragraph of my Opinion in Burnside Kemp Fraser v Robb.