Scottish Court of Session Decisions

In this action the defender is one of the survivors of the disaster of 14 March 1992. There may be some question as to the nature of his relationship with Mr Kemp or his former firm as at and prior to September 1994 but that issue cannot be satisfactorily determined without inquiry. Insofar as concerns the relevancy of the pursuers' pleadings on the merits of the action, the circumstances are otherwise the same as those in Burnside Kemp Fraser v Parker.

Accordingly for the reasons expressed in my Opinions in that case and in Burnside Kemp Fraser v Robb I shall repel the defender's second plea-in-law (forum non conveniens) and, of concession, his first plea-in-law (lis alibi pendens). I shall sustain his third 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.