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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Burnside Kemp Fraser & Ors v Parker & Anor [1999] ScotCS 207 (31 August 1999)
URL: http://www.bailii.org/scot/cases/ScotCS/1999/207.html
Cite as: [1999] ScotCS 207
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OUTER HOUSE, COURT OF SESSION
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CA163/14/97
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OPINION OF LORD HAMILTON
in the cause
BURNSIDE KEMP FRASER AND OTHERS
Pursuers;
against
(FIRST) MISS WENDY PARKER AND ANOTHER
Defenders:
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Pursuers: Smith, Q.C.; Balfour & Manson
Defenders: Davidson, Q.C.; Anderson Strathern, W.S.
31 August 1999
The first defender was the partner of one of the men killed in the disaster of 14 March 1992. The second defender, an adult relative of the deceased, is no longer a party to this action, she, it appears, having accepted a liability to pay a share of Mr Kemp's fees.
In this action the pursuers aver:
"Following [the meeting of the solicitors] the defenders attended a meeting of the claimants, also at the Hilton Hotel on the same day, which was attended by Alexander Kemp in his capacity as Secretary of the Group, at which meeting he responded to their questions. At no time did the first defender object to it having been agreed that Alexander Kemp should act as Secretary to the Group".
The pursuers, having later condescended on the case based on the general authority of a solicitor, continue:
"In any event, the first defender acquiesced in Sandy Kemp's acting in a Secretarial role on their (sic) behalf and in respect that he carried out valuable services for them (sic), as detailed in the fee note hereinafter referred to, he is entitled to be paid for having done so".
Although those averments provide a somewhat meagre and unspecific basis for any alternative case upon which the first defender can be held contractually bound to make payment of any fee in respect of Mr Kemp's services, I do not, in the context of this series of actions and against the circumstance that the case based on the general authority of a solicitor is in any event to go to probation, regard it as appropriate to exclude from inquiry this alternative contention.
Accordingly for those reasons and for the reasons expressed in my Opinion in Burnside Kemp Fraser v Robb I shall repel the first defender's third plea-in-law (forum non conveniens) and of concession her first plea-in-law (no jurisdiction) and her second plea-in-law (lis alibi pendens). I shall sustain her fourth 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.