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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Burnside Kemp Fraser & Ors v Davies Or Skovronek & Anor [1999] ScotCS 209 (31 August 1999)
URL: http://www.bailii.org/scot/cases/ScotCS/1999/209.html
Cite as: [1999] ScotCS 209
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OUTER HOUSE, COURT OF SESSION
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CA156/14/97
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OPINION OF LORD HAMILTON
in the cause
BURNSIDE KEMP FRASER AND OTHERS
Pursuers;
against
(FIRST) MRS CHRISTINE ANNE DAVIES OR SKOVRONEK 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 in this action is the widow of one of the men killed in the disaster of 14 March 1992. She is sued as an individual and as guardian of their children. The second defender (another adult relative of the deceased) is no longer party to the action, she, it appears, having accepted liability to pay a share of Mr Kemp's fees.
The circumstances of this case are, insofar as concerns the first defender, essentially the same as those in Burnside Kemp Fraser v Robb. I refer to my Opinion in that case. Mrs Skovronek is averred to have attended the meeting of claimants at which Mr Kemp's role was explained. She is also said to have received from Mr Burnside a copy of the minute of the solicitors' meeting with a request that she give her approval to the proposals outlined therein. It is not suggested that she expressly indicated such approval. For the reasons given in my Opinion in Burnside Kemp Fraser v Robb the pursuers' case based on "acquiescence" should in my view be remitted to inquiry.
Accordingly in this action I shall repel the first defender's third plea-in-law (forum non conveniens) and, of concession, her second plea-in-law (lis alibi pendens). I shall also repel, of concession, the first defender's first plea-in-law (no jurisdiction). I shall sustain the first defender's 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.