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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Burnside Kemp Fraser & Ors v Moar Or Robb & Anor [1999] ScotCS 210 (31 August 1999)
URL: http://www.bailii.org/scot/cases/ScotCS/1999/210.html
Cite as: [1999] ScotCS 210
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OUTER HOUSE, COURT OF SESSION
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CA165/14/97
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OPINION OF LORD HAMILTON
in the cause
BURNSIDE KEMP FRASER and OTHERS
Pursuers;
against
(FIRST) MRS DAWN ELIZABETH MOAR or ROBB and ANOTHER
Defenders:
________________
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Pursuers: Smith, Q.C.; Balfour & Manson
Defenders: Davidson, Q.C., Anderson Strathern, W.S.
31 August 1999
In March 1992 a helicopter flying between an oil installation in the Scottish sector of the North Sea and an accommodation vessel stationed nearby crashed into the sea. At least nine persons were killed and at least five survivors sustained serious injuries. The first defender in the present action is the widow of one of the deceased and the mother of the children of her marriage with him. She is sued as an individual and as guardian of their children. The second defender is the mother of the deceased. In each of eight other parallel actions the pursuers sue relatives of a deceased and in each of five further parallel actions they sue a survivor.
After the disaster legal advice was taken by the survivors and by relatives of the deceased in respect of prospective claims for damages against, among others, various oil companies concerned with the installation. Most of the prospective claimants, the majority of whom lived in Scotland and the remainder in other parts of the United Kingdom, initially took advice from various British solicitors. Two of the survivors, Mr Barr and Mr Davis, may not at that stage have instructed a British solicitor. In the event the services of American attorneys, Messrs Keaty & Keaty of Louisiana, were engaged with a view to bringing proceedings against various corporate defendants in the United States of America. The forum selected was the State of Texas where it was perceived that jurisdiction might be established against such defendants and where levels of damages on settlement or on judgment were perceived to be higher that those achievable in proceedings in Scotland.
Each surviving claimant or, in the case of families, a representative family member entered into a written "Employment Contract" with Robert B. Keaty of that firm. The contract was in each case in American form. When the claimant had a U.K. solicitor it was countersigned by that solicitor. Under it the claimant (therein referred to as "client") employed Mr Keaty "to represent me for my claims and cause of action for injuries and damages sustained on [the date of the disaster]". Mr Keaty (therein referred to as "Law Office"] accepted the engagement. In consideration of services rendered or to be rendered by Law Office, it was provided that -
"client does hereby agree to set over and assign as well as to pay to Law Office the following interest in the said cause of action, being Forty Per Cent (40%) of any judgement or settlement against any party or Jones Act employer prior to any deductions for expenses, costs etcetera, but that all subject to the condition that the amount of such judgement or settlement that is obtained by Law Office on behalf of client is in excess of SIX HUNDRED THOUSAND DOLLARS ($600,000)."
The interest was to be increased to 50% in the event of an appeal. Restrictions were placed on either party settling the claim without the consent of the other. In respect of agency the contract provided -
"The client hereby constitutes and procures Law Office as her agent in fact, authorising Law Office to sign client's name to any and all instruments necessary to prevent or conclude the litigation or settlement involved herein, all subject to obtaining client's prior written consent as aforesaid. Law Office may associate any additional Counsel it deems appropriate in order effectively to represent client, but all such additional counsel shall be under the direct supervision of Law Office, and Law Office shall personally be responsible for the conduct of the suit or claim and shall personally represent client in any proceedings in Court whether by way of motion, conference with the judge, trial or otherwise, unless such appearance is unlikely to have a significant effect on the successful conduct of said action."
It was further provided -
"It is hereby agreed that, conditional upon success of all claims, client will pay all court costs and the expenses incurred in prosecuting her claims, including the cost of investigation of the claim, witness fees, medical expenses, paralegal, westlaw, lexis, or database services, experts, transportation, copies, postage, long distance telephone, visual aid, as well as any other incidental expenses and Law Office is hereby authorised to make direct disbursement of payment thereof from any settlement, judgement or borrowed funds.
Law Office shall make payment of all sums reasonably necessary for the proper prosecution of the suit or claim. Such expenses shall be subject to reimbursement by client from the proceeds of the claim, whether or not the sum of SIX HUNDRED THOUSAND DOLLARS ($600,000) aforesaid is achieved. The amount of such expenses shall not exceed SEVENTY FIVE THOUSAND DOLLAR ($75,000) save with the prior approval in writing of client...".
The contract continued -
"Law Office acknowledge that client may be required to instruct the commencement of proceedings in Scotland prior to Thirteenth March Nineteen Hundred and Ninety-Four in order to preserve her right of action there. Law Office acknowledge (a) that client doing so is not to be deemed in breach of her contract (b) that Law Office has no claim of any kind in respect of such action save in respect of loan payments and (c) that the assignment, transfer, set over and deliverance herein granted to Law Office does not include in any way any claim or right of action client has in Scotland. Client undertakes to use her best endeavours to ensure that the taking of such action in the U.K. is limited to the minimum necessary to preserve her rights there, and, so far as possible, does not prejudice any suit or claim in the U.S.A. In particular, client shall instruct her solicitors or Counsel in Scotland to move at the earliest opportunity to have the cause sisted (stayed) pending resolution of the suit or claim in the U.S.A.
Law Office shall keep the client fully informed of all progress in her suit or claim, shall copy to client all documentation lodged in court on her behalf or on behalf of any and all defendants, copy to client all decisions, interlocutors and orders of any court in which action is filed on behalf of client, and communicate to client any and all offers of settlement or compromise whether in writing or not that may be made to Law Office."
In contracts where the client was male, the masculine was substituted for the feminine as appropriate. The contract by the first defender in this action was signed by her in August 1993 and countersigned by Mr David Burnside, Advocate in Aberdeen, therein designated "U.K. solicitor". Although full documentation was not before me, it seems that, with the exception of Mr Barr and Mr Davis, each of the other claimants (or family representatives of claimants) signed an Employment Contract with Mr Keaty in essentially the same terms in August 1993, the contract being in each case countersigned by a person designed as "U.K. solicitor". Mr Davis signed such a contract in May 1993, it being countersigned by Mr Alexander Kemp therein designed as "Client's U.K. solicitor". The contract executed by Mr Barr was not produced. His situation remains obscure.
It was suggested in the course of argument (though there are no averments on the matter nor was any relative documentary material placed before me) that an arrangement was entered into between Messrs Keaty & Keaty and each of the British solicitors (or firms of solicitors) under which they would, in the event of the success by their relative client in the Texas proceedings, share the contingency fee provided for under the respective Employment Contract. Such an arrangement, one assumes, was, if entered into, made subject to some American system of law.
Actions were raised in Texas at the instance of the survivors, the families of the deceased and various other persons. The Texas court held that it had jurisdiction to entertain those claims. However, before the actions came to trial on the merits, settlement was reached between the parties to those actions. The amounts received in settlement have not been disclosed to the pursuers in this action or to this court. The indications are, however, that those amounts were substantial.
The pursuers are a firm of Scottish solicitors. Mr Alexander Kemp is presently a partner in that firm. He has assigned to it the claims which form the subject matter of the present action and of the thirteen parallel actions.
For some years prior to 1992 Mr Kemp had from time to time been professionally concerned with claims made by survivors of, or by relatives of persons killed in, major disasters. According to the pursuers' averments he had acted as secretary of groups formed following the Chinook helicopter crash in 1986, the Piper Alpha disaster in 1988, the Lockerbie disaster in 1989 and the Brent Spar disaster in 1990. It is further averred that Mr Kemp had experience of disaster litigation in both the United States of America and in Scotland and of liaising with U.S. attorneys.
The foundation of the claims made in this action and in the parallel actions is a meeting averred to have taken place in Glasgow on 30 September 1994 attended by Mr Kemp and by various other British solicitors at which
"it was agreed that Alexander Kemp [as a partner in Messrs Philip Gauld & Kemp] should formally be appointed as Co-ordinating Secretary to the Group and that his appointment should be backdated to the date of signature of the aforementioned contingency agreements, the backdating being in recognition of the amount of work that had already been done by him and the firm of which he was a partner on behalf of the claimants' group by that date. Further, it was agreed that, in the event of settlement of the litigations in Texas, Alexander Kemp should be entitled to full remuneration of his work as co-ordinator of the group and that his fees should be treated as a disbursement in any U.S. settlement. It was agreed that responsibility for meeting these fees would fall pro rata to the amount of damages awarded to each family and that within each family group responsibility would fall to be divided pro rata to the damages awarded within the family group."
The pursuers make the following further averments in relation to Mr Kemp's role as secretary to the group -
".... the appointment of Alexander Kemp as Secretary to the Group was of significant and material benefit to the defender in respect that he had valuable specialised knowledge and experience in U.S. disaster claims which he shared with all members of the group, he travelled to Texas to investigate the furtherance of litigation there for the benefit of all members of the group, he arranged group meetings at which he gave advice, he kept and circulated minutes of these meetings, he gave advice to the group members regarding the terms of the employment contract that was entered into, he was used by Keaty & Keaty as a regular point of contact in respect of matters which affected the whole group such as advice regarding Scots law where relevant, he provided Keaty & Keaty with details that they required regarding a number of the claimants, Keaty & Keaty regularly reported to him regarding the progress of the claims in Texas and he reported on to the members of the group, he advised Keaty & Keaty in respect of the interdict action that was raised in Scotland and sought and obtained detailed information from them regarding matters relevant thereto both in writing and in person, in Texas [interrupting his holiday to do so] he instructed Balfour & Manson to represent the claimants' interest in the interdict action, attended meetings in connection therewith and reported back to the claimants and advised in respect of the interdict proceedings [which involved a lengthy initial hearing, a reclaiming motion and the lodging of a further motion for interim interdict upon amendment], he communicated with London agents in respect of similar proceedings that were raised in England and advised in respect thereof, he read and considered lengthy transcripts of hearings in Texas and advised in respect thereof, he received and reported in respect of an approach by Mr Wiseman, Principal Legal Counsel for Shell UK Ltd. All of the foregoing work was that required to be done in furtherance of the defenders' interests and was done efficiently and effectively by Alexander Kemp, who drew on his specialised knowledge and experience of such claims in the course of doing so. Considerable economics (sic) of scale were achieved."
The pursuers sue the defenders in the present action for a proportion of the total remuneration claimed in respect of Mr Kemp's services as secretary to the group. Proportions of such remuneration are also claimed against survivors and relatives of deceased in the thirteen parallel actions.
The fourteen actions were raised as commercial actions at the same time and have been dealt with together since then. They were all heard together at debate. Mrs Smith, Q.C., appeared for the pursuers in all the actions. Mr Davidson, Q.C. (instructed by Messrs Anderson Strathern), appeared for the defenders in seven of the actions ("the Anderson Strathern actions") including the present action. Mr McLean, instructed by Messrs John G Gray & Co., appeared for the defenders in four of the parallel actions ("the John G Gray actions"). Mr Summers, instructed by Messrs Drummond Miller, appeared for the defenders in the remaining three parallel actions ("the Drummond Miller actions"). There are some differences among the actions, particularly in respect of the defenders' pleadings as amongst the Anderson Strathern actions, the John G Gray actions and the Drummond Miller actions, but it was accepted that, so far as concerned the general issues raised at the debate, the same approach should be adopted in all the actions. This Opinion deals with those general issues and with the disposal of this action. There are some specialities in relation to certain of the other actions. These will be noticed in the separate short Opinions issued in respect of those other actions.
The first general issue discussed at debate concerned a plea of forum non conveniens raised in the defences to each of the actions. It was accepted that the burden of establishing that plea rested on the respective defenders. In support of it reliance was placed on inter alia events which had occurred in the proceedings in Texas. There were produced certain orders emanating from the court before which those proceedings had been instituted, together with a report by a Mr Watkins, an American lawyer admitted to practice as Attorney and Counsellor at law in all the courts of the State of Texas. At paragraph 7 of his report Mr Watkins, in answer to certain questions posed to him, observes -
"The settlement of the underlying law suits involved claims made by survivors, claims of beneficiaries pursuant to the Wrongful Death Statute, claims of minors, and claims which were made on behalf of the estates of the deceased. The Probate Court, at least to the extent of the claims of the minors and the estates, was required to approve the settlements. For that purpose, the court appointed an administrator and guardian ad litem to receive their independent judgement regarding the reasonableness of the settlement. The approval of the court was necessary due to the potential conflict which existed between the minors and their surviving parents in terms of the division of settlement funds between the parent and the minor child.... Other than approving the settlement agreement which was reached between the parties, the court would not participate in negotiations....."
It appears that a guardian ad litem was appointed to the minor children of Mrs Robb, the first defender in the present action, and to the minor children of the other deceased. Of the seven Anderson Strathern actions, four involve families which include minor children to whom a guardian ad litem was appointed in the Texas proceedings. In all the John G Gray actions there was such an appointment. All the Drummond Miller actions involved survivors with no such appointment. It was, however, accepted by Mrs Smith that the absence of such appointments should not be regarded as a speciality requiring distinct disposal of such actions.
It appears that settlement of the claims in the Texas proceedings was achieved in or about February 1996, such settlements being approved by the court on 16 February. By that date Mr Kemp, it seems, had ceased to act as secretary of the group. There was an indication that relations between him and Messrs Keaty & Keaty may earlier have broken down. The settlement included, in cases involving minor children, the establishment of "section 142 trusts" under which such part of the settlement funds as were for the benefit of minor children were to be managed in accordance with section 142 of the relative Texas property code.
In February 1998 an application was made by motion to the Texas court for an anti-suit order. From the documentation placed before me the application bears to have been made by Mrs Skovronek (a defender in one of the parallel actions) and by a Pat Sebesta, "guardian ad litem for all minor children". Interlocutory relief was initially granted. It was followed on 27 March 1998 by a final order. By the latter the court ordered that a wide range of persons be
"enjoined, prohibited, and restrained from filing, proceeding, or participating in any action, law suit, forum, or venue other than this Court with any matter related or pertaining to this case, including but not limited to any challenge or issue relating or pertaining to in any way to any Order of this Court and/or the individual settlements, expenses and attorney's fees approved by this Court on February 16, 1996."
The Order continued -
"This Court finds that this anti-suit injunction is necessary and proper because the prohibited actions have been threatened and such actions would: (1) pose a threat to this Court's jurisdiction; (2) promote the evasion of important public policies regarding the settlement, the exercise of this Court's probate jurisdiction, and the protection of the minor children's interests and their Section 142 Trusts established by and under the supervision of this Court; and (3) promote a multiplicity of law suits. The court further finds that this anti-suit injunction is necessary to protect the parties before this court from vexatious and harassing litigation...".
A substantial number of persons, including all the claimants and various British solicitors and firms of solicitors, were listed as subject to the injunction. The list included Mr Kemp and the present pursuers.
The circumstances giving rise to the making and granting of the motions for injunction in Texas are not the subject of averment by any of the defenders in the present proceedings. Nor was any information about such circumstances forthcoming at the bar, a somewhat remarkable state of affairs given that Messrs Anderson Strathern, it appears, act in the present action on the instructions of Messrs Keaty & Keaty, the attorneys who presumably acted for Mrs Skovronek in those proceedings. There was likewise no information as to what material, if any, was laid before the Texas judge to persuade him to grant such orders. The present actions were raised early in 1998. In the absence of any alternative explanation, the natural inference is that the Texas orders were sought and obtained in an attempt to prevent the present actions being brought or, if brought, being continued. It was stated at the bar (and not disputed) that the Scottish solicitors involved were unaware of any of the Texas orders until sometime after the final order was pronounced. No remuneration, whether in the form of a disbursement in the Texas settlement or otherwise, has been paid to Mr Kemp or his assignees in respect of his work as group secretary.
Mrs Smith submitted that the plea of forum non conveniens should in each action be repelled. She emphasised that the remuneration being claimed in the present actions was in respect of work done in the special and onerous role of secretary to the group; it was distinct, she said, from professional services rendered to a client by his own solicitor. The September 1994 agreement had envisaged that, in the event of settlement in the U.S. proceedings, Mr Kemp's remuneration would be met as a disbursement in that settlement, rather as an expert's fee might be. Mr Kemp's right to the fee was not, however, dependent on it being in fact so treated. The appropriate forum for the present litigations was, she argued, clearly the Scottish court. The dispute was between a firm of Scottish solicitors and (largely) Scottish clients. The agreement relied on had been made in Scotland where payments under it would be due. The proper law of the contract was Scots law. The work done under it had largely been done in Scotland. Notwithstanding the claims arising out of the disaster had come to be litigated and settled in Texas, the prima facie natural or appropriate forum for adjudication of them had been Scotland. Reference was made to Shell U.K. Exploration and Production Limited v Innes 1995 S.L.T. 807, per Lord Abernethy at p.818F-H, the interdict proceedings referred to in the pursuers' pleadings. The appropriate person to adjudicate on the quantum of the remuneration claimed would be the Auditor of the Court of Session. The pursuers had no connection with Texas nor were they subject to the jurisdiction of any Texas court. They were unaware of any means whereby they could in Texas establish jurisdiction against any of the defenders in respect of their claim; nor had the defenders averred that they could. While the Texas court had supervised the settlement, that settlement had been between the plaintiffs and defendants in those proceedings. Much time and effort had already been expended in the present litigations which would be wasted if the plea of forum non conveniens was sustained. She referred to the "Cambridgeshire" factor mentioned in Spiliada Maritime Corporation v Cansulex Limited [1987] AC 460, especially per Lord Goff at pps.484-6. The principles applicable to a plea of forum non conveniens were clear. Reference was made to Société du Gaz de Paris v Armateurs français 1926 SC (HL) 13, Credit Chimique v James Scott Engineering Group Limited 1979 S.C. 406, The Abidin Daver [1984] A.C. 398 and Spiliada Maritime Corporation v Cansulex Limited. The defenders had not begun to discharge the onus on them. They had been unforthcoming in relation to what had happened in the Texas proceedings and to the funds received in settlement. The pursuers had no knowledge as to what had happened. The subject matter of the present actions was only tenuously linked with Texas. Its real and substantive connection was with Scotland which was the natural forum.
Mr Davidson for the defenders in this and the other Anderson Strathern actions submitted that the plea of forum non conveniens should in each action be sustained and the present actions dismissed, which failing sisted to await the outcome of Texas proceedings. He accepted that the principles of law were as identified in the authorities cited by Mrs Smith. They might in the present circumstances be applied under three heads - (1) the interests of justice, (2) comity and (3) convenience. With reference to (1) the starting point, Mr Davidson argued, was that the pursuers' claim was averred to be a fee agreed to be treated as a disbursement in any relative U.S. settlement. There had been such a settlement in which the court had exercised supervision, a guardian ad litem having been appointed and Wrongful Death jurisdiction having been invoked. In four of the seven sets of claimants now represented by Messrs Anderson Strathern there were minor children; five had involved Wrongful Death claims. As was evident from Mr Watkins' report, a substantial jurisprudence had been developed in Texas in relation to contingency fees which were subject to professional regulation. The nature of a disbursement was also identified in the report. An attorney providing services pursuant to a contingent fee contract would generally not expect or be entitled to receive any remuneration for his services other than that provided for by the contingency fee. The Texas court had appointed a guardian ad litem and had superintended the settlement period. It was accepted that the purpose of such appointment and superintendence was to protect the children in the context of a potential conflict between them and their surviving parents relative to the division of settlement funds. Mr Kemp, by agreeing that any remuneration be treated as a disbursement, had subjected himself to the superintendence of the Texas court in relation to such remuneration. Proceedings in Scotland would in effect deprive the present defenders of the protection which was afforded to them under Texas law and procedure; alternatively, the Scottish court would have to attempt to decide (perhaps without a full appreciation of Texas practice) how the Texas court would have exercised its supervisory jurisdiction in that regard. It was evident that the Texas court had issued an injunction in circumstances in which it regarded the protection it could afford as real. Albeit the pursuers might not have been aware of the motions until after they had been granted, that was because Mr Kemp had chosen to resign. The implication of the position adopted by the pursuers was that, if Mr Kemp had been aware of the settlement in advance, he would have sought his remuneration as a disbursement subject to the supervision of the Texas court. The injunction against proceedings in any forum "other than this Court" carried the implication that the Texas court could itself entertain the pursuers' claim. With reference to (2) Mr Davidson submitted that it should be assumed that the Texas judge granted the injunction after due consideration of the importance of protecting that court's jurisdiction and of avoiding the evasion of public policy restraints on the recovery by lawyers of professional fees. Mr Watkins had reported that under Texas jurisprudence only in most compelling circumstances did a court have discretion to issue an anti-suit injunction. There was no reason to suppose that the injunctions issued had failed to recognise that principle. With reference to (3) Mr Davidson submitted that the present actions gave rise to a wide range of issues of Texas law, including its law of jurisdiction. The defenders in two of the Anderson Strathern cases (Mr Barr and Mr Davis) had never had a British solicitor. Their only legal representative had been Mr Keaty. A question would accordingly arise as to the general authority of a Louisiana attorn
Mr McLean adopted the submissions of Mr Davidson in so far as relevant to his clients. All four families represented by him included minor children for whom section 142 trusts had been established in Texas. It was, he argued, evident from the pursuers' own pleadings and from the documentary material before the court, that the issue was truly a U.S. matter to which U.S. rules fell to be applied. There was no support for the proposition that Scotland was the place for performance of the alleged contract relied on. There was a close connection with the U.S.A. - the action having been raised in Texas, the defendants in it having been subject to the jurisdiction of a U.S. court and the contingency agreements having been entered into with U.S. attorneys. Under the Employment Contracts a percentage of the clients' whole claims arising in respect of the disaster had been assigned to Mr Keaty in return for legal services. Such a contract was a pactum de quota litis and as such unenforceable in Scotland. That contract envisaged other counsel being associated with Mr Keaty but did not envisage lawyers' charges being payable as disbursements. The British solicitors had entered into an arrangement with Messrs Keaty & Keaty to share the contingency fee. That might explain why the account rendered in respect of Mr Kemp's work had apparently not been treated in the settlements as a disbursement. There was considerable doubt as to whether the fee sharing arrangements between the lawyers were enforceable in Scotland. Proceedings in Scotland had been envisaged but only to preserve rights of action. The forum chosen for the substantive litigation was in the U.S.A. The Employment Contracts had been countersigned by the respective clients British solicitors. By that stage the focus of the claims had shifted to the U.S.A. where it was intended that they should stay. The petition presented by Shell U.K. Exploration and Production Limited and others had been resisted for the very purpose of allowing the Texas litigation to proceed. By the time of the alleged contract founded on in the present action (September 1994) the whole matter of costs was recognised as being related to the American arrangements. Hence the reference to disbursements in the minute recording the agreement. Mr Keaty had not been present when those matters were discussed and there was no suggestion that he had approved them. When the whole background was examined it was plain that the jurisdiction with which there was the most real and substantive connection was the State of Texas.
Mr Summers adopted the submissions made by Mr Davidson and by Mr McLean. He submitted that there was "a live process in Texas" as evidenced by the grant of the injunction. The implication was that there an available process there in which the pursuers' claim could be adjudicated. There was also an implication from the establishment of the section 142 trusts in Texas that the trustees would require to return to court there for exoneration and discharge. If there were any doubts about the existence of an available forum in Texas, these could be resolved by a preliminary proof on the plea of forum non conveniens, a course which these defenders offered. The existence of an actual process in Texas removed any doubts about the court there having jurisdiction. There was a risk of looking at matters through the eyes of a Scottish lawyer and of making a wrong assumption as to the non-availability of jurisdiction in Texas. Any arrangement made in September 1994 must be seen in the context of the pre-existence of the Employment Contracts and of the contracts between the U.S. attorneys and the British lawyers. The latter could not at that stage have been acting for the individual clients; those lawyers' only relationship was by that stage with Messrs Keaty & Keaty. In these circumstances the proper law of any contract entered into in September 1994 was Texas law. The minute of the meeting of 30 September 1994 demonstrated the Keaty relationship. A subsequent letter from Messrs Keaty & Keaty made it plain that authority to act in relation to the claims rested solely with that firm.
Mr Davidson and Mr McLean in turn adopted Mr Summers' submissions.
Mrs Smith in response on this issue emphasised that it was for the defenders to satisfy this court that there was another court of competent jurisdiction in which the matter raised in this action could be litigated. The circumstance that the Texas court had in some sense supervised the settlement did not warrant an inference that it had jurisdiction in relation to the present claims. From Mr Watkins' report it appeared that its supervisory role was exclusively in relation to the fair division of settlement funds between parents and children. There was nothing to suggest that the court there had any interest in approving disbursements. It appeared from the form of the contingency agreement appended to Mr Watkins' report that the level of fees was in Texas regulated by contract. The Employment Contracts each provided for expenditure of expenses of up to $75,000 without prior approval by the client. If expenditure above that were approved by a client, a Texas court could not re-make such a contractual arrangement. There was no material before this court to vouch that the Texas court could entertain this issue or in what way it could. Despite the fact that Messrs Anderson Strathern were being instructed in several of the present actions by Messrs Keaty & Keaty, this court was not being provided with an open and frank account of what had happened in Texas. The pursuers were not seeking to disturb the settlements. They were seeking to recover a debt; they had no right to insist that that be paid out of settlement monies. The reference in the minute of the meeting to the remuneration being treated as a disbursement in the U.S. settlement merely entailed that it was payable over and above the contingency fee. It did not import that Mr Kemp was accepting Texas control over his remuneration, particularly in circumstances where it had not been shown that the Texas court would exercise such control. The minute was expressed as an agreement among Scottish solicitors; it was not expressed in Texan language. Its terms suggested that the families (not a court) would have responsibility in respect of the remuneration. The vast majority of the potential witnesses in the present actions lived in Scotland or in England. The notion that Messrs Keaty & Keaty were the sole agents acting for clients as at September 1994 proceeded on the fundamental fallacy that a person could only have one lawyer at one time. There was nothing in the Employment Contracts to oblige a client to withdraw from his existing relationship with his Scottish lawyer or to refrain from entering afresh into such a relationship. Three separate sets of proceedings (including the interdict proceedings before Lord Abernethy) had taken place in Scotland, involving substantial time, trouble and client involvement. The Scottish solicitors had in those matters not been acting on instructions from Messrs Keaty & Keaty. The defenders' arguments constituted merely "a smoke-screen".
In none of the actions before me is it (now) contended that the Court of Session does not have jurisdiction to entertain these claims. The only question is whether this court should in its discretion decline to exercise that jurisdiction on the ground that this court is forum non conveniens. The principles on which the exercise of that discretion should be approached have long been established in Scotland and are not seriously in dispute in this case. These are conveniently summarised by Lord Jauncey in Credit Chimique v James Scott Engineering Group Ltd where at p.410 his Lordship says:
"These principles may be summarised as follows....
(1) that the burden of satisfying the tribunal that the case submitted to it for decision should not be allowed to proceed lies upon the defender who tables the plea; (2) that this burden can only be discharged where weighty reasons are alleged why an admitted jurisdiction should not be exercised, mere balance of convenience being insufficient; (3) that there is another court of competent jurisdiction in which the matter in question can be litigated; and (4) that consideration of these reasons leads to the conclusion that the interests of the parties can more appropriately be served and the ends of justice can more appropriately be secured in that other court."
The first issue which calls for consideration in this case is whether I am satisfied that there is another court of competent jurisdiction in which the matter in question (i.e. the claims made in the present actions) can be litigated. Where (as in The Abidin Daver) there are already proceedings in dependence in a foreign court whose competence to exercise jurisdiction is unchallenged, a court may readily be satisfied that there is (to use the words of Lord Goff in Spiliada at p. 477E) "another available forum". Where there are no such proceedings in dependence, it is for the party advancing the plea of forum non conveniens to satisfy this court on that matter. In Clements v Macaulay (1866) 4 Macph. 583 (another case with American connections) Lord Justice Clerk Inglis said at p.592:
"...I know no case of a plea of this kind being sustained where the defender did not satisfy the Court that there was another Court where the cause could be tried with advantage to the parties and to the ends of justice."
The plea there failed because the defenders' suggestion of the State of Texas as the proper forum was demonstrably unsound and no other proper forum was suggested. In Sim v Robinow (1892) 19 R 665 the plea again failed because it was not demonstrated that the defender was currently subject to the jurisdiction of the only alternative court suggested (that of South Africa).
In the present case there are no depending proceedings in any foreign jurisdiction in which the claim made in this action or any correlative claim is being entertained. No such proceedings have been instituted in Texas by the present pursuers against any of the present defenders; nor has any ruling or declaration been sought in any Texas court by any of the present defenders that they have no liability or some restricted liability in respect of the present claim. None of the defenders is resident in Texas nor, so far as appears, otherwise subject to the jurisdiction of any court there in respect of any fresh proceedings which might be brought by the pursuers for vindication of their present claims. In so far as any alternative forum is suggested in this case, it is the court in Texas which was seised with the present defenders' claims for damages against the oil companies. I am not satisfied on the material placed before me that that court is a court of competent jurisdiction available to try the issue raised in the present actions. Neither the pursuers nor their author, Mr Kemp, was or is a party to any of the actions for damages. There is simply no material before me to support the proposition that the Texas court could, in some way incidentally to the actions for damages (now long settled), have jurisdiction now to consider on its merits an application by the pursuers against any of the defenders for payment of the sums sued for in the present actions. None of the defenders makes any averments directed to any such procedural mechanism. Mr Watkins' report does not address it. When I made enquiry of counsel at the bar, I was informed that counsel were unable to assist in relation to any such procedural mechanism available in the Texas court. All that was or could be relied on was that, some two years after settlement of the actions, the Texas court had issued the anti-suit injunctions which had prohibited inter alios the pursuers from proceeding in any forum "other than this Court" with certain matters. The submission was that this order implied that there was a continuing process in Texas within which the pursuers' present claims could be entertained. I am not satisfied that that implication can properly be drawn. A singular feature of the discussion before me was the paucity of information available both about the circumstances of the settlements and about the circumstances of the application leading to the anti-suit orders. That feature was particularly remarkable in circumstances where the American attorneys acting for the plaintiffs in the damages actions were still, it appears, professionally involved in the present proceedings. I am unable to say whether this state of affairs was the result of a deliberate tactic or was simply a failure to address obviously pertinent matters. There was simply no information as to what had been approved by the Texas court on 16 February 1996 with reference to "the individual settlements, expenses and attorneys' fees". In particular there was no information as to whether remuneration for Mr Kemp's services as co-ordinating secretary for the group had at that time been submitted for approval by the court as an expense or as an element of attorneys' fees and, if so, with what result. There was no information as to whether the Texas court, having approved an arrangement, could re-open it in respect of some matter, whether before it or not before it at the time of approval, and if so at whose instance and in what circumstances it could do so. There was no information as to what material, if any, was placed before the Texas judge in support of the granting of the injunctions. There was no explanation as to why the range of persons injuncted was expressed as widely as it was. What is clear is that the orders were granted ex parte. In some circumstances an anti-suit injunction prohibiting proceedings in any forum "other than t
As an alternative available forum has not been demonstrated, the issue of whether such forum or this court is the appropriate forum does not arise for decision. However, as the matter was fully argued, I express my views on it. I proceed for this purpose on the assumption that the Texas court which was seised with the damages actions could in some way incidentally within the same process or processes entertain and determine on their merits claims by the pursuers against the defenders for proportions of the remuneration claimed for Mr Kemp's work as co-ordinating secretary. I also assume for present purposes that no bar to such a claim, whether by limitation, earlier adjudication or otherwise, could arise to prevent determination of such claims on their merits, or, if it could, that any such bar could and would be waived by all the defenders (though no undertaking of any kind was made on their behalf before me).
It is, I think, plain that, albeit Mr Kemp was and is a lawyer and that his prior experience as a litigation lawyer was important in his role as co-ordinating secretary, the remuneration claimed by the pursuers in respect of his services is a claim for administrative services, albeit with legal elements. Mr Kemp, on the pursuers' account of matters, undertook those services as the result of an appointment made in Scotland by British solicitors acting, it is claimed, on behalf of British clients against the background of a fatal accident occurring at a place over which the Scottish courts had jurisdiction. The services were to be and were carried out largely though not exclusively in Scotland. The principal issue arising on the merits of this claim is whether the British solicitors were duly authorised to commit their clients to this arrangement. (I shall return in due course to the possibly special position of Mr Barr and Mr Davis). That issue of authority turns primarily on evidence of practice in Scotland (and possibly elsewhere in the United Kingdom) in the context of claims arising out of disasters affecting a multiplicity of persons and upon the application of Scots law to the facts as established. I do not ignore the circumstances that by the time the appointment was made contingency fee arrangements (including assignments of proportions of the claims) had been entered into with Louisiana attorneys, that fee sharing arrangements may have been entered into between those attorneys and various British solicitors and that proceedings had already been instituted in Texas. That background may no doubt be relevant when considering the evidence of the alleged practice of appointment of a co-ordinating secretary and the issue of authority, but it does not detract from the conclusion that the critical issues both of fact and of law remain essentially Scottish. The potential witnesses largely live in the United Kingdom. It is not, in my view, possible to hold that a direct relationship of solicitor and client could not as at September 1994 have existed respectively between any of the defenders and any of the British solicitors in attendance at the meeting. Whether or not any such relationship did exist in the circumstances (which may include the pre-existing American arrangements) is a matter which this court can conveniently determine after hearing evidence. No doubt the proper law of the contingency fee arrangements is the law of some State of the United States (although not expressed, probably of Louisiana rather than of Texas); the same may be true of any fee sharing arrangements. But in so far as those arrangements are relevant, no difficulty arises in this court taking account of them. It is not even suggested that in relation to them any special rule of foreign law (with the possible exception of the enforceability in law of certain arrangements) arises. Reference was also made to certain confidentiality provisions in the settlements with the oil companies but, whatever consequences these may have for assessment of the quantum of the claims against each defender, that has in my view no bearing on the merits of the present actions. Reliance was also placed by the defenders on the circumstance that Mr Kemp's remuneration was "to be treated as a disbursement in the U.S. settlement." The question whether on a sound construction of the agreement the remuneration was payable only as a disbursement in the U.S. settlement is a question of Scots law, which in my view is the proper law of the alleged agreement. Equally, the legal effect of the defenders' failure (if it be the case) to cause Mr Kemp's remuneration to be treated as a disbursement is a question of Scots law. If, contrary to the pursuers' contention, it is held by this court that Mr Kemp agreed that his remuneration should be subject to regulation by the Texas court, it may then be necessary to consider any evidence properly
In the whole circumstances I am not satisfied, even on the assumptions made, that the Texas court is the court in which the present claims "may be tried more suitably for the interests of the parties and the ends of justice" (Spiliada Maritime Corporation v Cansulex Limited, per Lord Goff at p.476C). The burden on the defenders "to establish that there is another available forum which is clearly or distinctly more appropriate than the [Scottish] forum" (Spiliada, per Lord Goff at p.477E) has not been demonstrated. It was urged that I should allow a preliminary proof on the issue of forum non conveniens or before disposing of the plea allow the defenders to clarify certain aspects - particularly in relation to the availability of the Texas forum. In these commercial actions, in which ample opportunity has been afforded to the defenders to ingather relative material, I do not, having regard to the pleadings and to the other materials before me, consider that either of those courses is appropriate. I should add that in reaching my conclusions I have placed no reliance on the "Cambridgeshire" factor urged by Mrs Smith. Nor, given the somewhat special character of the role performed by Mr Kemp, do I accept that the Auditor of the Court of Session is necessarily the appropriate person to adjudicate upon the quantum of the claims.
The position of Mr Barr and of Mr Davis may be somewhat special. It was suggested in argument that they had entered into contingency fee arrangements with Messrs Keaty & Keaty without first having any British solicitor acting for them in respect of their claims. That assertion is, in the case of Mr Davis, difficult to reconcile with the terms of the Employment Contract entered into by him and tendered at the close of the discussion. The position of Mr Barr remains, in the absence of documentation, obscure. The pursuers maintain that Mr Barr and Mr Davis are bound as are the other defenders by the agreement reached in September 1994. The solicitor present at that meeting through whose agency they allege that these persons were represented is Mr Kemp as a partner of his then firm of Messrs Philip Gauld & Kemp. The basis upon which that allegation of agency is advanced may not be wholly clear but in the whole circumstances of these litigations I do not regard that factor as sufficient to justify separate treatment of those two litigants.
I shall accordingly in all the actions repel the defenders' respective pleas of forum non conveniens.
On the basis that it is for this court to adjudicate on the claims made in these actions I now consider the defenders' challenge to the relevancy of the pursuers' averments. In terms of their first plea-in-law the pursuers plead that the defenders contracted for the carrying out of Mr Kemp's services. The relative contract (at least so far as the pursuers' primary contention is concerned) is said to have been entered into at the meeting on 30 September 1994 attended by various solicitors. It is not averred that any of the defenders gave to any solicitor in advance of that meeting any specific instructions or authority to enter on their behalf into the agreement then reached. Certain averments are made as to the experience and competence of the solicitors in attendance at the meeting and that it was clear to them that they were committing their clients to liability for Mr Kemp's fee in the event of the clients recovering damages. The averments continue:
"[The solicitors] were not likely so to commit their clients in the absence of the requisite authority. It is normal for a solicitor to seek instructions from his client when he receives any proposal in respect of which he does not have prior authority or instructions either express or implied. No solicitor at the meeting suggested that they would require to revert to their clients for instructions as to whether or not said agreements could be entered into. A minute was sent to each solicitor following upon the meeting and none responded to state that his client had any objection to the terms thereof. In these circumstances the pursuers believe and aver that said solicitors had the requisite authority to enter into the foregoing agreement."
There are no averments that any of the defenders had any particular dealings (whether in the form of oral or written communings or in the form of conduct) with any of the solicitors prior to the meeting from which the court could infer (by the interpretation of general instructions or by implication from particular conduct) that any defender had in advance authorised his or her solicitor to enter into such an agreement on their behalf. There are accordingly no relevant averments of implied actual authority. Nor are there any relevant averments of ostensible authority. There is nothing to point to any dealings between Mr Kemp and any of the defenders as principals amounting to any holding out of the solicitors as having authority to bind them to such an agreement. The averments made relate only to actings of the solicitors and to Mr Kemp's belief based on such actings. Mrs Smith disavowed any suggestion that the "requisite authority" pled was intended to relate to ostensible authority. She argued that general instructions may have been given which on a sound interpretation gave rise to sufficient authority or that conduct may have had that effect; but there are no averments upon the basis of which evidence of such general instructions or such conduct could be led. The averments in the passage quoted (and certain associated averments) do not support any relevant case and will fall to be excluded from probation. Mrs Smith referred in this general connection to Adams & Co v Athya & Co (1878) 26 S.L.R. 20 and to Wylie & Lochhead Limited v Hornsby (1889) 16 R. 907 but neither of these cases in my view warrants the allowance of proof of actual authority (whether from general instructions or from conduct) without a basis being laid on averment.
The pursuers next rely on the following averments -
"It was, in 1994, a normal incident of the group approach that a secretarial fee would be paid to the solicitor so acting. It was within the general authority of a solicitor acting for an individual claimant to agree that the solicitor so acting should be remunerated therefor in the event of the claims succeeding."
Mr Davidson challenged the relevancy of those averments. He contended that as a matter of law the making of this type of arrangement was not within the general authority of a solicitor such that authority might be implied by virtue of his appointment. He referred to Begg on Law Agents (2nd ed.) pps.88-9. He also referred to the same textbook at pps.100-1 and 105-7. It was plain, he argued, that a solicitor's authority was subject to limits. A mere general instruction to progress a claim did not confer authority to commit a client as the pursuers contended. Mr Davidson emphasised that at the date when the agreement relied on took place, litigations were already in existence in Texas. Contingency fee agreements (which provided for attorneys' fees) had already been entered into. The claim here was that the clients were impliedly committed to paying "full remuneration" to Mr Kemp for his services as a disbursement, i.e. in addition to attorneys' fees. The agreement also bore to entitle Mr Kemp to the backdating of remuneration. The circumstances were, he argued, highly unusual and could be seen, as a matter of relevancy, to be outwith the general authority implied. Mr McLean, adopting Mr Davidson's submissions, emphasised that an arrangement which allowed for a solicitor receiving additional remuneration beyond the (negotiated) share of the attorneys' fees assigned under the contingency fee arrangement was a provision which obviously benefited the solicitor rather than the client; such an arrangement should not readily be implied. Mr Summers, who also adopted Mr Davidson's submissions, argued that there was a lack of specification as to how any direct relationship of agent and principal between any British solicitor and any client survived the arrangements made relative to litigation in the U.S.A.
In my view these criticisms, while having some force, do not justify excluding from probation this aspect of the pursuers' claim. The illustrations in Begg (2nd ed.) necessarily reflect the law and practice as it existed at the date of publication of that edition (1883). They give little guidance as to what would impliedly be authorised by a mandate granted in the 1990s to a solicitor instructed in connection with claims arising out of an accident involving multiple fatalities. It will be necessary to determine this issue in the context of evidence of practice bearing on the efficient progressing of such claims in modern circumstances, particularly where proceedings abroad are being contemplated or conducted. The finding in Black v Cornelius (1879) 6 R. 581 that the defender was liable for the pursuer's fees appears to have turned substantially on evidence as to custom. It will also be necessary to consider the assertion of authority in the context of what arrangements (including the contingency fee arrangements and possibly the fee sharing agreements) were in the present cases in place in September 1994. Mr Summers' specific contention raises the question whether in circumstances where there were in existence contingency fee arrangements of the kind indicated there could contemporaneously be a direct relationship of agent and client between a British solicitor and any of the defenders. As noted earlier, I accept Mrs Smith's argument in response that it is not impossible that such relationships could exist contemporaneously.
The pursuers also aver
"In any event, the defender acquiesced in Sandy Kemp's acting in a secretarial role on their behalf and in respect that he carried out valuable services for them, as detailed in the fee note hereinafter referred to, he is entitled to be paid for having done so. Three sets of claimants, Swales, Chisholm and Trehrene have accepted that they are liable to pay a share of Alexander Kemp's fees".
They also aver -
"Following [the meeting among the 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 she object to it having been agreed that Alexander Kemp should act as a secretary to the group and, in the event of the claim succeeding, receive a fee in respect thereof."
The letter referred to contains the following passage:
"I am aware that you did attend the meeting in Glasgow but I enclose a Note prepared by Sandy Kemp and I would be grateful if you would call me or my secretary to indicate your approval of the proposals contained therein".
It is not averred that Mrs Robb expressly indicated such approval. (The averments of actings or lack of action following the meeting on 30 September 1994 differ in a number of respects in the other actions from those in the present action. It will be necessary to deal with those differing matters separately, as I do in short Opinions relative thereto).
Mr Davidson challenged those averments as irrelevant to support any case of acquiescence (or waiver). He submitted that these averments, even as read with the minute and the solicitors' letter, were insufficient to bring home to Mrs Robb knowledge of an agreement made on her behalf which entailed that she would be liable to pay remuneration to Mr Kemp in addition to lawyers' fees. A clear explanation was particularly important where the communication relied on was one from a solicitor to a lay client. In relation to defenders in other of the Anderson Strathern cases (in some of which the sources of relevant knowledge were even more limited) Mr Davidson submitted that it was even clearer that no relevant knowledge had been brought home. These arguments will be discussed more fully in the Opinions issued in those cases. Mr McLean adopted a similar position in relation to the defenders in the John G Gray cases. Mr Summers for the defenders in the Drummond Miller cases also submitted that there were no relevant averments of knowledge by his clients. Mr Summers emphasised the importance in the context of the solicitor and client relationship of the solicitor ensuring that the client understood and appreciated the nature and character of what he or she was committing himself or herself to. He referred to the Code of Conduct for Scottish Solicitors (Parliament House Book F824) and, on the matter of informed consent, to Swindle v Harrison [1997] 4 All ER 705.
Mrs Smith in response on this aspect of the discussion submitted that what the pursuers relied on was the conduct of each of the defenders, including their conduct at the meeting of claimants when the nature of the role being undertaken by Mr Kemp had been explained. Those averments were apt, she argued, to instruct a case of implied contract (apparently directly between Mr Kemp and each of the defenders). She had referred earlier to Landless v Wilson (1880) 8 R. 289, especially per Lord Shand at pps.292-3. Mrs Smith appeared reluctant to adopt a suggestion by the court that the averments might go to ratification of the agreement made between Mr Kemp and the solicitors. She disputed a proposition advanced by Mr Summers that the contracts contended for in the present actions were highly onerous on the defenders. The amounts claimed were, she said, very modest in comparison with the contingency fees undertaken to the attorneys. Mr Kemp's services had been very important and valuable to the defenders, the vindication of whose claims by establishing jurisdiction in Texas was always likely to be difficult. She took strong objection to any suggestion that the British solicitors had failed in their fiduciary duties towards their clients.
This aspect of the pursuers' case is, in my view, somewhat imprecisely expressed. I am not, however, persuaded that it is so clearly irrelevant that it should be excluded from probation. "Acquiesced", as I understood Mrs Smith, was not used in any technical legal sense but imported a preparedness by the defenders, in the context of awareness of what Mr Kemp was doing on their behalf and in the absence of any objection by them, to allow him to continue to perform secretarial services for them. There is no suggestion that any pre-existing rights were departed from. While I have doubts whether a "direct" contract could be spelt out of the actings (and inaction) relied on, the situation is not, in my view, so plain that this aspect of the case is bound to fail. Notwithstanding Mrs Smith's reluctance (which may, although not fully explored, be soundly based) to adopt the suggestion that the circumstances might give rise to implied ratification of the agreement made by the solicitors, that legal basis is not, in my view, so obviously unavailable that it should be excluded from consideration - see Gloag on Contract (2nd ed.) p.146, Chitty on Contracts (26th ed.) at para.31-025. In the whole circumstances this aspect of the case is best determined after the material factual situation has been established.
In the whole circumstances I shall in this action, in addition to repelling the defenders' second plea-in-law (forum non conveniens) and, of concession, their first plea-in-law (lis alibi pendens), sustain their 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". Quoad ultra I am minded to allow to parties a proof before answer of their whole remaining averments. Before determining the precise form of the appropriate order one matter may require further consideration. I was not moved to exclude from probation all or any of the defenders' averments touching on events abroad. Although the plea of forum non conveniens is repelled, those averments may have some residual bearing on the context in which the agreement on which the pursuers found is properly to be set. However, before deciding finally on this aspect, I am prepared to hear counsel further. The case will be put out By Order for discussion of that and other aspects of further procedure.