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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Burnside Kemp Fraser & Ors v Scrimgeour Or Roe & Anor [1999] ScotCS 212 (31 August 1999)
URL: http://www.bailii.org/scot/cases/ScotCS/1999/212.html
Cite as: [1999] ScotCS 212
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OUTER HOUSE, COURT OF SESSION
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CA158/14/97
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OPINION OF LORD HAMILTON
in the cause
BURNSIDE KEMP FRASER AND OTHERS
Pursuers;
against
(FIRST) MRS SHONA ANNE SCRIMGEOUR OR ROE 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 the guardian of their child. The second defender is another adult relative of the deceased.
The pursuers aver that following the disaster the defenders instructed Mr Tyler of Messrs Balfour & Manson to act for them in progressing their claims. They aver that following the meeting between the solicitors on 30 September 1994 the defenders attended the meeting of claimants at which Mr Kemp appeared in his capacity as Secretary of the Group and at which he responded to their questions. The pursuers further aver:
"The defenders were made aware by their said Solicitor, in the course of discussions with them regarding their claims that Alexander Kemp was acting in Secretarial Role (sic), liaising with Robert Keaty and co-ordinating with the other Solicitors in the Group in respect of their claims. At no time did the defender (sic) 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".
In this case, accordingly, although no copy of the minute of the solicitors' meeting appears to have been provided to the defenders nor any express request made for their approval of the proposals, it is said that discussions about Mr Kemp's role took place between the defender and Mr Tyler and that the former took no objection to it having been agreed that Mr Kemp should act as Secretary to the Group. Although the circumstances are somewhat different from those discussed in my Opinion in Burnside Kemp Fraser v Robb, for essentially the same reasons those averments ought, in my view, to be remitted to inquiry.
Accordingly in this action for the reasons expressed in my Opinion in Burnside Kemp Fraser v Robb I shall repel the defenders' second plea-in-law (forum non conveniens) and, of consent, their first plea-in-law (lis alibi pendens). I shall 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". 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.