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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> GRAEME M FRASER & CO & Ors v. THE ROYAL BANK OF SCOTLAND PLC [2013] ScotCS CSIH_56 (20 June 2013)
URL: http://www.bailii.org/scot/cases/ScotCS/2013/2013CSIH56.html
Cite as: [2013] ScotCS CSIH_56

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SECOND DIVISION, INNER HOUSE, COURT OF SESSION

Lord Justice Clerk

Lady Dorrian

Lord Drummond Young

[2013] CSIH 56

A50/11

OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD JUSTICE CLERK

in the reclaiming motion

in causa

GRAEME M FRASER & CO AND OTHERS

Pursuers and Reclaimers;

against

THE ROYAL BANK OF SCOTLAND PLC

Defenders and Respondents:

_______________

Act: party

Alt: Delibegović-Broome; Dundas & Wilson CS LLP

30 May 2013

[1] This is an action by a firm of chartered accountants against their former bank, seeking the reduction of loan agreements between the parties dated August 2005 and August 1998. The action was raised following upon charges for payment against the pursuers by the defenders in respect of each agreement.

[2] The second pursuer, who is one of the partners in the firm and who alone is pursuing the action, maintains in the fourth article of condescendence that the 2005 loan agreement is not signed by the two partners of the firm as it purports to show. It is averred that this document (presumably meaning the signatures) is a forgery. In the seventh article of condescendence it is averred that the 1998 loan agreement is also not signed by the second pursuer as it purports to be. It too is therefore a forgery. The defenders, on the other hand, maintain that the loan agreements were properly executed and that each was sent to the pursuers for such execution and duly returned by them.

[3] According to the written pleadings then, that is what this case is about; a factual dispute as to whether the loan agreements are forgeries or not. There are many averments about the background to the agreements and concerning the subsequent history of the loans, but these do not appear to have a direct bearing on this central issue. The case appears to revolve solely around the formal validity of the agreements.

[4] On 8 August 2012, the defenders moved the court to appoint a preliminary proof, as the next stage in the procedure, confined to the issue of whether the loan agreements are indeed forgeries. The Lord Ordinary records that she had difficulty in following what alternative the second pursuer desired, but noted that at certain points he seemed to accept that one or other of the deeds may not be a forgery. Rather he was maintaining that he had been deceived into signing one or more of the documents. However, there is no case seeking reduction of the loan agreements on that basis in the written pleadings. Given the content of the pleadings, the Lord Ordinary allowed a preliminary proof on what appears to be the main, if not the only, issue focussed on record. It is against that interlocutor, which allows the second pursuer to prove his central case on record, that he reclaims.

[5] In his grounds of appeal, the second pursuer sets out a variety of complaints in relation to what the Lord Ordinary may or may not have failed to record about his submissions to her. This has no bearing on the essential question of what procedure should now be followed. He maintains that what he wants is a "trial" at which parties could put forward whatever evidence they wanted. It became clear in the course of the submissions, as it is perhaps also in the grounds of appeal, that the second pursuer wishes to raise a variety of matters concerning deception, failures on the part of lawyers and courts and errors of one sort or another by a variety of individuals. Most of these matters, it has to be stressed, are not contained in the averments of fact with which the case is formally concerned. Where they are averred, their connection to the remedies sought is currently obscure.

[6] This court determines the appropriate procedure to be followed in any action on the basis of the issues which are identified in the written pleadings. It does not order enquiry on the content of oral submission or of documents which are not themselves part of the pleadings. The court will not allow a general enquiry into events not the subject of averment. The only issue of relevance in this action appears to be whether the loan agreements are forged or not. That is the matter of fact for proof. That is what the Lord Ordinary has allowed.

[7] For all these reasons, the court will refuse the reclaiming motion and adhere to the interlocutor of the Lord Ordinary dated 8 August 2012.

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