Burnside Kemp Fraser & Ors v Moar Or Robb & Anor [1999] ScotCS 210 (31 August 1999)

Burnside Kemp Fraser & Ors v Moar Or Robb & Anor [1999] ScotCS 210 (31 August 1999)

The defenders failed to demonstrate that the Texas court was an available or competent forum for the present claims, as there were no pending proceedings there and no evidence that the Texas court could entertain the pursuers' claim for remuneration. The Scottish court is therefore the appropriate forum. On relevancy, the pursuers' pleadings did not disclose a relevant case of actual or ostensible authority for the solicitors to bind their clients, but the averments regarding implied authority based on practice and acquiescence were sufficient to proceed to proof.

Citation
[1999] ScotCS 210
Parties
Pursuers: Burnside Kemp Fraser and Others; First Defender: Mrs Dawn Elizabeth Moar or Robb; Second Defender: Another (Second Defender)
Jurisdiction
Scotland
Judgment Date
31 August 1999
Procedural Posture
Commercial Action (outer House, Court of Session, Scotland) / Interlocutory Judgment on Forum Non Conveniens and Relevancy of Pleadings
Outcome
Defenders' pleas of forum non conveniens repelled; case to proceed to proof on remaining issues.
Legal Topics
Forum Non Conveniens, Authority of Solicitors, Implied Contract, Acquiescence, Remuneration for Group Litigation Coordination, Jurisdictional Competence
Private International Law Contract Law Legal Profession Forum Non Conveniens Authority of Solicitors Implied Contract Acquiescence Remuneration for Group Litigation Coordination +1 more

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Parties

Burnside Kemp Fraser and Others

Pursuers

Mrs Dawn Elizabeth Moar or Robb

First Defender

Another (Second Defender)

Second Defender

Procedural Posture

Commercial Action (outer House, Court of Session, Scotland) / Interlocutory Judgment on Forum Non Conveniens and Relevancy of Pleadings

Legal Issues

  1. 1 Whether the Scottish court should decline jurisdiction on the ground of forum non conveniens in favour of Texas
  2. 2 Whether the pursuers' pleadings disclose a relevant case of authority or acquiescence for payment of fees to Mr Kemp

Ratio Decidendi

The defenders failed to demonstrate that the Texas court was an available or competent forum for the present claims, as there were no pending proceedings there and no evidence that the Texas court could entertain the pursuers' claim for remuneration. The Scottish court is therefore the appropriate forum. On relevancy, the pursuers' pleadings did not disclose a relevant case of actual or ostensible authority for the solicitors to bind their clients, but the averments regarding implied authority based on practice and acquiescence were sufficient to proceed to proof.

Court Disposition

Defenders' pleas of forum non conveniens repelled; case to proceed to proof on remaining issues.

Orders

  • Repel plea of forum non conveniens in all actions.
  • Allow proof before answer on the remaining issues of authority and acquiescence.