Burnside Kemp Fraser & Ors v Scrimgeour Or Roe & Anor [1999] ScotCS 212 (31 August 1999)

Burnside Kemp Fraser & Ors v Scrimgeour Or Roe & Anor [1999] ScotCS 212 (31 August 1999)

The defenders' second plea-in-law (forum non conveniens) is repelled and, by consent, their first plea-in-law (lis alibi pendens) is repelled. The defenders' third plea-in-law is sustained 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 remaining averments are remitted to inquiry.

Citation
[1999] ScotCS 212
Parties
Pursuers: Burnside Kemp Fraser and Others; First Defender: Mrs Shona Anne Scrimgeour or Roe; Second Defender: Another adult relative of the deceased
Jurisdiction
Scotland
Judgment Date
31 August 1999
Procedural Posture
Civil / Interlocutory (plea in Law Rulings)
Outcome
Defenders' second plea-in-law repelled; first plea-in-law repelled by consent; third plea-in-law sustained in part; case put out By Order for further discussion.
Legal Topics
Forum Non Conveniens, Lis Alibi Pendens, Probation of Averments, Group Litigation
Civil Procedure Forum Non Conveniens Lis Alibi Pendens Probation of Averments Group Litigation

Case Brief

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Parties

Burnside Kemp Fraser and Others

Pursuers

Mrs Shona Anne Scrimgeour or Roe

First Defender

Another adult relative of the deceased

Second Defender

Procedural Posture

Civil / Interlocutory (plea in Law Rulings)

Legal Issues

  1. 1 Whether the defenders' pleas of forum non conveniens and lis alibi pendens should be upheld
  2. 2 Whether certain averments by the pursuers should be excluded from probation

Ratio Decidendi

The defenders' second plea-in-law (forum non conveniens) is repelled and, by consent, their first plea-in-law (lis alibi pendens) is repelled. The defenders' third plea-in-law is sustained 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 remaining averments are remitted to inquiry.

Court Disposition

Defenders' second plea-in-law repelled; first plea-in-law repelled by consent; third plea-in-law sustained in part; case put out By Order for further discussion.

Orders

  • Repel defenders' second plea-in-law (forum non conveniens)
  • Repel defenders' first plea-in-law (lis alibi pendens) by consent