Burnside Kemp Fraser v Stirton & Anor [2000] ScotCS 304 (5 December 2000)

Burnside Kemp Fraser v Stirton & Anor [2000] ScotCS 304 (5 December 2000)

The defenders' averments alleging negligence and lack of advice were insufficiently specified and did not justify a substantive defence; however, the defenders' averment that the pursuers' account had not been taxed was correct and must remain. The action for recovery of fees cannot proceed until the account is taxed.

Citation
[2000] ScotCS 304
Parties
Pursuers: Burnside Kemp Fraser; First Defender: Graeme Stirton; Second Defender: Neil Melvin
Jurisdiction
Scotland
Judgment Date
05 December 2000
Procedural Posture
Civil Action for Recovery of Professional Fees / Interlocutory; Ruling on Specification of Pleadings and Admissibility of Averments
Outcome
Partial deletion of defenders' averments; proof before answer allowed; question of expenses reserved.
Legal Topics
Solicitors' Fees, Implied Contractual Duties, Specification of Pleadings, Taxation of Accounts
Contract Law Professional Negligence Civil Procedure Solicitors' Fees Implied Contractual Duties Specification of Pleadings Taxation of Accounts

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Parties

Burnside Kemp Fraser

Pursuers

Graeme Stirton

First Defender

Neil Melvin

Second Defender

Procedural Posture

Civil Action for Recovery of Professional Fees / Interlocutory; Ruling on Specification of Pleadings and Admissibility of Averments

Legal Issues

  1. 1 Whether the defenders' averments alleging negligence and lack of advice by the pursuers are sufficiently specified to be admitted to proof
  2. 2 Whether the pursuers are entitled to recover professional fees prior to taxation of their account by the Auditor of Court

Ratio Decidendi

The defenders' averments alleging negligence and lack of advice were insufficiently specified and did not justify a substantive defence; however, the defenders' averment that the pursuers' account had not been taxed was correct and must remain. The action for recovery of fees cannot proceed until the account is taxed.

Court Disposition

Partial deletion of defenders' averments; proof before answer allowed; question of expenses reserved.

Orders

  • Delete the sixth, seventh, eighth, ninth, tenth and penultimate sentence in Answer 2; delete the third sentence in Answer 3; delete the defenders' first plea-in-law; allow parties a proof before answer of their averments; reserve the question of expenses.