Bentley v Harvie [1999] ScotCS 83 (19 March 1999)

Bentley v Harvie [1999] ScotCS 83 (19 March 1999)

The defender failed to discharge the burden of showing that Ontario is a clearly more appropriate forum than Scotland, given his residence and assets in Scotland and the enforceability of a Scottish decree. The arbitration clause was not properly invoked and does not clearly apply to the present dispute. The pursuer's averments are sufficiently relevant and specific to proceed to proof.

Citation
[1999] ScotCS 83
Parties
Pursuer: Helen Stewart Bentley; Defender: John Harvie
Jurisdiction
Scotland
Judgment Date
19 March 1999
Procedural Posture
Civil / Interlocutory (pleas to Relevancy, Forum Non Conveniens, and Arbitration)
Outcome
Defender's pleas-in-law (forum non conveniens and arbitration) repelled; proof before answer allowed.
Legal Topics
Maintenance Payments, Separation Agreement, Forum Non Conveniens, Arbitration Clause, Enforcement of Foreign Law, Child Support Arrears
Family Law Private International Law Contract Law Maintenance Payments Separation Agreement Forum Non Conveniens Arbitration Clause Enforcement of Foreign Law +1 more

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Parties

Helen Stewart Bentley

Pursuer

John Harvie

Defender

Procedural Posture

Civil / Interlocutory (pleas to Relevancy, Forum Non Conveniens, and Arbitration)

Legal Issues

  1. 1 Whether the Scottish court should sist (stay) the action pending arbitration in Ontario under the separation agreement.
  2. 2 Whether the Scottish court should sist the action on the ground of forum non conveniens in favour of Ontario.
  3. 3 Whether the pursuer's averments regarding maintenance arrears and tuition fees are sufficiently relevant and specific to go to proof.

Ratio Decidendi

The defender failed to discharge the burden of showing that Ontario is a clearly more appropriate forum than Scotland, given his residence and assets in Scotland and the enforceability of a Scottish decree. The arbitration clause was not properly invoked and does not clearly apply to the present dispute. The pursuer's averments are sufficiently relevant and specific to proceed to proof.

Court Disposition

Defender's pleas-in-law (forum non conveniens and arbitration) repelled; proof before answer allowed.

Orders

  • Repel defender's first and second pleas-in-law.
  • Allow parties a proof before answer of their averments, except for the deleted sentence at page 9D.