Bonnor v Balfour Kilpatrick [1974] ScotCS CSIH_1 (09 June 1974)

Bonnor v Balfour Kilpatrick [1974] ScotCS CSIH_1 (09 June 1974)

Where neither party makes averments as to foreign law, the presumption that foreign law is the same as Scots law prevails, and the pursuer is not required to aver that the lex loci delicti allows his claim unless the defender makes relevant averments to the contrary. A mere call for averment is insufficient to put foreign law in issue. Leave to amend pleadings to introduce averments of foreign law after expiry of the prescriptive period may be refused if it would prejudice the pursuer.

Citation
[1974] ScotCS CSIH_1
Parties
Pursuer: Bonnor; Defender: Balfour Kilpatrick Ltd
Jurisdiction
Scotland
Judgment Date
09 June 1974
Procedural Posture
Action of Reparation / Reclaiming Motion and Motion to Amend Pleadings
Outcome
reclaiming motion refused; motion to amend pleadings refused
Legal Topics
Presumption of Foreign Law, Lex Loci Delicti, Relevancy of Pleadings, Amendment of Pleadings, Vicarious Liability
Conflict of Laws Private International Law Tort Presumption of Foreign Law Lex Loci Delicti Relevancy of Pleadings Amendment of Pleadings Vicarious Liability

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Parties

Bonnor

Pursuer

Balfour Kilpatrick Ltd

Defender

Procedural Posture

Action of Reparation / Reclaiming Motion and Motion to Amend Pleadings

Legal Issues

  1. 1 Is a pursuer required to aver that the lex loci delicti allows a claim for damages when neither party makes averments as to foreign law?
  2. 2 Does a call by the defender for the pursuer to aver foreign law suffice to put the lex loci delicti in issue?
  3. 3 Should leave to amend pleadings to introduce averments of foreign law be granted after expiry of the prescriptive period?

Ratio Decidendi

Where neither party makes averments as to foreign law, the presumption that foreign law is the same as Scots law prevails, and the pursuer is not required to aver that the lex loci delicti allows his claim unless the defender makes relevant averments to the contrary. A mere call for averment is insufficient to put foreign law in issue. Leave to amend pleadings to introduce averments of foreign law after expiry of the prescriptive period may be refused if it would prejudice the pursuer.

Court Disposition

reclaiming motion refused; motion to amend pleadings refused

Orders

  • defenders' preliminary plea repelled
  • issues approved