![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |
Scottish Court of Session Decisions |
||
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> GRAEME M FRASER & CO & Ors v. THE ROYAL BANK OF SCOTLAND PLC [2013] ScotCS CSIH_56 (20 June 2013) URL: https://www.bailii.org/scot/cases/ScotCS/2013/2013CSIH56.html Cite as: [2013] ScotCS CSIH_56 |
[New search] [Help]
SECOND DIVISION, INNER HOUSE, COURT OF SESSION
|
|
Lord Justice ClerkLady DorrianLord Drummond Young
|
[2013] CSIH 56A50/11
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD JUSTICE CLERK
in the reclaiming motion
in causa
GRAEME M FRASER & CO AND OTHERS Pursuers and Reclaimers;
against
THE ROYAL BANK OF SCOTLAND PLC Defenders and Respondents:
_______________
|
Alt: Delibegović-Broome; Dundas & Wilson CS LLP
30 May 2013
[2] The second
pursuer, who is one of the partners in the firm and who alone is pursuing the
action, maintains in the fourth article of condescendence that the 2005 loan
agreement is not signed by the two partners of the firm as it purports to
show. It is averred that this document (presumably meaning the signatures) is
a forgery. In the seventh article of condescendence it is averred that the
1998 loan agreement is also not signed by the second pursuer as it purports to
be. It too is therefore a forgery. The defenders, on the other hand,
maintain that the loan agreements were properly executed and that each was sent
to the pursuers for such execution and duly returned by them.
[3] According
to the written pleadings then, that is what this case is about; a factual
dispute as to whether the loan agreements are forgeries or not. There are many
averments about the background to the agreements and concerning the subsequent history
of the loans, but these do not appear to have a direct bearing on this central
issue. The case appears to revolve solely around the formal validity of the
agreements.
[4] On 8
August 2012, the defenders moved the court to appoint a preliminary proof, as
the next stage in the procedure, confined to the issue of whether the loan
agreements are indeed forgeries. The Lord Ordinary records that she had
difficulty in following what alternative the second pursuer desired, but noted
that at certain points he seemed to accept that one or other of the deeds may
not be a forgery. Rather he was maintaining that he had been deceived into
signing one or more of the documents. However, there is no case seeking
reduction of the loan agreements on that basis in the written pleadings. Given
the content of the pleadings, the Lord Ordinary allowed a preliminary proof on
what appears to be the main, if not the only, issue focussed on record. It is
against that interlocutor, which allows the second pursuer to prove his central
case on record, that he reclaims.
[5] In his
grounds of appeal, the second pursuer sets out a variety of complaints in
relation to what the Lord Ordinary may or may not have failed to record about
his submissions to her. This has no bearing on the essential question of what
procedure should now be followed. He maintains that what he wants is a
"trial" at which parties could put forward whatever evidence they wanted. It
became clear in the course of the submissions, as it is perhaps also in the
grounds of appeal, that the second pursuer wishes to raise a variety of matters
concerning deception, failures on the part of lawyers and courts and errors of
one sort or another by a variety of individuals. Most of these matters, it
has to be stressed, are not contained in the averments of fact with which the
case is formally concerned. Where they are averred, their connection to the
remedies sought is currently obscure.
[6] This court
determines the appropriate procedure to be followed in any action on the basis
of the issues which are identified in the written pleadings. It does not
order enquiry on the content of oral submission or of documents which are not
themselves part of the pleadings. The court will not allow a general enquiry
into events not the subject of averment. The only issue of relevance in this
action appears to be whether the loan agreements are forged or not. That is
the matter of fact for proof. That is what the Lord Ordinary has allowed.
[7] For all
these reasons, the court will refuse the reclaiming motion and adhere to the
interlocutor of the Lord Ordinary dated 8 August 2012.