Page:Margaret Hamilton of Rockhall v Lord Lyon King of Arms.pdf/56

 relevant averments to establish title and interest to enforce paragraph 4 of the Agreement (even if I had found that it created an obligation enforceable by her).

[99] Finally, in relation to jurisdiction, the pursuer's averments seeking to establish that she is within the privative jurisdiction of this court fall into two categories. The first is the averment of the diminution in value of her own barony title. There is no relevancy challenge to this averment. However, the loss said to flow from that is below the privative jurisdiction. It is for that reason that there are averments (in articles 1 and 9) which also invoke her diminished earnings qua partner in the firm. However, in my view, the defender's submission that there are no relevant averments about the pursuer having any interest qua partner at the time of the pursuer's judicial review or at the time of the Agreement are well founded. Averments of losses said to flow from her diminished drawings qua partner of the firm are accordingly irrelevant. There is also some force in the defender's observation that no accounts of the firm were lodged to vouch the asserted quantum of loss relied on to establish jurisdiction, and note of which might have been permissible in the more flexible practice available to the commercial judge. More fundamentally, given that the firm was not a party to the Agreement, no legal duty or relevant legal nexus was plead as having been owed by the defender to the firm and there is no legal basis averred for a claim by the pursuer on behalf of the firm. Accordingly, the pursuer's averments (in articles 1 and 9) based on her diminution in the value of her drawings from, or interest in, the firm are irrelevant. Absent these averments, which I find to be irrelevant, the value of her claim is prima facie below the privative jurisdiction. This is not a matter I would have reserved for proof, had the pursuer otherwise established the merits of her case.