The pursuer, a parcels and freight business, had an agreement with a haulier for 3½ years. In April 2020, the haulier abruptly terminated the agreement and aimed to continue trading with customers introduced by the plaintiff, contacting two major clients. The haulier proceeded to contact two of the pursuer’s largest customers.
The pursuer sought legal advice from MacRoberts, the defender in this action.
In brief, the defender had advised the pursuer that the agreement could be terminated and recommended that the Pursuer seek to negotiate a commercial settlement, rather than embark upon litigation. After months of negotiations and then litigation, the parties reached a settlement agreement.
The pursuer was unhappy with the ultimate outcome and raised an action against the defender. The pursuer offered to prove that the defender had been negligent having failed to advise it:
1. To seek interim remedies from the outset of the dispute; and
2. That the agreement was non-terminable by unilateral notice.
The pursuer maintained that had non-negligent advice been tendered by the defender, it would have secured a better outcome relative to the contractual dispute. The pursuer valued its loss at circa £232,500.
During the proof the pursuer and defender led evidence from expert litigators who held differing views on whether the test for establishing professional negligence, per Lord Clyde in Hunter v Hanley 1955 SC 200 had been met.
Ultimately, Lord Braid was not persuaded that a solicitor, having formed a view on the meaning and effect of a contract had a duty to advise the client about all possible, merely stateable counter- arguments. In this case, the agreement was ambiguous, the defender had formed its own view and provided advice to the pursuer. It was open to the pursuer to seek a second opinion if it was not satisfied with the advice provided.
Lord Braid sustained the defender’s first plea in law and granted decree of absolvitor reserving all questions of expenses.
This article is part of the Winter 2023 edition of our On Point Scottish Professional Indemnity newsletter. Subscribe here for future insurance updates and events.
