Background
The Pursuer seeks damages from the Defender, in respect of alleged breaches of duty in the course of her activities as judicial factor on the estate of the Pursuer's father. The Pursuer claims that the Defender failed in various regards in her administration of the estate, causing loss to it.
Debate
Lord Sandison heard a debate on the Defender's preliminary pleas.
Counsel for the Defender submitted that the Pursuer's claim was based on allegations of professional negligence and that it was not permissible (as amounting to an abuse of process) to maintain allegations of professional negligence without a supportive expert report. The Defender argued that the Pursuer's claim should be dismissed, relying on the cases of Tods Murray W.S. v Arakin Limited [2010] CSOH 90, 2011 S.C.L.R. 37 and JD v Lothian Health Board [2017] CSIH 27, 2018 S.C.L.R. 1.
The Pursuer's response was that the behaviour of the Defender as judicial factor rendered any expert opinion unnecessary.
Lord Sandison was not convinced that the Scottish authorities referred to by the Defender supported the proposition that an allegation of professional negligence must in every case be supported by a suitable expert report. He considered that a distinction should be drawn between: -
- a profession which is concerned with specialist scientific or technical discipline outwith the knowledge and understanding to be expected of the court; and
- questions of decision-making in more mundane settings where the court can be expected to understand the relevant background and not require further assistance in order to determine the issue.
Lord Sandison considered that there are circumstances in which the court is able to determine a question of professional negligence without an expert report, namely those referenced in (ii). Whatever the position may be in other kinds of case, it was unnecessary for criticisms of the performance of a judicial factor to involve allegations of professional negligence by the standards of the factor’s own profession, and an expert report supporting such allegations is not a pre-requisite for a claim based on alleged breach of duty by a judicial factor.
Comment
In the context of solicitor negligence cases, the English courts have long questioned the value and admissibility of calling solicitors to give evidence as to what they would have done in a particular situation. In the case of Midlank Bank Trust Co. Ltd and Another v Hett, Stubbs & Kemp (A Firm) [1979] Ch. 384, Justice Oliver considered that an expert's opinion of what he would have done in the circumstances did not assist the court, and was therefore inadmissible. It remains to be seen what impact this decision will have on Defenders facing professional negligence claims in Scotland. Lord Sandison's comments indicate that there is, at least, a possible alternative to what formerly seemed a straightforward question.
