A recent Court of Session judgment, in the case of Karen Lamb against Campbell Boath Solicitors and the partners of the firm, provides a useful reminder of what must be established for a professional negligence claim to succeed. The case highlights the importance of clear evidence, realistic loss analysis and a direct link between the alleged failing and the losses claimed.
In this article, we look at what the court decided and what the judgment means in practice for anyone considering a professional negligence claim.
The court action
Background to the claim
Ms Lamb claimed that her solicitors had failed to carry out conveyancing services (in relation to the purchase of a property in Dundee by Ms Lamb in 2012) to the standard of a reasonably competent solicitor exercising ordinary care. The court action sought payment from her former solicitors of just over £1.6 million in damages for both loss of profits and inconvenience.
At the heart of the dispute was whether Ms Lamb had been properly advised of the risks of proceeding with the purchase without a completion certificate, and whether any failure in that advice caused the losses claimed.
The property formed the ground floor of a development and there was extensive building work being carried out to residential flats on the upper floors of the development. It was known that a completion certificate would not be issued for the ground floor that Ms Lamb was purchasing, that a completion certificate for the work to the building wouldn't be available until further work to the upper floors was completed (which would be after the date Ms Lamb was to purchase the property), and the ground floor property couldn't be occupied until the work was completed.
Following Ms Lamb's purchase of the property, it came to light that there were structural issues in the building that required significant remedial work. Ultimately, Ms Lamb was unable to use the property as intended and raised an action against the solicitor, alleging that the solicitor had not properly advised her of the risks of purchasing the property without the completion certificate.
Witness evidence
Both Ms Lamb and the solicitor gave evidence to the court. The solicitor maintained that they met with Ms Lamb to advise on the risks of purchasing without the completion certificate, but Ms Lamb was eager to conclude the sale and instructed the solicitor to proceed without taking any steps to protect Ms Lamb's position. The solicitor did not have a written record of this meeting in their file, but had marked up comments on a document which they recalled were the notes they had made at the meeting. Ms Lamb did not recall the meeting.
Ms Lamb also instructed another solicitor as an expert witness to provide evidence on the issues relevant to the legal test for professional negligence (discussed below).
Each party also instructed chartered accountants as expert witnesses to give evidence on Ms Lamb's projected business plan for the property, which formed the basis of her claim for damages for loss of profits.
Decision of the court
The court dismissed Ms Lamb's claim, finding that the solicitor had not breached their duty of care and that any losses suffered were not caused by the advice given.
Having considered all of the evidence, the judge was satisfied that the solicitor had properly advised Ms Lamb of the risks and that she had provided clear and informed instructions to the solicitor to proceed with the purchase of the property without taking any steps to mitigate the risks or protect her position in relation to the completion certificate. As such, the solicitor was held not to have breached the duty of care owed and no payment was due to be made to Ms Lamb.
The judge noted that any loss suffered by Ms Lamb did not arise from the absence of the completion certificate, but from defective building work within the development such that any losses suffered by Ms Lamb were not caused as a result of anything within the scope of the duty owed by the solicitor.
The judge also considered whether Ms Lamb had sufficiently evidenced her claimed losses of over £1.5 million for alleged loss of profits and £60,000 for inconvenience. Despite expert accounting evidence, the judge found that Ms Lamb's income projections for the business were unreliable and that she had not demonstrated that she would have achieved profits at the level claimed.
On the sum claimed for inconvenience, the judge considered the evidence to be vague and lacking detail as to tasks undertaken and time spent. Any award would, in the judge's view, be limited to £5,000 (although, ultimately, no payment was made).
When is a professional held to be negligent?
In reaching their decision, the judge considered the long-established legal test for professional negligence in Scotland.
For a professional negligence claim to succeed, a party will need to satisfy the court that:
- there is a usual and normal practice;
- the professional failed to follow that practice; and
- no professional person of ordinary skill would have followed the same course of action as the professional in question, if acting with ordinary care.
Expert evidence is essential in professional negligence claims, and a report must be obtained from an expert in the relevant field of the professional whose conduct is being questioned, addressing the three points outlined above.
In many cases, further expert evidence is also required to substantiate claimed losses. The costs involved in pursuing professional negligence cases can therefore be fairly significant, making early advice on prospects and evidence particularly important.
How can MFMac help?
This decision is an important reminder that a professional negligence claim must be supported by clear evidence satisfying the test outlined above, and that any losses claimed must be shown to result from the alleged breach of duty.
At MFMac, our professional negligence team provides clear, commercial advice at an early stage, helping clients assess the merits and risks of potential claims before significant costs are incurred. We focus on evidence-led analysis, realistic assessment of loss and practical resolution.
If you have instructed a professional and don't think that they've carried out their work with a suitable level of skill and care and would like advice in relation to your position, please don't hesitate to get in touch with our team.
