Competency of Joint Conclusions for Indivisible Loss: Joint and Several Expenses as Recoverable Group Damages

1) Introduction

In Fiona Drouet and others against BTO Solicitors LLP [2026] CSOH 66, the Outer House (Lord Cubie) considered a procedural question arising out of admitted professional negligence by the defender solicitors: they failed to lodge a summons for calling, with the result that an earlier action became time-barred against the original defender (an individual referred to in the judgment text as Angus Milligan).

Following the unsuccessful attempt to persuade the court to allow the time-barred action to proceed (Drouet v Milligan [2024] CSOH 32), the pursuers were found jointly and severally liable in expenses to the original defender, and they also incurred their own legal costs in the abortive and time-bar litigation. They then sued their former solicitors for damages (liability admitted; loss disputed).

The immediate issue in [2026] CSOH 66 was whether the pursuers could amend their pleadings to add two joint conclusions seeking payment of (i) the taxed expenses for which they were jointly and severally liable and (ii) their own legal expenses incurred in the earlier proceedings—rather than specifying a pro-rata share per pursuer. The defenders opposed amendment as (a) incompetent and/or (b) time-barred by prescription.

2) Summary of the Judgment

  • Amendment allowed: Lord Cubie held it was competent and relevant for multiple pursuers to advance a single joint conclusion for a head of loss that is indivisible and inseparable, including liability for expenses imposed on them jointly and severally in prior litigation.
  • No statutory “joint entity” required: The court rejected the view that a statutory foundation (as in Tayside Contracts) is a necessary precondition for a joint conclusion.
  • Prescription argument rejected: The amendment did not introduce a new obligation; it reformulated the vehicle of recovery for part of the same reparation obligation already pursued. The original action constituted a relevant claim interrupting prescription.
  • Expenses reserved in part: The pursuers conceded expenses of the amendment procedure (but not competency argument expenses), which were reserved.

3) Analysis

A. The Precedents Cited (and What the Court Took from Them)

(i) Accumulation of pursuers’ claims: when separate conclusions are required

The defenders relied on textbook statements (including MacPhail's: Sheriff Court Practice) and authorities often cited for the proposition that, even where multiple pursuers may sue together, each must crave damages in a separate conclusion. Lord Cubie treated the classic authorities as primarily addressing cases where each pursuer’s loss is inherently separate (typical personal injury/relatives’ claims), rather than the distinct scenario in which a single indivisible loss is said to be sustained by the pursuers as a group.

  • Boulting v Elias 1990 SC 135: treated as an authority about the incompetency of conjoining independent causes (there, discrete employment contracts and discrete losses), not as a rule precluding a joint conclusion where the loss is indivisible.
  • Armstrong v Paterson Bros 1935 SC 464: recognised as establishing the familiar (and uncontroversial) rule that multiple pursuers may join in one action where they found on the same facts, with separate conclusions for separate losses.
  • Buchan v Thomson 1976 SLT 42: Lord Cubie read Lord Fraser’s statement (“each pursuer has a separate conclusion, as he is bound to do”) in its context—highlighting the practical separability of typical multiple-pursuer damages claims (distinct defences, distinct adjudications), rather than erecting an absolute bar against a single conclusion in all circumstances.
  • Harkes v Mowat (1862) 24 D 701: used by Lord Cubie to emphasise the underlying rationale: where “the injury of each pursuer is separate”, conclusions must apply separately. That rationale, in the court’s view, did not answer what should happen where the loss is not separate.

(ii) “Justice and common sense” in procedural form: part-ownership and exceptions to rigid rules

Lord Cubie placed notable weight on older authority demonstrating that procedural requirements should not produce unjust outcomes where the underlying right would otherwise be defeated.

  • Lawson v Leith and Newcastle Steam Packet Company (1850) 13 D 175: cited for its emphasis (by Lord Justice Clerk Hope and Lord Cockburn) that an asserted procedural “rule” cannot be applied peremptorily where it would work injustice, and that procedural form should follow practical reality after a loss has crystallised (there, destruction of jointly owned property).

(iii) Tenders and “lump sum” logic: not decisive against joint conclusions

The defenders invoked tender cases to argue that Scottish procedure assumes separate conclusions and therefore precludes joint conclusions. Lord Cubie treated these cases as rules about matching the tender to the conclusions pled, not as prohibitions on joint conclusions per se.

  • Flanagan v Dempster Moore & Co 1928 SC 308 and McNeil v NCB 1966 SC 72: understood as holding that where pursuers claim separate sums, a tender must address those separate claims. Lord Cubie observed that the reasoning implicitly contemplates a different case—where pursuers might competently conclude for a lump sum that they could allocate (or treat as a single group loss).
  • Ferguson v McLennan Salmon Co Limited 1990 SC 45: relied upon for a modern, pragmatic approach to tendering—moving away from overly formalistic requirements, and supporting the broader theme that procedure should not defeat substantive justice where clarity and fairness can be maintained.

(iv) The “single entity” point and Tayside Contracts

The pursuers relied on Tayside Contracts v Geddes 2014 SLT 764 as demonstrating that a single conclusion for multiple pursuers can be competent where the loss is properly treated as a single sum. The defenders sought to confine Tayside Contracts to its statutory setting (Local Government (Scotland) Act 1973, ss 56–57), arguing that only legislation permitted the councils to sue effectively as a single body.

Lord Cubie accepted that Tayside Contracts was facilitated by its statutory context, but drew a wider point from it: Scottish procedure can accommodate a joint conclusion where there is “unity” in the remedy sought. He expressly rejected the idea that a statutory basis is a sine qua non for joint conclusions.

The court also noted the analogy in Tayside Contracts to quasi-corporate litigants, including reference to Bonsor v Musicians Union ([1956] A.C., pp.150ff), but treated the present case as capable of fitting within competency principles even without that structural feature.

(v) Prescription authorities: capacity vs “relevant claim”

The defenders argued that suing “as a group” introduced a different obligation which had prescribed, citing (as referenced in submissions) Tecjet Limited v Keir Construction Limited [2024], SLT 1 168 and Dunlop v McGowans 1980 SC (HL) 73, and relying on commentary (David Johnston, Prescription and limitation of Actions).

Lord Cubie rejected the premise. The court treated the amendment as changing the form of recovery for part of the claimed loss, not the underlying obligation to make reparation arising from the same admitted negligence/breach. The judgment endorsed the approach (quoted from MacPhail) that after the prescriptive period has expired, amendment remains possible so long as “the obligation remains the same” even if its expression or grounds are altered, and that time-bar objections are addressed through the court’s discretion when considering amendment. The judgment refers to Greenhorn v J. Smart (Contractors) Ltd in that context.

B. Legal Reasoning

(i) The key doctrinal move: “indivisible and inseparable” group loss

Lord Cubie’s central finding was that the contested heads of loss were not merely similar individual losses. They were (on the pursuers’ averments) losses for which the pursuers were jointly and severally liable—and where no payment had yet been made such that any meaningful internal apportionment could be pled. In those circumstances:

  • the pursuers had a “sufficient nexus” to sue jointly;
  • the loss was “indivisible and inseparable”;
  • requiring a pro-rata allocation would be artificial and potentially impossible before payment;
  • procedural rules should not operate so as to make recovery practically unattainable.

A notable aspect of the reasoning is its insistence that procedure is “the servant not the master” (drawing support from the older authorities’ emphasis on justice and common sense). The earlier court had itself treated the pursuers as a group for expenses; Lord Cubie regarded it as coherent—and practically necessary—that the group be allowed to claim that same sum as a group when seeking reparation from the negligent solicitors.

(ii) Competency vs relevancy

The defenders framed the objection as incompetency (a bar to the form of the process), relying on the alleged absence of authority for joint damages craves among natural-person pursuers. Lord Cubie treated the absence of direct authority as unsurprising given the rarity of the situation, and not determinative. The court’s approach effectively distinguishes:

  • separate losses (where separate conclusions are ordinarily necessary), from
  • single group losses (where a joint conclusion may be competent if the remedy is unified/indivisible).

(iii) Tender practice not a veto on pleading structure

The court declined to let tender mechanics dictate pleading competency. The tender cases were read as instructing that tenders must map onto the conclusions in the action, not that the law forbids joint conclusions. Lord Cubie also endorsed a more flexible modern tender approach by reference to Ferguson v McLennan Salmon Co Limited 1990 SC 45.

(iv) Prescription: the “same obligation” test

On prescription, the judgment’s decisive move is to relocate the inquiry away from the defenders’ “different capacity/different obligation” characterisation and back to the orthodox focus: whether there has been a relevant claim to interrupt prescription in respect of the obligation sued upon. Because the admitted wrong and reparation obligation were already in issue in the existing action, the amendment did not introduce a new, distinct obligation; it re-expressed how part of the loss was to be recovered.

C. Impact

  • Procedural clarification in multi-pursuer claims: The decision provides clear Outer House support for the proposition that Scottish pleadings can, in rare cases, include joint conclusions for damages where the head of loss is truly indivisible among pursuers (especially where liability to a third party is joint and several).
  • Professional negligence litigation: Where a solicitor’s negligence triggers adverse expenses awards against multiple clients, [2026] CSOH 66 supports pleading those expenses as a unified loss without artificial pre-payment apportionment.
  • Limits preserved: The judgment does not dilute the orthodox rule for typical personal injury/relatives’ claims—where each pursuer’s loss remains separate and must ordinarily be concluded for separately. The decision turns on “indivisible and inseparable” loss.
  • Prescription resilience of amendments: The reasoning reinforces a practical approach: amendments altering quantification or structuring of recovery (without changing the underlying obligation) will not readily be defeated by prescription arguments framed around “capacity”.

4) Complex Concepts Simplified

  • Competency: Whether the court process is legally permissible in the form brought (a threshold procedural question). If incompetent, the court cannot entertain it even if the facts might otherwise justify a remedy.
  • Relevancy: Whether the pleadings, if proved, would entitle the pursuer to the legal remedy sought. A competent action can still be dismissed as irrelevant.
  • Joint and several liability: Each liable person can be pursued for the whole debt, leaving apportionment to be resolved between the liable parties. If several pursuers are jointly and severally liable in expenses, any one of them may be made to pay the entire amount.
  • Indivisible loss: A loss that cannot sensibly be broken down into individual “shares” at the pleading stage (for example, a single taxed account of expenses awarded against the pursuers collectively).
  • Prescription / relevant claim: Scottish prescription extinguishes obligations after time unless interrupted. A “relevant claim” (even if later amended) can interrupt prescription so long as it is directed at the same underlying obligation.
  • Tender: A formal offer to settle. The tender cases cited largely concern ensuring the offer corresponds to what is being claimed (e.g., separate claims require appropriately framed offers).

5) Conclusion

[2026] CSOH 66 stands for a practically important procedural proposition: where multiple pursuers share an indivisible head of loss—particularly liability imposed on them jointly and severally in expenses—the Court of Session may treat a single joint conclusion for that loss as competent and relevant. The judgment rejects rigid formalism that would force artificial apportionment and potentially defeat recovery, and it confirms that such an amendment does not introduce a new prescribed obligation where the underlying reparation claim remains the same.