Introduction

The case of Amie McCann against Harper Macleod, adjudicated by the Court of Session (Outer House) on 11 March 2025, represents a significant development in claims arising from professional negligence in legal services. The central factual background involves a road traffic accident whereby Amie McCann sustained serious injuries. She had engaged Harper Macleod, a firm of solicitors, to pursue her claim against the driver responsible. However, it is contended that the legal advisers failed to properly investigate her claim, ultimately advising her to accept a compromise settlement that undervalued her true claim.

The case raises intricate issues concerning causation in negligence, particularly those involving “loss of a chance” where the negligent advice impacted not only the opportunity to litigate fully but also the potential value in settlement negotiations. The primary dispute centers on whether the pursuer sufficiently pleaded that the advised course of settlement resulted in the loss of a tangible, better financial outcome.

Summary of the Judgment

In her opinion, Lady Haldane of the Outer House held that the pleadings advanced by the pursuer were adequate in establishing her claim on the basis of a lost chance to secure a better result following negligent advice. While acknowledging the defenders’ criticism regarding the lack of explicit counterfactual averments detailing the advice that should have been given, the judgment emphasized that, for loss of a chance claims, a full set of “if then” averments is not necessarily required.

The court distinguished the present case from those scenarios where a litigant loses the right to pursue a claim entirely. Instead, it was held that where the loss hinges on what a third party (such as an insurer or the court) would have done—rather than what the client personally would have undertaken—the lost opportunity analysis need not be predicated solely on the balance of probabilities test. In the final analysis, Lady Haldane repelled the second plea-in-law raised by the defendant and granted a Proof before Answer, reserving all issues regarding costs.

Analysis

Precedents Cited

A number of seminal cases were cited in the Judgment, shaping the legal approach to “loss of a chance” in the context of professional negligence:

• Perry v Raleys Solicitors [2020] AC 352: Central to the argument was the Supreme Court’s articulation that where negligence results in the loss of a chance, the claimant must prove on the balance of probabilities what action they would have taken on receipt of competent advice. The case laid out a two-limbed approach—one concerning personal action and the other dealing with third-party response (insurer or court decision).
• Allied Maples Group Ltd v Simmons & Simmons [1995] 1 WLR 1602: This decision provided the conceptual basis for evaluating a lost opportunity in a negotiated settlement, rather than in instituting litigation. It clarified that where a client’s loss depends partly on the actions of another party, one component should be decided on a loss of a chance basis.
• Yeoman v Ferries (as expounded by Lord Avonside): Referenced in older Scottish authority, this case explained that the loss suffered was that of the right to press an action rather than the loss of the underlying claim itself, thereby informing the methodology for quantifying loss in such cases.
• Darknell-King v Slater and Gordon [2024] CSOH 100: Offering a parallel factual scenario where negligent advice led to a lost chance to pursue a claim, it reinforced that the necessary specification in pleadings may be relaxed when the loss is inherently linked to the outcome determined by a third party.

Legal Reasoning

The court’s reasoning unfolded primarily on reconciling the traditional requirements of causation with the practical realities of legal advice in settlement negotiations. Lady Haldane observed:

• The requisite for the pursuer to prove causality in negligence remains intact; however, in "loss of a chance" claims, the focus shifts from proving what the client would have done (the first limb) to assessing the scenario that would have been realized had proper advice been given (the second limb).
• The court emphasized that in evaluating damage linked to lost opportunities, it is acceptable for the evaluator (the court) to draw on probabilistic judgments informed by their experience and the evidence provided, rather than demanding a rigid counterfactual narrative from the claimant.
• Moreover, the judgment highlighted that while linguistic imprecisions—such as the repeated use of "it is likely"—could suggest adherence to a strict balance of probabilities framework, they were not sufficient to undermine the overall integrity of the pleadings.

The reasoning turned on grounded principles laid out in Perry and Allied Maples, underscoring that it is unnecessary in every loss of a chance case to articulate a fully detailed counterfactual scenario. Instead, it is accepted that the pursuer’s averments, which focus on the tangible loss arising from a negotiation that fell below the true value of the claim, satisfy the requirements of the pleading.

Impact

The decision in Amie McCann v Harper Macleod is significant for several reasons:

• It firmly establishes that in cases of professional negligence concerning legal advice on settlement valuations, the court may rely on a “loss of a chance” framework even if the counterfactual scenario is not spelled out in minute detail.
• Future litigants seeking to claim damages for lost opportunities as a consequence of negligent advice can rely on this decision to argue that the burden does not require an all-encompassing “if then” narrative but rather sufficient detail linking the negligent advice to a demonstrably undervalued settlement.
• The judgment reinforces the need for legal professionals to provide comprehensive and accurate advice especially where settlement figures are determined by third-party or judicial discretion.

Complex Concepts Simplified

Several complex legal terminologies are clarified within the Judgment:

• "Loss of a Chance": This term refers to the loss incurred by a client when negligent advice prevents them from pursuing a course of action that could have led to a better settlement or litigation outcome. The court assesses this loss by considering the probable outcomes of a properly negotiated claim.
• Counterfactual Scenario: In typical negligence claims, the claimant must show what would have happened absent the negligence. In “loss of a chance” cases, however, the court accepts that it might not be necessary to fully recreate the hypothetical scenario as long as there is sufficient evidence to demonstrate a tangible loss.
• Balance of Probabilities vs. Loss of Chance Evaluation: Whereas the balance of probabilities test requires a claimant to prove that it is more likely than not that a certain event would have occurred had proper advice been given, a loss of chance evaluation acknowledges that even if a client had less than a majority chance of achieving a better outcome, the failure to act can still result in a compensable loss.

Conclusion

The judgment in Amie McCann against Harper Macleod reinforces a pragmatic approach to claims for professional negligence where legal advice leads to a lost opportunity. By integrating the principles set out in Perry, Allied Maples, and Yeoman, the Court of Session has clarified that the requirement to provide a detailed counterfactual is not absolute when the loss arises from a failure by third parties—be it an insurer or the court—to act in a manner that would have yielded a better settlement.

In summary, the case underlines:

• The adequacy of less detailed pleadings when linked to a lost chance scenario,
• The importance of linking breach of duty with a tangible loss value, and
• The shift in focus from a strictly individual balance-of-probabilities test to a dual framework which recognizes the role of external decision-making.

Legal practitioners and future litigants should take note of this decision as it clarifies the evidentiary standards required in loss of chance claims, thereby shaping both the drafting of pleadings and the strategy in claims arising from negligent professional advice.