Hayley Darknell-King against Slater and Gordon UK LTD and Others (Court of Session)

Factual and Procedural Background

The Plaintiff, a former police constable, claims to have suffered serious personal injuries during diving courses arranged by her employer, South Wales Police, in 2013 and 2014. She retired from police service in 2017 as a result of these injuries. The Plaintiff contends that her employer negligently arranged diving training with Professional Diving Academy Limited ("PDAL") without proper vetting. Following referral by the Police Federation of England and Wales, the Plaintiff engaged legal services through a letter of engagement dated 2 July 2015, which included terms of business referencing both a solicitor and a limited liability partnership ("LLP"). The Plaintiff initiated a personal injury claim against PDAL in 2016, which was settled in 2018 for £50,000 after PDAL's insurer declined indemnity and PDAL was effectively insolvent. The Plaintiff asserts she also had a viable claim against South Wales Police which was not pursued due to alleged negligent advice from her solicitors and counsel.

The Plaintiff's action for professional negligence is brought against several defendants: multiple solicitor entities and individuals involved in her legal representation, including the solicitor who acted for her and the LLP referenced in the engagement documents. The first solicitor defendant was previously removed from the case. The remaining solicitor defendants seek dismissal of the action against them on grounds of relevancy and specification. The second defender (counsel) did not participate in the preliminary plea discussion.

Legal Issues Presented

1. Whether the Plaintiff's claim against the third solicitor defendant (the LLP) is relevant and properly specified, considering the construction of the contractual relationship.
2. Whether the Plaintiff's claim against the fourth solicitor defendant is relevant, given its late incorporation and alleged assumption of liabilities.
3. Whether the Plaintiff's expert evidence sufficiently supports the claim of professional negligence against the solicitor defendants.
4. Whether the Plaintiff has adequately pleaded causation, specifically loss of a chance to negotiate a settlement with South Wales Police.

Arguments of the Parties

Defenders' Arguments

• The claim against the third and fourth defenders should be dismissed for irrelevancy or lack of essential specification.
• The contractual relationship was solely between the Plaintiff and the fifth defender (the individual solicitor), not including the third defender (the LLP), based on a proper construction of the engagement documents.
• The phrase "in association with" in the terms of business does not create a tripartite contract including the LLP.
• The third defender was not authorized to provide legal services in Scotland and had no contractual or financial involvement in the Plaintiff’s case.
• The fourth defender, incorporated in 2017, could not have assumed liability for actions predating its incorporation; its payment of a bill was administrative and did not imply assumption of responsibility.
• The Plaintiff’s expert evidence was inadequate in establishing the standard of care breached, particularly lacking factual averments supporting the expert’s opinions.
• The Plaintiff failed to plead the counterfactual scenario necessary to prove causation for loss of chance regarding settlement negotiations.

Plaintiff's Arguments

• The contractual terms should be construed as creating a contractual nexus among the Plaintiff, the third defender (LLP), and the fifth defender (solicitor), giving meaning to the phrase "in association with".
• The fourth defender’s payment of the bill should be inferred as an assumption of responsibility for liabilities of the fifth defender, given its acquisition of the fifth defender’s business.
• The expert reports by the Plaintiff’s solicitor expert meet the legal standard for professional negligence and adequately support the claim.
• The pleadings sufficiently allege loss of chance that South Wales Police would have admitted liability or entered into settlement negotiations, justifying proof on causation.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Network Rail Infrastructure Limited v Fern Trustee 1 Limited [2022] CSIH 32, 2022 SLT 997	Principles of contractual construction	Applied to determine the proper construction of the engagement terms and to identify the contracting parties.
Tods Murray WS v Arakin Ltd [2010] CSOH 90, 2011 SCLR 37	Requirement of expert evidence in professional negligence claims	Initially cited to argue for dismissal without expert evidence; approach modified following later authority.
Chisholm v Grampian Health Board [2022] CSOH 39, 2022 SCLR 253	Professional negligence and expert evidence requirements	Referenced in context of expert evidence adequacy and pleadings.
Ronnie O'Neill Freight Solutions Limited v MacRoberts [2023] CSOH 75, 2023 SLT 1196	Professional negligence and expert evidence requirements	Referenced alongside other cases in relation to expert evidence standards.
Cockburn v Cockburn's Judicial Factor [2024] CSOH 69, 2024 SLT 1089	Critique of legal basis for dismissal without expert evidence; assessment of expert reports	Influenced modification of defenders' argument and supported the court’s approach to expert evidence.
Hunter v Hanley 1955 SC 200, 1955 SLT 213	Standard of care in professional negligence	Applied as the test for professional negligence in relation to expert evidence.
Centenary 6 Limited v TLT LLP [2024] CSIH 29, 2024 SLT 1106	Pleading requirements for loss of chance claims	Used to assess adequacy of pleadings regarding causation and loss of chance.
Kyle v P & J Stormonth Darling WS 1993 SC 57, 1994 SLT 191	Pleading and proof of loss of chance in negotiation	Guided the court’s acceptance of the Plaintiff’s pleadings as adequate for proof of lost chance.
OCRA (Isle of Man) Ltd v Anite Scotland Ltd 2003 SLT 1232	Assumption of liabilities by successor business entities	Applied to reject presumption that the fourth defender assumed liabilities of the fifth defender.

Court's Reasoning and Analysis

The court began by examining the contractual documents sent to the Plaintiff, noting the ambiguity in the use of the phrase "in association with" and the references to multiple legal entities. While the third defender (an English LLP) was not authorized to practice law in Scotland and had no direct involvement in the Plaintiff’s case, the court considered the perspective of a reasonable client unfamiliar with legal regulatory distinctions. It concluded that the Plaintiff would reasonably understand that both the third and fifth defenders were offering to act for her, thus creating a tripartite contractual relationship. However, the precise duties and responsibilities of the third defender remain to be determined at proof.

Regarding the fourth defender, the court found the Plaintiff’s case irrelevant as the entity was incorporated after the contract was formed and there was no basis to infer it assumed liabilities of the fifth defender. The court applied established principles from precedent, emphasizing that liability assumption requires continuity of business form, which was absent here due to the change from sole trader to limited company.

The court addressed the issue of expert evidence, recognizing that earlier authority supported dismissal of negligence claims lacking expert support. However, a recent ruling (Cockburn) undermined that approach. The Plaintiff’s expert provided two reports clarifying the factual basis and application of the professional negligence standard (Hunter v Hanley). The court found the expert evidence sufficient to allow the claim to proceed to proof, deferring detailed scrutiny until trial.

On causation, the court acknowledged the abstract relevancy of the Plaintiff’s claim for loss of a chance to negotiate a settlement with South Wales Police. It relied on precedent (Kyle) to hold that detailed specification of negotiation mechanics or settlement terms was unnecessary at pleadings stage. The Plaintiff’s averments were adequate to justify proceeding to proof on this issue.

Holding and Implications

The court sustained the defenders' plea-in-law to the extent of dismissing the case against the fourth defender for irrelevancy and lack of specification.

The case against the third and fifth defenders was found to be relevantly stated and was allowed to proceed to proof, with the court reserving further determination of issues concerning negligence and causation for trial.

The direct effect of this decision is to remove the fourth defender from the litigation while permitting the Plaintiff’s claims against the other solicitor defendants to continue. The court did not set new precedent but clarified the application of contractual construction principles in the context of multi-entity legal service arrangements and affirmed established requirements for expert evidence and pleading in professional negligence and loss of chance claims.