Amie McCann against Harper Macleod (Court of Session)

Factual and Procedural Background

The Plaintiff brought proceedings against the Defendant, a firm of solicitors, alleging professional negligence in the provision of legal services related to a road traffic accident claim. The Plaintiff contended that the Defendant failed to properly investigate the claim and negligently advised her to accept a settlement offer substantially below the claim’s true potential value. The Plaintiff accepted this advice and compromised her claim, thereby losing the opportunity to negotiate a better settlement or pursue a higher damages award in court.

The case was considered on procedural grounds by the court, focusing primarily on criticisms of the pleadings concerning causation, the absence of an expert report, and quantum. The challenge regarding the expert report was withdrawn, and the quantum criticism was treated as secondary, leaving causation as the central issue for determination.

Background facts include that the Plaintiff was injured in a road traffic accident in 2014, suffering serious and life-changing injuries. The Defendant was instructed to pursue the claim in October 2014, and a settlement offer was made in October 2016. Medical reports were obtained in early 2017, and the Defendant’s solicitor advised the Plaintiff on contributory negligence and settlement offers, which the Plaintiff accepted. The Plaintiff alleges that the Defendant did not adequately investigate liability or quantum before advising settlement.

Legal Issues Presented

1. Whether the Plaintiff has averred a relevant case in causation linking the Defendant’s alleged negligence to the loss suffered.
2. Whether the pleadings sufficiently specify the counterfactual scenario and the advice the Plaintiff would have received and acted upon if competent advice had been given.
3. The appropriate legal framework for assessing causation and loss in claims involving loss of a chance due to professional negligence.
4. Whether the Plaintiff’s pleadings meet the standards of specificity and fair notice required to proceed to proof.

Arguments of the Parties

Defendant's Arguments

• The Plaintiff has failed to aver a relevant case in causation, warranting dismissal of the action.
• The Plaintiff must prove on the balance of probabilities what she would have done upon receipt of competent advice, including specifying the counterfactual advice and her response to it.
• The pleadings lack sufficient specificity and the necessary "connective tissue" between breach of duty and loss.
• Reliance on the Supreme Court decision in Perry v Raleys Solicitors [2020] AC 352, which establishes a two-limbed approach distinguishing loss dependent on the claimant’s actions from loss dependent on third-party actions.
• Criticism of the Plaintiff’s use of phrases such as "it is likely," which suggest a balance of probabilities test inappropriate for a loss of chance claim.
• Distinguished the present case from Kyle v P&J Stormonth Darling and Darknell-King v Slater and Gordon, arguing the Plaintiff failed to plead the advice she ought to have received and that she would have followed it.
• Quantum averments are unclear and not adequately supported.

Plaintiff's Arguments

• The Plaintiff seeks a Proof before Answer and contends her pleadings are adequate to proceed.
• The Plaintiff would have succeeded in establishing breach of duty and liability of the driver, with no positive averments to the contrary from the Defendant.
• The claim is for loss of a chance, falling within the second limb of the Allied Maples test, where the loss depends on what third parties (insurer or court) would have done, not on the Plaintiff’s actions.
• The Defendant’s advice to accept settlement was negligent because it was given without proper investigation of liability or quantum.
• Relied on the approach in Yeoman v Ferries 1967 SC 255 and Kyle v P&J Stormonth Darling 1993 SC 57, where the loss of a right to pursue a claim is compensable even if the original claim’s success is uncertain.
• The Plaintiff is not required to plead a detailed counterfactual scenario or what advice ought to have been given; the focus is on the loss of a chance to obtain a better settlement or award.
• The pleadings provide fair notice of the nature and potential value of the claim, supported by valuation and vouching disclosed to the Defendant.
• Disputed that an expert report was required at this stage, citing recent authorities.

Table of Precedents Cited

Court's Reasoning and Analysis

The court examined the pleadings in light of the established legal principles governing loss of chance claims arising from professional negligence. It recognized the two-limbed approach from Perry v Raleys Solicitors, distinguishing between losses dependent on the claimant’s own actions (requiring proof on the balance of probabilities) and those dependent on third-party actions (assessed as loss of chance).

Applying this framework, the court found that the Plaintiff’s claim predominantly falls within the second limb, as the loss results from what third parties—the insurer or the court—would have done had the claim not been compromised. Accordingly, the Plaintiff was not required to plead a detailed counterfactual scenario specifying the precise advice she would have received or that she would have followed it.

The court considered the Defendant’s criticisms regarding lack of specificity and the use of probabilistic language but concluded that these did not render the pleadings inadequate to proceed to proof. The pleadings provided sufficient fair notice of the claim, including the nature of the negligence, the loss of opportunity, and the potential value of the claim, supported by disclosed valuation materials.

The court distinguished the present case from scenarios where the claimant fails to plead what they would have done on competent advice, noting that here the negligence was positive advice to settle at an undervalue rather than a failure to give advice. It also confirmed that expert reports were not mandatory at this stage.

In sum, the court held that the pleadings meet the standards set out in binding authorities, particularly Kyle v P&J Stormonth Darling, and are sufficient to allow the case to proceed to a Proof before Answer.

Holding and Implications

The court repelled the Defendant’s second plea-in-law and allowed a Proof before Answer on the Plaintiff’s averments, reserving all questions of expenses meantime.

This decision permits the Plaintiff to proceed to full proof of her claim that negligent advice caused her to lose the opportunity for a better settlement or damages award. The ruling clarifies that in loss of chance claims arising from positive negligent advice to settle, the claimant need not plead a detailed counterfactual scenario of alternative advice and actions on a balance of probabilities. Instead, the claim may rest on loss of chance principles where the loss depends on third-party responses.

The court’s decision does not establish new precedent but affirms and applies existing legal principles from key authorities, emphasizing a pragmatic and fair approach to pleading and proof in professional negligence claims involving loss of chance.