Amie McCann against Harper Macleod (Court of Session) [2025] CSOH 27 (11 March 2025)

OUTER HOUSE, COURT OF SESSION

[2025] CSOH 27

A37/22

OPINION OF LADY HALDANE

In the cause

AMIE MCCANN

Pursuer

against

HARPER MACLEOD

Defender

Pursuer: Di Rollo KC, McGregor KC; Digby Brown LLP

Defender: Paterson KC, K Tyre advocate; Kennedys

11 March 2025

Introduction

[1]

The pursuer is Amie McCann. She has brought proceedings against the defender,

which is a firm of solicitors, alleging professional negligence on their part. The pursuer and

the defender entered into a contract for the provision of legal services. Those legal services

took the form of the defender agreeing to act on behalf of the pursuer in connection with a

claim arising from a road traffic accident. The negligence alleged, put very simply, is that

the defender failed properly to investigate the claim and that notwithstanding that lack of

investigation the pursuer was advised by the defender to accept an offer in settlement of her

claim that was substantially below its' potential true value. She followed that advice and

compromised her claim and as a result it is contended that she has now lost the opportunity

to negotiate a substantially better settlement, or to go to court and seek a significantly higher

award of damages from the court.

[2]

The case came before me for a discussion on the Procedure Roll at the instance of the

defender. There were originally three broad areas of criticism of the pleadings, relating to

causation, the lack of an expert report, and the averments on quantum. However as a result

of discussion between the parties, the challenge relating to the lack of an expert report was

not insisted upon, with the criticisms of quantum also said to be by this stage an "add on"

rather than the substantive point in issue. The discussion therefore focussed to a large

extent on the averments relating to causation.

Background

[3]

In order to give context to the arguments advanced, it is necessary to understand a

little about the original claim underlying the present case. On 24 August 2014 the pursuer

was on a road in Beith when she was struck by vehicle driven by a Mr Johnstone. He failed

to stop at the scene. She avers that she suffered significant and serious injuries, including

orthopaedic injuries, and a head injury. A medical report instructed by the defender

described those as "life changing injuries which have left her (the pursuer) with permanent

disability". The report further advised that the pursuer's disability "will significantly

compromise her in the long term to carry out any meaningful occupation."

[4]

The pursuer instructed the defender to pursue a claim on her behalf in October 2014.

A claim was intimated to the driver's insurers. In October 2016, an offer in settlement of

£125,000 net of recoverable benefits was made. At that time the benefits amounted to

approximately £25,000. The medical report referred to above was instructed in January 2017

and sent to the agent for the driver, a Mr Johnstone. In February 2017 the defenders'

Ciaran Dougherty met with the pursuer and provided her with a copy of the

aforementioned medical report. He advised her that there were difficulties in establishing

liability and that contributory negligence might be between 60 and 90%. He thought the

"best case" scenario on contributory negligence was 70% and suggested that implied a full

valuation of the claim at between £500 - 800,000. A counter proposal in the sum of £200,000

was advised. The pursuer accepted that advice. A further offer was made by the agent for

Mr Johnstone and his insurer in the sum of £168,224 net of recoverable benefits.

Mr Dougherty advised the pursuer that the offer was a reasonable one. The pursuer

accepted that advice and the offer in settlement of her claim. It is averred on the pursuer's

behalf that at no point were full and proper investigations into the circumstances of the

accident carried out by the defender, and nor was the quantum of her claim fully and

properly investigated. The advice to settle on the terms offered was therefore, in all the

circumstances, negligent.

Submissions for the defender

[5]

Counsel for the defender, Mr Paterson, adopted his note of argument, subject to

certain qualifications, as summarised in paragraph 2 above. The principal issue for

determination therefore was whether the pursuer has averred a relevant case in causation.

The defenders' position was that she had not, and so for that reason, the court should

sustain the defenders' first plea-in-law and dismiss the action.

[6]

Mr Paterson began by looking at what he submitted were the relevant legal

principles as encapsulated in the judgment of the Supreme Court in Perry v Raleys

Solicitors [2020} AC 352. The facts of Perry were not entirely on all fours with the present

case, arising as they did from an alleged failure to make a services claim upon a government

compensation scheme for miners who had developed Vibration White Finger. However the

Supreme Court confirmed the proper approach to be taken when claims involving loss of a

chance are made. In summary, that to the extent that the question whether negligent advice

had caused a claimant's loss depended on what the claimant would have done upon receipt

of competent advice, this had to be proved by the claimant upon the balance of probabilities.

To the extent that the question depended on what others would have done any loss would

be determined on a loss of chance evaluation. Therefore, where negligent professional

advice had caused the loss of an opportunity to institute a legal claim, the claimant would

have to prove that, if competently advised, he or she would have taken any necessary steps

required of him or her to convert the receipt of competent advice into some financial

advantage to him or her, which was an essential element in the chain of causation.

[7]

Mr Paterson relied in particular upon the following passages in the speech of

Lord Briggs:

"20.

For present purposes the courts have developed a clear and commonsense

dividing line between those matters which the client must prove, and those which

may better be assessed upon the basis of the evaluation of a lost chance. To the

extent (if at all) that the question whether the client would have been better off

depends upon what the client would have done upon receipt of competent advice,

this must be proved by the claimant upon the balance of probabilities. To the extent

that the supposed beneficial outcome depends upon what others would have done,

this depends upon a loss of chance evaluation.

21.

This sensible, fair and practicable dividing line was laid down by the Court of

Appeal in Allied Maples Group Ltd v Simmons & Simmons [1995] 1 WLR 1602, a

decision which received surprisingly little attention in either of the courts below

(although, in fairness, the trial judge cited another authority to similar effect: namely

Brown v KMR Services Ltd [1995] 4 All ER 598). Allied Maples had made a corporate

takeover of assets and businesses within the Gillow group of companies, during

which it was negligently advised by the defendant solicitors in relation to seeking

protection against contingent liabilities of subsidiaries within the vendor's group.

Allied Maples would have been better off, competently advised, if, but only if: (a) it

had raised the matter with Gillow and sought improved warranties and (b) Gillow

had responded by providing them. The Court of Appeal held that Allied Maples had

to prove point (a) on a balance of probabilities, but that point (b) should be assessed

upon the basis of loss of the chance that Gillow would have responded favourably.

The Court of Appeal (Stuart-Smith, Hobhouse and Millett LJJ) were unanimous in

that statement of legal principle, although they differed as to the outcome of its

application to the facts. It was later approved by the House of Lords in Gregg v

Scott [2005] 2 AC 176, at para 11 by Lord Nicholls of Birkenhead and para 83 by

Lord Hoffmann.

The Allied Maples case was about the loss, due to negligence, of the

opportunity to achieve a more favourable outcome in a negotiated transaction, rather

than about the loss of an opportunity to institute a legal claim. But there is no

sensible basis in principle for distinguishing between the two, and none was

suggested in argument. In both cases the taking of some positive step by the client,

once in receipt of competent advice, is an essential (although not necessarily

sufficient) element in the chain of causation. In both cases the client will be best

placed to assist the court with the question whether he would have taken the

requisite initiating steps. He will not by the defendant's breach of duty be unfairly

inhibited in proving at a trial against his advisor that he would have done so, save

perhaps where there is an unusual combination of passage of time and scarcity of

other probative material, beyond his own unaided recollection.

23.

Two important consequences flow from the application of this balance of

probabilities test to the question what the client would have done, in receipt of

competent advice. The first is that it gives rise to an all or nothing outcome, in the

usual way. If he proves upon the narrowest balance that he would have brought the

relevant claim within time, the client suffers no discount in the value of the claim by

reason of the substantial possibility that he might not have done so: see Stuart-Smith

LJ in the Allied Maples case [1995] 1 WLR 1602, 1610. By the same token, if he fails,

however narrowly, to prove that he would have taken the requisite initiating action,

the client gets nothing on account of the less than 50% chance that he might have

done so.

24,

The second consequence flows directly from the first. Since success or failure

in proving on the balance of probabilities that he would have taken the necessary

initiating step is of such fundamental importance to the client's claim against his

advisor, there is no reason in principle or in justice why either party to the negligence

proceedings should be deprived of the full benefit of an adversarial trial of that issue.

If it can be fairly tried (which this principle assumes) then it must be properly tried.

And if (as in this case) the answer to the question whether the client would, properly

advised, have taken the requisite initiating step may be illuminated by reference to

facts which, if disputed, would have fallen to be investigated in the underlying

claim, this cannot of itself be a good reason not to subject them to the forensic rigour

of a trial. As will appear, this has an important bearing on the extent of the general

rule that, for the purpose of evaluating the loss of a chance, the court does not

undertake a trial within a trial".

[8]

From that analysis, Mr Paterson drew three propositions:

One does not depart from the basic requirement that the pursuer must prove

his or her loss has been caused by the alleged breach of duty;

It is for the pursuer to aver and prove what she would have done once in

receipt of competent advice; and

It is axiomatic that as a component part thereof the pursuer must aver and

prove the competent advice that she ought to have received and upon which

she would have acted.

[9]

Lest there be any doubt about those propositions, Mr Paterson submitted, that

approach was the one adopted in this jurisdiction a number of years before the decision in

Perry in the case of Kyle v P&J Stormonth Darling WS 1993 SC 57. There the pertinent

observations of the court (Lord McCluskey, Lord Brand and Lord Weir) are to be found at

page 67:

"In our opinion, the correct view of the law of Scotland in relation to a claim by a

person who, as a litigant, has lost the right to pursue some legal right in a litigation,

the loss resulting from negligence on the part of his legal advisers, is to be found in

the opinion of Lord Avonside in Yeoman, to which we will return. But before turning

to the particular circumstances of this case as they emerge in the pleadings, we

should say something about the principles that govern ordinary claims for damages

in the law of negligence of Scotland. In such cases, the pursuer claims that a

negligent act has caused him to sustain loss, injury and damage. He has to aver, and

establish, (a) the negligent act, (b) loss, injury and damage, and (c) that that act

caused the loss, injury and damage complained of.

The burden of proof rests upon him in relation to each of these three elements; and,

under our system of pleading, he must aver each element with a degree of

specification of detail that gives the alleged wrongdoer fair notice of the facts which

the pursuer intends to prove relating to each element. In these respects, the rules

governing claims based on breach of contract or on both such breach and on

negligence are not materially different.

[...]

If the same analysis is made of the present type of case where, as a result of his

solicitor's negligence in failing to take a peremptory step timeously, a litigant or

would-be litigant loses the right to advance in court against a third party a claim that

he would otherwise have been able to advance, the same three elements are present.

The negligent act consists of the agent's neglect to take the peremptory step

timeously. The loss consists of the inability to pursue the claim thereafter.

The causal link between the act and the loss presents little problem in such a case.

However, when it comes to a closer consideration of the loss itself it must be clearly

recognised that the solicitor's negligence has not caused the would-be litigant to lose

his claim against the third party; it has caused him to lose only the right to advance

that claim in a court of law. Accordingly, in assessing the monetary value of what

has been lost, the court has to ask two questions: (1) Did the right to advance the

claim have any tangible value at all at the time when it was lost? (2) If it did, how

can that value be assessed? Obviously, if the right to advance the claim had no value

at all at the time of the negligent act, then the would-be litigant would not be entitled

to an award against the negligent solicitor: having lost nothing he would not be

entitled to compensation for any loss. If, however, the right to advance the claim did

have a tangible value then the court would have to assess that value on the basis of

the material placed in evidence before the court. Factors that may be taken into

account in arriving at the monetary value of the loss may well include any factor that

would have been directly relevant to the assessment of the value of the original claim

now lost against the third party, the hypothetical prospects of success in the litigation

in which that claim was to be pursued, and the lost possibilities of a compromise

settlement with the third party in the now lost litigation."

The court continued at p 69G - 70B,

"The criticisms of the specifications were, in the particular circumstances of this case,

misconceived. In addition to what is already averred, counsel for the reclaimers

suggested that the pursuer should also have condescended upon (a) the mechanics of

how a compromise might have been reached and (b) the terms on which the

opposing party in the original litigation would have been prepared to settle. In our

view, the first is unnecessary and the second is virtually impossible. It cannot be

suggested that it would be necessary for those acting for the present pursuer to

precognosce his original opponent, the solicitors and counsel for the original

opponent, and endeavour to obtain their current views as to the terms that might

have tempted them to decide that a compromise settlement would have been in

Mr Harvey's best interests. That would be an absurd exercise, yet, without it, the

averments desiderated as to the potentially acceptable terms could not properly be

made. The responsibility will rest upon the court in the light of all the facts

established before it, including, in this case, the terms of the interlocutors of the

sheriff and sheriff principal and the observations thereon in the note by counsel

which forms part of the pleadings, to determine if a compromise could have been

achieved and, if so, upon what terms. In our view, the pleadings are adequate to

enable the parties to lay before the court material upon which the court can properly

be invited to make that judgment. Of course, if insufficient material is laid before the

judge who hears the proof, then the person on whom the onus lies in relation to the

matter at issue will fail in relation to that matter."

[10]

In summary, Mr Paterson submitted that in order to plead a relevant case there must

be firstly averments of causation which explain how the negligence alleged has caused the

loss complained of, and secondly those averments must be averred with sufficient specificity

to give fair notice of the case that the defender required to meet. In the present case the

pursuer's pleadings were missing the "connective tissue" between the averments of breach

of duty, and the averments of loss.

[11]

Applying that legal framework to the pleadings in the present case. Mr Paterson

accepted that the factual averments set out in statement 4 of the Record were sufficient to

allow the inference to be drawn that the pursuer was offering to prove that the driver of the

car, Mr Johnstone, was responsible for the accident, although he observed that there was no

express averment to that effect. However in statement 5 the pursuer set out criticisms of

steps taken (as well as those not taken) by the defenders and in particular their solicitor

Ciaran Dougherty. It is then averred on page 7, letter C/D, that:

"No ordinarily competent solicitor exercising reasonable care and skill would have

failed to instruct such reports or advise the pursuer of changes affecting the value of

her claim. Had the claim in terms of both liability and quantum been properly

investigated, it is likely that the pursuer would have negotiated an increased pre-

litigation settlement failing which she would have raised proceedings at the Court of

Session. In those circumstances, it is likely that the pursuer would have negotiated

an increased judicial settlement or alternatively that the Court would have awarded

damages far more than the sum she did in fact settle at. As a result of the defenders'

failures, the pursuer lost the opportunity to advance her claim reflecting the full

nature and extent of her loss, injury and damage. As a result, the pursuer has

suffered loss and damage as hereinafter condescended upon."

The difficulty with those averments was two-fold, contended Mr Paterson - firstly that in a

loss of a chance claim quantum is assessed on the basis of the value of the lost right, and it

was wrong therefore to advance such a claim on what bore to be a balance of probabilities

basis. Secondly the pursuer did not explain what the proper investigation of the claim in

terms of liability would have shown, nor what advice the pursuer would have received on

that issue, relative to the advice Mr Dougherty did in fact give on the question of liability

and contributory negligence. That was a criticism different to the one made by the defender,

and rejected by the Inner House in Kyle, and similarly a different criticism to the one made

by the defender and rejected in the recent Outer House case of Darknell-King v Slater and

Gordon [2024] CSOH 100.

[12]

In the case of Darknell-King, the alleged negligence was a failure on the part of the

defenders to advise the pursuer, then a police constable serving with South Wales police,

that she might have a claim, and to institute such, against the police force arising out of

injuries suffered by her when sent by them on a diving course in Scotland. She thus lost the

opportunity to negotiate an advantageous settlement with the force. The criticism of her

pleadings were summarised by the Lord Ordinary (Sandison) as follows:

"[22] Finally, counsel turned to criticise the pursuer's averments as to the causation

of her loss. Her claim was now only for the loss of the chance of securing a

negotiated settlement. There were well-known and settled pleading requirements in

a case concerning loss of a chance. The chance in question required to cross a

threshold of materiality. That required pleading. Such a case also required specific

averment of what the contingencies were. Different approaches were taken to issues

which depended on what the pursuer would have done compared to issues which

depended on what a third party would have done: Centenary 6 Limited v TLT LLP

[2024] CSIH 29, 2024 SLT 1106 at [68] and [69] and the further authorities there cited.

The pursuer made no attempt to set out the counterfactual scenario she maintained

would have been the consequence of the advice she claimed the solicitors' defenders

should have given. The case could not succeed without proof of these matters and

there could be no proof without averment".

However, at paragraph 35, the Lord Ordinary concluded:

"[35] The abstract relevancy of the pursuer's claim to have suffered loss in

consequence of a lost opportunity to negotiate a settlement with the Chief Constable

of South Wales Police is not disputed; the complaint is essentially one of a lack of

specification as to what the pursuer proposes to prove about the incidents and

timing of the hypothetical negotiation I question. Although this case is not entirely

on all fours with Kyle v P & J Stormonth DarlingWS, where the pursuer claimed the

loss of a chance in litigation as opposed to the loss of chance in negotiation, at least

some of the observations made by the court in that case comfortably read over into

the present context (His Lordship then sets out the passage from Kyle, quoted at the

end of paragraph 9 above)"

and concluded:

"The court's observations about what it considered respectively to be unnecessary

and virtually impossible apply to the demands for further specification made in the

present case. The solicitor defenders' pleadings set out at length - and their counsel

repeated orally in argument - the difficulties, which they estimate as likely and

formidable, which may attend the pursuer's attempt to establish that she lost, by way

of the defenders' claimed negligence, something of tangible and ascertainable value.

The last sentence in the passage just quoted from Kyle deals with how the court will

require to approach any such difficulties as manifest themselves in the course of the

proof. The pursuer's pleadings are, for the reasons set out in Kyle, adequate to justify

the allowance of such a proof."

[13]

Drawing all these strands together, Mr Paterson sought to distinguish the complaint

made by the defenders in the present case from that made in both Kyle and Darknell-King by

submitting that the difficulty in the present case arose because the pursuer did not aver in a

non-negligent scenario the advice that she ought to have received nor that she would have

followed that advice. That mattered because the court was not bound to determine

causation as a loss of a chance, rather it would depend on which of the two categories

described in Perry the present case fell. The steps that the pursuer would have taken were

not to be based on the loss of a chance principles but on the balance of probabilities. There

was an absence of essential pleading in the pursuer's case. If that were accepted, then the

pursuer had not averred a relevant case and the action fell to be dismissed.

[14]

Mr Paterson ultimately touched only briefly on the averments of quantum, accepting

that the pursuer did aver what the potential value of her claim might have been but he

suggested it was not easy to discern on what basis the sum concluded for in the Summons

was put forward.

Submissions for the pursuer

[15]

Mr Di Rollo invited the court to allow a Proof before Answer of his averments. He

adopted his note of argument with one caveat related to his expression of the relevant test in

paragraph 5, where it was stated that the pursuer must show, on a balance of probabilities,

that if she had received competent advice, she would have settled her claim for a reasonable

sum. That did not reflect his positon and he would seek to formulate that proposition

differently in the course of submissions. Otherwise, Mr Di Rollo contended, his note of

argument anticipated the approach that had been taken by the Lord Ordinary in the case of

Darknell-King, although the note had been drafted some 4 months before that decision had

been issued. That case properly encapsulated the approach to be taken in a case of this kind.

[16]

Mr Di Rollo contended that the pursuer made it entirely clear in her pleadings that

she would have succeeded in establishing breach of duty in the original action, and the basis

upon which she would have established the responsibility of the driver of the vehicle in

question. He noted that the defender made no positive averment to the contrary, and that

there were no averments raising the question of contributory negligence. That, he suggested

set the context for the claim on liability which had been lost to the pursuer.

[17]

This was a claim for a loss of a chance, therefore the pursuer was in the second limb

of the Allied Maples test, that is to say the question for the court would be what the actions of

a third party would be, whether that be the putative insurer or the court itself, if a

compromise had not been achieved. There would not be a re-litigation of the case, but the

court would need to assess a reasonable award and the notional value of the original claim

would be a reference point. An assessment would then need to be carried out of the

difference between the notional reasonable award and the amount already received by the

pursuer. The point that the defender had not engaged with, was that the question was not

what advice the pursuer should have been given, rather the key allegation was that she had

been advised to compromise the claim at a figure at which she should not have

compromised. Despite not having investigated liability or quantum the solicitor had

tendered advice to the pursuer that the offer made was a reasonable one. What could clearly

be seen was that the pursuer was a person who took advice tendered to her. Here, having

been told that the offer was a reasonable one, she took that advice. The defender contended

in answer 5 that the offer was a reasonable one. There was no requirement for a

"counterfactual" scenario in a case like the present.

[18]

Such an approach was entirely consistent with Yeoman v Ferries 1967 SC 255. There,

in a claim by a painter whose claim for injuries suffered at work had been allowed to time

bar through the negligence of his solicitor, Lord Avonside made clear at pages 260-261 that

the proper approach is not simply to re-litigate the original action and award damages (or

not) based on the hypothetical outcome of the case. He went on to summarise the proper

approach at page 264 in the following way:

"Where a solicitor has been negligent, in a case like the present, he has, in my

opinion, been guilty of depriving his client of a right, the right legitimately to press a

claim for damages. I consider it would be grossly unjust to that client to say that that

right had no value because, years after it should have been pressed, if necessary, to

action and trial, it was held that the action of the pursuer failed at a time when, and

in a court in which, it would not have been judged, but for the negligence of the

solicitor concerned.

In my opinion, it cannot be said that the pursuer would have failed in his action and,

on balance, I think the odds are that a jury would have given him a verdict. In

addition, and apart from that, I am of opinion that the employer would have been

advised to make an offer, and that not a derisory or `nuisance value' offer, in the

circumstances I have outlined. I am at a loss to see why, in the appropriate case, that

factor should not be taken into account. As Lord Strachan pointed out in

Robertson vBannigan, it is a matter of judicial knowledge that it is very usual for

reparation actions to be settled before trial, and, it might be added, more are settled

than go to trial. I would respectfully agree with him, and this seems to accord with

what was said in Kitchen, that this is a matter of real and definable value to an

intending pursuer and that he may well recover something in settlement, although

he might not have succeeded had a trial gone on. I do not accede to the argument

pressed on me that all those are inadmissible speculations incapable of proof in a

legal sense. I consider that a judge in a case of this kind, having heard the evidence

available to him, is entitled to draw on his own experience in a field in which

probabilities are open to decision and practice within knowledge. The purported

application of narrow limits of legalistic rectitude to preserve a solicitor from the

consequences of his admitted negligence is at once distasteful in suggestion and

unjust in result. I see no difficulty in a judge coming to a proper decision on all the

facts and circumstances of the case, insofar as those lie within the field of the test of

probability."

[19]

This was exactly the approach explicitly endorse by the Inner House in Kyle. In the

present case, the negligent act consisted of the pursuer being advised to accept an offer, and

her loss arose from her being unable to proceed with her claim because she has now

compromised it. This was exactly the scenario envisaged in Kyle at page 69A/B where the

court stated:

"That is a different situation from one in which a litigant has, through the solicitor's

carelessness, lost the right to advance some legal claim. If it can be shown that at the

time when it was lost the claim had a value, then there is both injuria and damnum

and the only remaining issue is the potentially difficult one of assessing what is the

true measure of the loss".

[20]

In the present case the pursuer was offering to prove that the claim did have a value.

Therefore in a case of this kind once the pursuer has established that there was negligence,

thereafter the question of causation becomes a matter for the court. The negligence in the

present case was not a failure to give advice, rather it was the giving of positive advice that

resulted in settlement of the claim at a figure that was substantially below what the case was

worth. It was not incumbent upon the pursuer to aver what she would have done in receipt

of competent advice. The course desiderated by the defenders required the pursuer to aver

not just that she should not have been told to settle, but what advice would have been given

had a better offer been made or had she not been given negligent advice. That was not the

proper approach in the context of a claim based on loss of a chance.

[21]

Mr Di Rollo acknowledged the criticism made of the use of the phrase "it is likely" in

the averments setting out what ought to have happened absent the allegedly negligent

advice to settle as suggesting a balance of probabilities test, but submitted that such was an

overly technical criticism and that it was clear that what was being averred was the loss of

the chance, which was not assessed on the basis of a balance of probabilities. Rather the

court would determine what the prospects would have been, applying its own knowledge of

the court system and practice in the same way as Lord Avonside had done in Yeoman, the

Inner House had confirmed in Kyle, and as had been accepted by the Lord Ordinary in

Darknell-King at paragraph 36.

[22]

The pursuer was offering to prove a relatively straightforward case - that she had

been extremely badly injured, sustaining life changing injuries, that she had a claim which

looked "very good on paper", and that her averments demonstrated that (a) the accident

was caused by the fault of the named driver, and (b) the nature and extent of the injuries

suffered as a consequence. Her pleadings offered fair notice of all relevant matters. In

addition, although not required to do so at this stage, the pursuer had prepared a valuation

supported by relevant vouching and this had been disclosed to the defenders. There was

thus adequate in the pleadings, supported by a valuation and vouchings, to give fair notice

to the defenders what the potential value of the claim might be.

[23]

Although the defenders no longer insisted on an argument based on a lack of expert

report, Mr Di Rollo nevertheless touched briefly on that aspect of matters, under reference to

Cockburn v Hope [2024] SLT 1089 and D v Victim Support Scotland 2018 SLT (Sh Ct) 91 to

suggest that an expert report would not in any event have been required, as in a case like the

present, the assessment was all one for the court to make.

[24]

In summary, Mr Di Rollo submitted that the pursuer had sufficiently averred that

she has been deprived of her right of action by being given negligent advice to settle the

case, and that if the court accepted that contention then it would have to value the loss of

chance suffered by the pursuer and would do so by applying well established principles set

out by Lord Avonside in Yeoman, as approved in Kyle v P&J Stormonth Darling. In

concluding with the assistance of a visual aid to underline his point, Mr Di Rollo produced a

copy of the Session papers containing the pleadings in Yeoman v Ferries - the short point

being made was that there was very little by way of averment at all in that case, and nothing

of the sort of specification desiderated by the defenders in the present matter, and yet the

court was well able to carry out its task of evaluation of the worth of the chance lost to the

pursuer in that case.

Analysis and decision

[25]

In common with the position in the recent decision in Darknell King v Slater and

Gordon, the complaint in the present case is not directed at the fundamental relevancy of the

pursuer's claim, rather it is focussed on what is said to be a lack of averments linking the

alleged breach of duty with the loss said to have been sustained. The defenders contend that

the template for the proper approach is to be found in Perry v Raleys solicitors (as recently

approved and applied in this jurisdiction in Centenary 6 Ltd v TLT LLP [2024] CSIH 13 at

paragraph 66). Specifically, that the pursuer requires to aver, firstly, what is the

counterfactual scenario assuming non-negligent advice had been given, tested on a balance

of probabilities, and thereafter what the loss arising is said to be, evaluated as a loss of a

chance. It is argued that the pursuer fails to do the former, and pleads the latter on the

wrong basis.

[26]

The question of whether or not the two limbed approach set out in Perry v Raleys

(essentially confirming the earlier dicta in Allied Maples on this issue) is applicable either

separately or cumulatively is of course fact sensitive. The court in Perry explains that

pleadings setting out what the claimant would have done if given competent advice are

required in a scenario where the claimant has lost the right to institute a claim. Lord Briggs

states at paragraph 20:

"To the extent (if at all) that the question whether the client would have been better

off depends upon what the client would have done upon receipt of competent

advice, this must be proved by the claimant upon the balance of probabilities. To the

extent that the supposed beneficial outcome depends upon what others would have

done, this depends upon a loss of chance evaluation."

(Emphasis added)

[27]

Lord Briggs therefore recognises that it will not always be the case that both limbs

will require to be fulfilled in every case. He goes on to confirm that there is no reason to

distinguish the scenario in Perry from the one in Allied Maples where the negligence

consisted of failing to advise the claimant about a point that should have been raised in

negotiation. That of course makes perfect sense; the claimant has to prove, in a scenario

where a claim has not been instituted timeously, and based on longstanding principles

requiring proof of loss linked to a breach of duty, that had the correct advice been given he

or she would have followed that advice, thus engaging an enquiry into the potential value of

that loss of the chance to institute proceedings or negotiate on a better footing. The scenario

in both Perry and Allied Maples of course related to a failure to give advice on a cause of

action, or line to be taken in negotiation, at all.

[28]

In the present case the underlying alleged failure is slightly different. Here the

pursuer is not suggesting that the defenders failed to give her advice in relation to

instituting an action, rather it is said that the positive advice that was tendered following

intimation of her claim was negligent. In taking that advice the pursuer settled her claim at

considerably undervalue and has now lost the chance of securing a better settlement, or

award of damages. That is a different scenario from the one in Perry, and begs the question

as to whether it is truly incumbent upon the pursuer in a case such as the present one, to

plead in terms, as a matter of fair notice, (a) what advice ought to have been tendered in

respect of liability, contributory negligence and quantum, (b) that the defenders ought to

have advised her not to accept the offer made on the basis that it was inadequate, and

[29]

In addressing that question it is worth observing that in the recent case of

Darknell-King, in which reliance was placed upon the decision in Centenary 6 Ltd and

paragraph 68 in particular, the factual scenario was, to an extent, closer to that of Perry v

Raleys, than the present case. That is to say that the allegation was that due to allegedly

negligent advice relating to the prospects of success of her claim, the pursuer was deprived

of the right to intimate proceedings to South Wales police at all. And yet in that case the

Lord Ordinary did not find it necessary, as a matter of specification or fair notice, that the

pursuer required to plead the counter factual situation had competent advice been tendered

in order to be entitled to a Proof before Answer of her averments relating to the lost chance

of raising proceedings.

[30]

Therefore, bearing in mind the words of Lord Briggs, the proper approach is to

consider the extent, if at all, to which the pursuer's losses depend on steps she would have

taken, as opposed to what a third party (the insurer of the driver, or the court) would have

done. She pleads that no ordinarily competent solicitor would have advised her that the

sum offered in settlement was reasonable, and that the defenders knew or ought to have

known that she was likely to follow the advice they provided. She further offers to prove

that had a claim in terms of both liability and quantum been properly investigated it is likely

that the pursuer would have negotiated an increased pre-litigation settlement failing which

she would have raised proceedings at the Court of Session, and that she would have

received an award of damages in a sum greater than she did in fact receive. On those

averments, the claim sits more easily on the "what a third party would have done" or "loss

of a chance" side of the line rather than in the first limb described by Lord Briggs, being a

scenario where the loss is dependent on what the pursuer would have done. Specifically,

her loss is essentially predicated on what either an insurer or the court would have done,

rather than depending more on what she would or would not have done. It is tempting to

regard the "dividing line" described in Perry as a bright and immutable one. Such would

not reflect the reality of the factual background to many litigations that are often less than

binary. One might have a scenario where both limbs of the Perry test are relevant, although

it is clear from the language employed by Lord Briggs that he, at least, did not regard it as

inevitable that both limbs required to be addressed in every case.

[31]

It does not seem to me that the pleadings in the present case, looked at fairly, instruct

a case based on anything other than traditional "loss of a chance" principles. That said, the

averments summarised above, and to be found in statement 6, are sufficient, for the

purposes of proof, to lay the ground for the proposition that competent advice - meaning

that the offer made in settlement was insufficient having regard to the chances of

establishing breach of duty and the nature of the injuries suffered - would have been

accepted by the pursuer.

[32]

Separately, the defender is critical of the use of the phrase "it is likely" on more than

one occasion, in the pleadings setting out the chance that has been lost. There is no doubt

that such language is more readily associated with an approach based on a balance of

probabilities test. However, Mr Di Rollo was explicit in his submissions that the pursuer is

squarely in the "second limb" of the Allied Maples/Perry test and, as indicated above, that

submission is consistent with a fair reading of the whole of the pleadings. Therefore the

linguistic infelicity identified, though perhaps unfortunate, would not be sufficient on its

own to withhold the case from proof.

[33]

In conclusion, in a case such as this one, based squarely on the loss of a chance to

secure a better result, assuming the pursuer can satisfy the court that her loss had a tangible

value, then it will be for the court to assess what that value might be (Yeoman, Kyle).

However, the requirements of pleading such a case, assuming there are the requisite

averments linking breach of duty and loss, are not onerous. A counterfactual set of

averments is not a pre-requisite in every case (Perry, Darknell-King) either as a matter of

relevancy or fair notice. The defenders seek to suggest that the criticisms made in the

present case are conceptually different from those made in Kyle or Darknell-King. I am

unable to discern a meaningful difference between the criticisms made of the pleadings in

the latter case in particular, and as recorded by the Lord Ordinary, and those made of the

pleadings in the present case. In any event the opinion of the court in Kyle is binding in this

case, as it was in Darknell-King.

Conclusion and disposal

[34]

The pleadings in the present case meet the test set out in Kyle and are thus adequate

to allow a the pursuer a proof of her averments. A Proof before Answer was sought by the

pursuer. Accordingly I shall repel the second plea-in-law for the defenders, and quoad ultra

allow a Proof before Answer, reserving all questions of expenses meantime.

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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Amie McCann against Harper Macleod (Court of Session) [2025] CSOH 27 (11 March 2025) URL: http://www.bailii.org/scot/cases/ScotCS/2025/2025csoh27.html Cite as: [2025] CSOH 27

Scottish Court of Session Decisions