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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Kyle v. P & J Stormonth Darling [1992] ScotCS CSIH_6 (19 August 1992)
URL: http://www.bailii.org/scot/cases/ScotCS/1992/1993_SC_57.html
Cite as: 1994 SLT 191, 1993 SCLR 18, 1992 SC 533, 1993 SC 57, [1992] ScotCS CSIH_6
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19 August 1992
| KYLE |
| v. |
| P & J STORMONTH DARLING WS |
At advising, on 10th July 1991, the Lord Ordinary allowed a proof before answer.
In claiming that this loss and damage was caused through fault and negligence on the part of the defenders, the pursuer avers inter alia that a solicitor of ordinary competence would have complied with the provisions of Rule of Court 269, or would have instructed Edinburgh agents to comply with those provisions. A parallel case is made alleging breach of contract. The defenders admit that they failed to exercise reasonable care, and that they were in breach of contract, in respect that they failed to comply with rule 269. They do not however accept that the pursuer has sustained any loss or damage as a consequence of such failure. Indeed, it was contended that the pursuer had no relevant averments of loss and damage caused by fault or breach of contract. The pursuer had offered to agree to a proof before answer, but on behalf of the defenders it was submitted that I should sustain their plea to the relevancy of the action at procedure roll, and dismiss the action accordingly.
The pursuer makes a number of averments which relate to his prospects of success in his appeal to the Court of Session. He avers that the defenders were advised by counsel that he had a reasonable prospect of successfully appealing the sheriff principal's interlocutor, and this is followed by an averment that a copy of that opinion is produced and referred to for its whole terms, "which are held as incorporated herein brevitatis causa". No copy of that opinion had been produced, and at the outset of the procedure roll discussion, its purported incorporation in the pleadings was accordingly of no effect. A copy was subsequently produced, and I shall return in due course to the effect of this upon the pursuer's pleadings. In a subsequent passage, the pursuer positively avers that the appeal "had a reasonable prospect of success", coupled with a reference to counsel's opinion. In addition to founding upon the prospect of success in the appeal, the pursuer's pleadings deal with the hypothesis that the appeal had no reasonable prospects of success. The pursuer calls upon the defenders to explain why, in that event, they did not so inform him, why they marked an appeal on his behalf, and why they applied for legal aid on his behalf for the purpose of the appeal. He goes on to aver that once he had been awarded legal aid for the appeal, and Mr Harvey (as he avers) had been refused legal aid for the appeal, "there was a reasonable prospect that the action could have been settled by compromise". That prospect was lost once the appeal was held to have been abandoned. One is thus concerned not merely with the possibility that the pursuer might have won his appeal against the sheriff principal's interlocutor, but also with the alternative possibility that the full consequences of that interlocutor might have been averted by some compromise with Mr Harvey, settling the action without the appeal having to be pressed to a conclusion.
A separate and rather minor issue in relation to damages was raised by certain amendments made on behalf of the pursuer at the outset of the procedure roll hearing. Averments were added to the effect that the defenders did not lodge the legal aid certificate in relation to the proceedings before the sheriff, that a solicitor of ordinary competence would have lodged that legal aid certificate, and that because this legal aid certificate was not lodged timeously, the pursuer cannot secure any modification of his liability for expenses (which I understand to mean the expenses of that stage of proceedings) as an assisted person. I shall return to that specific matter after dealing with the main issue between the parties.
It is undisputed that a pursuer must prove his case on a balance of probabilities. So far as breach of duty is concerned, the present pursuer is relieved of this requirement by the defenders' admissions. But proof of injuria is of no avail, unless there is also proof of damnum. I did not understand it to be disputed that damnum must be proved on a balance of probabilities. Equally, however, counsel for the defenders accepted that while a pursuer must prove that the injuria had, on a balance of probabilities, caused him damnum or loss, that damnum or loss might itself be the loss of a "chance" or "opportunity" of obtaining a benefit or indeed mitigating some loss or injury which would otherwise have occurred. Once these concepts of "chance" or "opportunity" are introduced, one is moving from the world of probabilities, and of natural and reasonable inferences, into the less certain world of mere possibilities, and issues can plainly arise as to what it is that a pursuer must establish on a balance of probabilities, what it means to have lost (probably) a chance or opportunity, and how that lost chance or opportunity is to be translated into damages, since, ex hypothesi, the accrual of any benefit to which it might have led is to be treated as perhaps less than probable.
It was not suggested that anything turns upon the fact that the pursuer's appeal was an attempt to overturn, or at least mitigate, a liability, rather than an attempt to obtain a positive benefit. In my opinion, the case is indeed closely analogous to those in which a person seeks damages from a solicitor whose negligence has resulted in a claim not being prosecuted. If a solicitor's negligent act or omission has admittedly, or on a balance of probabilities, prevented his client from proceeding further in a litigation with a third party, what has been lost as a result of the negligence can be described as the loss of a chance or opportunity to obtain a benefit (or mitigate a loss) either by obtaining a favourable decree, or by reaching a favourable compromise. In such a situation, is it necessary for the client to prove on a balance of probabilities that he would have achieved a favourable result in one form or the other? Or is it enough for him to say that the negligence has caused him the loss of a chance or opportunity to seek such a favourable outcome?
In the present case, it is contended on behalf of the defenders that the pursuer would have to aver and prove that there would probably have been a favourable outcome to the appeal, whether by decree or by compromise. By averring only a "reasonable prospect" of success or compromise, the pursuer was offering to prove less than he had to prove, and his case was therefore irrelevant. For the pursuer, the contention was that the loss lay in being deprived of the chance of proceeding with the appeal, and that provided such an appeal had a reasonable prospect of success (and not merely a "blackmail" value), this loss of chance or opportunity was itself to be seen as something of value, so that damnum for which damages were due was to be seen, and valued, as the loss of that chance or opportunity. On this argument, it would be wrong to go further and attempt to judge what the probable outcome of litigation would have been. To do so would not merely be to embark on a somewhat dubious exercise, but would amount to rejecting the proposition that loss of a valuable chance or opportunity was damnum injuria datum,replacing that correct view of the law by an insistence that the damnum must be found in the loss of a favourable outcome to the litigation.
Counsel for the defenders not merely rejected these propositions, but contended that even if they were right in principle, the pursuer's pleadings remained irrelevant: if the averment of "reasonable prospects" was necessary, as the pursuer apparently acknowledged, primary averments would be required as to the issues involved in the appeal, from which an inference of reasonable prospects might be drawn. Even the reasonable prospect of compromise would depend on there being some slim prospect of success, which again would be a matter of inference from primary averments. There were no primary averments, and the case was thus irrelevant. Furthermore, while the pursuer claimed to be seeking damages for loss of a chance or opportunity, the averments as to damages were not a valuation of the loss of chance or opportunity. They were of the type which would be appropriate if the pursuer had averred probable success in the appeal, by success or by compromise, consisting of the amount which the pursuer has become liable to pay to Mr Harvey, together with interest and expenses and consequential matters such as diligence and losses alleged to flow from execution of diligence. If the damages sought were to represent the loss of a chance or opportunity, they could not take this form, and the case was thus irrelevant on this basis also.
There are plainly countless situations in which a negligent act or omission may be said to have caused the loss of some chance or opportunity. In considering the case law, it is convenient to start with one of the cases relied upon by counsel for the defenders, in the field of medical negligence: Kenyan v. Bell 1953 S.C. 125. It was averred that as a result of the alleged negligence, a child had not been given certain treatment for an injured eye which "would have made the saving of the eye a certainty or alternatively…would have materially increased the chance of saving the eye". Lord Guthrie held that the loss of a chance of saving the eye was not of itself a matter which would entitle the pursuer to damages, but allowed a proof before answer upon the basis that it might be that the chance of saving the eye by proper treatment was so material that the natural and reasonable inference was that its loss was due to the absence of such treatment. As regards the standard of proof required, his Lordship applied the ordinary rules as to balance of probabilities, and natural and reasonable inferences. More significantly for present purposes, in considering the question of damnum, his Lordship proceeded upon the basis that the important damage suffered by the child was the loss of the eye, and identified a confusion in the pursuer's case between injuriaand damnum. "The fault charged can be stated as being failure to give the child the opportunity of having her eye preserved by proper treatment, but, unless the eye would have been saved by such treatment, the child suffered no damnum." Loss of opportunity was thus part of the causal sequence which might, or might not, lead to damnum. But the damnum (if any) would lie not in the loss of that opportunity, but in the loss of the eye. Whether or not the injuria can be said to be complete at the stage when the opportunity is lost, Kenyon is a case in which negligence can be seen as having caused loss of opportunity, but there was no claim for loss of opportunity. The claim would only succeed if it could be shown, by ordinary tests of probability and natural inference, that the loss of the opportunity resulted in the loss of the eye. In relation to damnum, talk of lost opportunity or chance is thus something of a red herring. Proof by probabilities is required not merely of the link between the negligence and the lost chance, but of the link between that lost chance and eventual damnum. The only real question is whether that eventual damnum was probably caused by the negligence.
I am satisfied that in general an element of lost opportunity will have this merely intermediate status, and that a claim will usually be for some subsequent loss, which must be proved by the ordinary standard of probabilities. I did not understand counsel for the pursuer to suggest that Kenyon was wrongly decided, or indeed that lost chances or opportunities will often, or normally, have this merely intermediate status. But even if Kenyon provides a useful starting point, as showing the general position, the real issue is whether it is applicable to cases such as the present, where the opportunity which has been lost is the opportunity to proceed with litigation.
Is the loss of a chance to proceed with litigation different in some way from these "normal" cases? Counsel for the defenders contended that it was not, and relied upon Yeoman v. Ferries 1967 S.C. 255. That case proceeded on the basis of a solicitor's negligence in failing to raise an action timeously. The pleadings do not proceed upon the basis that the damnum was to be found in the loss of the chance to press the claim. What the pursuer claimed to have lost was the sum of damages which he would have recovered in the original action, and while plainly the matter would be one involving inferences, he averred that owing to the defender's negligence, he had lost the amount of damages which he believed and averred he would have recovered from his employer. The defender's position was that the pursuer would have failed in that action against the employer, and that consequently he had suffered no loss. In the pleadings, no distinction was drawn between recovering damages by decree, and recovering a sum by way of settlement and the latter question does not appear to have been canvassed in evidence at proof. The Lord Ordinary concluded, on balance, that a jury would have given the pursuer a verdict, and moreover, applying judicial knowledge, was of the opinion that the employer would have made a more than derisory offer. The test which he applied was evidently the test of probability. The case is perhaps rather special, in the way that the question of a possible settlement was raised and dealt with, and there is a further specialty in relation to the pursuer's prospects at jury trial, as opposed to proof. But the finding in favour of the pursuer appears to have proceeded upon a consideration of what the pursuer would probably have succeeded in obtaining (one way or another) if the original action had not been time barred. That would be consistent with the approach adopted by Lord Guthrie in Kenyon, and counsel for the present defender contended that that was indeed both correct in principle, and the true ratio of Yeoman.
I am not at all sure that I fully understand the ratio of Yeoman. It certainly makes it clear that a relevant case of loss can be made not merely upon the basis of what would have been obtained by decree, but also or alternatively upon the basis of what would have been obtained by way of settlement. In itself, that does not appear to me to necessitate any departure from the approach adopted in Kenyon, of looking to eventual loss rather than the prior loss of opportunity. Equally, the prospects of success by way of settlement, like those of success by way of decree, can be judged in terms of probabilities, and in Yeoman that appears to be what was done. Again, it is clear from Yeoman, and the earlier case of Robertson v. Bannigan 1965 S.C. 20, that the court in the professional negligence action must not merely say what it would have done in the original action. But to say that is merely to say that if a pursuer has to prove what would probably have happened in the previous action, one must be careful to stick to that question. In Yeoman, the pursuer succeeded in establishing a causal connection between the negligence of his solicitor and a loss which was not merely a loss of opportunity, but was a pecuniary loss, established on a balance of probabilities. The contention for the present defenders is that this was indeed what he had to do, in order to succeed in his action against the solicitors.
On behalf of the present pursuer, it was accepted that the pursuer in Yeoman had indeed proved probable pecuniary loss. But it was submitted that upon a correct analysis of the case, the damage done by the negligence lay not in the eventual pecuniary loss, but in the deprivation (as the Lord Ordinary put it) "of a right, the right legitimately to press a claim for damages". Once that had been established, on a balance of probabilities, one was no longer concerned with proving damnum on a balance of probabilities. One would be concerned merely with a question of valuation: the Lord Ordinary had correctly seen himself as considering "the valuation of the pursuer's prospects of success against his employers", and in considering the possibility of settlement, had approached that not merely as an alternative form of damnum, but as showing that "it may well be that the pursuer's claim before it became time-barred had some real value on that account". The court had correctly considered the question of whether the right to press a claim for damages "had no value", and had not merely held that settlement was probable, but had held that the fact that it is very usual for reparation actions to be settled "is a matter of real and definable value to an intending pursuer". Moreover, the court had considered the English cases of Kitchen v. R.A.F. Association [1958] 1 W.L.R. 563 and Cook v. Swinfen [1967] 1 W.L.R. 457. The basis of Kitchen was that the plaintiff had lost a right which could be valued, and in Cook, the damages were regarded as being for the loss of the chance of a more favourable outcome in the original case. The ratio in Yeoman was to be found in the Lord Ordinary's comment that the decision in Cook re-emphasised "that one must look to the value of a lost chance to make a claim". If a claim would probably have succeeded, the value to be put upon its loss was indeed the amount which would probably have been obtained if the claim had been pressed. But even if the best that could be said was that the claim had a real prospect of succeeding, by decree or by settlement, the court would be entitled to put a value upon the loss of the claim.
I do not think it useful to go into the cases of Kitchen and Cook in more detail. I am not sure that it is always clear in the reports of these cases just what requires proof in terms of probabilities, and what is a matter of possibilities and valuation. I am, however, satisfied that a distinction can be drawn between cases such as Kenyon, where some opportunity or chance has been lost which is not itself a matter of legal right, and cases such as Yeoman, where the lost opportunity or chance is itself a matter of legal right. In the former category, it will not be appropriate to value the lost opportunity or chance, and in order to prove a completed wrong, it will be necessary to show, on a balance of probabilities, some loss flowing from the loss of the opportunity. In the latter category, however, where there has been deprivation of a legal right, that will in itself constitute a completed wrong, and one will be entitled, as a matter of valuation, to take into consideration all reasonable prospects of success, if they exceed nuisance value, even if they fall short of probability. In Siraj-Eldin v. Campbell, Middleton, Burness & Dickson 1988 S.C. 204, this view of Yeoman,and of the law, appears to me to find support. In saying that "the proper approach of a court in an action such as this is merely to see whether upon the evidence it appeared that there was a reasonable prospect", it is true that the court was merely quoting one side's submissions, and that the action was of a somewhat different kind from the present one. Nonetheless, that submission was made upon the basis of Yeoman, and I am persuaded that it correctly reflects the law in those cases where negligence has caused deprivation not merely of some general opportunity, but of what may be called an opportunity, but is itself a legal right.
In principle, therefore, I would regard the present pursuer's averments of "real prospects" as sufficient in law. Nonetheless, I see considerable force in the submission for the defenders that the pleadings contain no sufficient specification of the basis upon which it is claimed that there were these "real prospects". I have, however, come to the view that as the issues at appeal would have been issues of law, and as both the decisions appealed against and counsel's opinion will be available, it would be wrong to refuse proof at this stage on the basis of inadequate specification. I have also come to the view that the averments of damage, which are not expressed in terms of a valuation of lost opportunity, but appear to assume loss of an appeal which would have succeeded, are nonetheless sufficient to justify going to proof, even although a substantial discount might be appropriate if the only real prospect of success were held to lie in some not particularly favourable settlement.
Since I am satisfied that proof before answer is appropriate upon the major issue in the case, I do not think it appropriate to go into the minor issue (concerning legal aid) in any detail. On the whole matter, I do not think it appropriate to sustain the defenders' pleas to any extent at this stage, and I allow a proof before answer upon the whole pleadings.
The defenders reclaimed.
The grounds of appeal were inter alia in the following terms:
"(1) The Lord Ordinary erred in law in holding that the loss of a legal right per se constituted a ‘completed wrong’ irrespective of the prospects of recovering damages by decree or compromise. (2) The Lord Ordinary erred in law in holding to be suitable for inquiry the pursuer's averments which fail to specify, or in any event, to give sufficient specification of (a) the grounds upon which the appeal possessed any real prospects of success or (b)any offer which the pursuer was prepared to make which the other party to the litigation would probably have accepted."
The cause called before an Extra Division, comprising Lord McCluskey, Lord Brand and Lord Weir, for a hearing.
At advising, on 19th August 1992, the opinion of the court was delivered by Lord McCluskey.
OPINION OF THE COURT—This is a reclaiming motion against an interlocutor of the Lord Ordinary dated 10th July 1991 reserving consideration of the defenders' pleas-in-law and allowing to parties a proof before answer of their respective averments on record. It is the defenders who have reclaimed against the allowance of a proof before answer. They now invite the court to grant the reclaiming motion, to sustain the first plea-in-law for the defenders, and to dismiss the action. The first plea-in-law for the defenders is a general plea in the following terms:
"(1) The pursuer's averments being irrelevant et separatim being lacking in specification, the action should be dismissed."
In his opinion dated 10th July 1991 the Lord Ordinary has fairly summarised the averments of parties, has narrated all arguments presented to him and has considered the authorities cited to him. It is unnecessary to repeat the Lord Ordinary's summary or narration here and we simply refer to them. It is enough to say that the pursuer and respondent had been the defender in a litigation brought against him in the sheriff court by a Mr Harvey. In June 1984 in that action the sheriff pronounced decree against the respondent for £3,409.02 together with interest and expenses. The respondent appealed to the sheriff principal who adhered to the interlocutor of the sheriff. After the respondent had been advised by counsel that he had a reasonable prospect of successfully appealing to the Court of Session against the sheriff principal's interlocutor, an appeal was marked by the respondent's solicitors, the reclaimers. The respondent was granted legal aid for the appeal. Mr Harvey, however, was refused legal aid to resist the appeal. The respondent's solicitors, the present reclaimers, then negligently failed to comply with peremptory requirements of the Rules of Court relating to the prosecution of that appeal, with the result that the appeal against the sheriff court interlocutors was held to be abandoned.
There was no dispute before the Lord Ordinary that the pursuer and respondent required to prove his case on a balance of probabilities. The Lord Ordinary records the concession—which is also plain on the face of the pleadings—that the alleged breach of duty is conceded by the defenders and reclaimers. He adds:
"But proof of injuria is of no avail, unless there is also proof of damnum."
He further records:
"Equally, however, counsel for the defenders accepted that while a pursuer must prove that injuria had, on a balance of probabilities, caused him damnum or loss, that damnum or loss might itself be the loss of a ‘chance’ or ‘opportunity’ of obtaining a benefit or indeed mitigating some loss or injury which would otherwise have occurred."
He expressed the opinion that the present case, in which the respondent (as the defender in the sheriff court action) had, through the negligence of his agents, lost the opportunity to proceed with an appeal in the Court of Session, was closely analogous to those cases in which a person seeks damages from a solicitor whose negligence has resulted in that person's claim not being prosecuted. Before us it was accepted by both counsel that the same principles applied to both types of case. The basic contentions before the Lord Ordinary were recorded by him in the following terms:
"In the present case, it is contended on behalf of the defenders that the pursuer would have to aver and prove that there would probably have been a favourable outcome to the appeal, whether by decree or by compromise. By averring only a ‘reasonable prospect’ of success or compromise, the pursuer was offering to prove less than he had to prove, and his case was therefore irrelevant. For the pursuer, the contention was that the loss lay in being deprived of the chance of proceeding with the appeal, and that provided such an appeal had a reasonable prospect of success (and not merely a ‘blackmail’ value), this loss of chance or opportunity was itself to be seen as something of value, so that the damnum for which damages were due was to be seen, and valued, as the loss of that chance or opportunity. On this argument, it would be wrong to go further and attempt to judge what the probable outcome of litigation would have been. To do so would not merely be to embark on a somewhat dubious exercise, but would amount to rejecting the proposition that loss of a valuable chance or opportunity was damnum injuria datum, replacing that correct view of the law by an insistence that the damnum must be found in the loss of a favourable outcome to the litigation.
"Counsel for the defenders not merely rejected these propositions, but contended that even if they were right in principle, the pursuer's pleadings remained irrelevant."
The Lord Ordinary, after a consideration of all the authorities quoted to him, was satisfied that a distinction fell to be drawn between cases "such as Kenyon v. Bell 1953 S.C. 125, where some opportunity or chance has been lost which is not itself a matter of legal right", and cases such as Yeoman v. Ferries 1967 S.C. 255 "where the lost opportunity or chance was itself a matter of legal right". In the former category of case, his view was that it would not be appropriate to value the lost opportunity or chance and that in order to prove a completed wrong, it would be necessary to show loss flowing from the loss of the opportunity. He added:
"In the latter category, however, where there has been deprivation of a legal right, that will in itself constitute a completed wrong, and one will be entitled, as a matter of valuation, to take into consideration all reasonable prospects of success, if they exceed nuisance value, even if they fall short of probability."
He found support for that view of the effect of Yeomanin the case of Siraj-Eldin v. Campbell, Middleton, Burness & Dickson 1988 S.C. 204. In conclusion, the Lord Ordinary accepted that, on the general point of relevancy, the view of Lord Avonside in Yeoman correctly reflected the law in those cases where the negligence of a solicitor has caused a litigant or potential litigant to lose the opportunity to assert his legal right; in essence, it was that the proper approach of a court in such an action was to see whether upon the evidence it appeared that what had been lost was a reasonable prospect of making good the claim, whether in whole or in part. He concluded in the following terms:
"In principle, therefore, I would regard the present pursuer's averments of ‘real prospects’ as sufficient in law. Nonetheless, I see considerable force in the submission for the defenders that the pleadings contain no sufficient specification of the basis upon which it is claimed that there were these ‘real prospects’. I have, however, come to the view that as the issues at appeal would have been issues of law, and as both the decisions appealed against and counsel's opinion will be available, it would be wrong to refuse proof at this stage on the basis of inadequate specification. I have also come to the view that the averments of damage, which are not expressed in terms of a valuation of lost opportunity, but appear to assume loss of an appeal which would have succeeded, are nonetheless sufficient to justify going to proof, even although a substantial discount might be appropriate if the only real prospect of success were held to lie in some not particularly favourable settlement."
The two grounds of appeal which were argued before us are in the following terms: [their Lordships quoted the terms of the grounds as set out supra and continued:] Counsel for the reclaimers intimated that if the court were to be against him on the first and second grounds of appeal he would not argue the third at this stage.
The argument submitted to us by the reclaimers was that the Lord Ordinary fell into error in the statement quoted earlier, namely, "where there has been deprivation of a legal right, that will in itself constitute a completed wrong". It was not submitted that that statement, even if erroneous, was itself fatal to the correctness of the decision which the Lord Ordinary made, a decision to allow a proof before answer. What was submitted, however, was that, because the Lord Ordinary had formed an incorrect legal view, expressed in these terms, that had led him to take an unduly indulgent view of the pursuer's pleadings, and of the pursuer's prospects of success, whether by winning the appeal or by achieving a settlement on a compromise basis. Thus, in effect, ground of appeal no. 1 was merely an introduction to ground of appeal no. 2. The pursuer's pleadings lacked the averments which, on a correct view of the law, were essential. If the actual pleadings were read in the light of a correct understanding of the law, then the lack of sufficient specification became plain and the correct course was to uphold the defenders' first plea-in-law.
In reply, counsel for the pursuer and respondent emphasised that, even if the Lord Ordinary was not entirely correct in the way he had expressed the legal position in the passage quoted, the substance of the argument now advanced was simply that the averments made by the pursuer and respondent were so lacking in specification that the case was irrelevant, essentially for want of fair notice of the factual basis of the claim. He cited Lord Normand's dictum in Jamieson v. Jamieson 1952 S.C. (H.L.) 44 at p. 50:
"The true proposition is that an action will not be dismissed as irrelevant unless it must necessarily fail even if all the pursuer's averments are proved."
Accepting that adequate specification was necessary, he submitted that the true test of specification was fair notice. What were the requirements of fair notice would vary from case to case. This was a case in which the reclaimers were the respondent's solicitors during the litigation; they agreed to act as his solicitors in an appeal to the Court of Session; they took counsel's opinion on the prospects of success, an opinion which was favourable to the prospects of success; the defenders applied for and obtained legal aid for the conduct of the appeal, and in so applying must have signed the statutory memorandum. Thus this was a case where the reclaimers were fully informed at all stages of the whole background of the sheriff court litigation, the appeals and the prospects of success in the Court of Session. Indeed they were at least as well informed as the pursuer and respondent. Furthermore, it was plain that any judgment that required to be made as to the hypothetical prospects of success would depend upon what were essentially arguments as to matters of law and they could be judged in the light of counsel's opinion which was incorporated in the pleadings brevitatis causa and by reference to the interlocutors of the sheriff and sheriff principal, which were part of the process in the present actions. In the whole circumstances there was no room for any legitimate complaint that the pursuer in this action was keeping the defenders and reclaimers in the dark. Counsel referred us to the observations of Lord President Cooper in Macdonald v. Glasgow Western Hospitals 1954 S.C. 453 at p. 465 where his Lordship said:
"The plea of lack of specification finds its proper application in a case where the defender does not know the case to be made against him and objects to being taken by surprise at the proof."
The pursuer's pleadings passed the test of fair notice applicable to a litigation arising out of the circumstances averred on record. The correct view of the law applicable to the general reclaiming argument was to be found in the opinion of Lord Avonside in Yeoman and in the opinion of the court delivered by the Lord Justice-Clerk in Robert Haggarty v. Ross Harper & Murphy (1991) G.W.D. 30–1826. Reference was made to the observations in the latter opinion to the effect that "Before his [the pursuer's] case could be held to be relevant it would be necessary for the pursuer to show that he would have had at least some prospect of success in the appeal to the Court of Session" (emphasis added). He also referred to the later observation in that opinion that it would have been open to the pursuer to make out a relevant case "if he had been able to aver that the appeal to the Court of Session which was not taken had some likelihood of success" (emphasis added). Counsel drew our attention to English authorities in addition to those referred to in the Lord Ordinary's opinion. In particular we were referred to Allen v. Sir Alfred McAlpine & Sons Ltd. [1968] 2 Q.B. 229 and Heywood v. Welters [1976] QB 446.
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.
In Kenyan, the loss, injury and damage sustained by the child consisted of the loss of an eye, which had had to be removed on 10th July 1951 by medical operation. The negligent act was said to consist in the negligent failure of a junior hospital doctor, on 15th March 1951, to prescribe treatment for the injured eye which would have avoided the need to remove the eye four months later. The parties were at issue on the causal link between the alleged negligent act or omission on the one hand and the necessity for the operation to remove the eye on the other. What Lord Guthrie decided was that if the pursuer established the causal link (as well as the loss and the negligence), then the child would be entitled to recover damages from the negligent doctor in respect of the loss of the eye; if, however, that causal link was not established then the child would not be entitled to recover any damages from the negligent doctor. That decision reflected the fact that the child's loss consisted of the removal of the eye, not just of the chance or opportunity of treatment which might have avoided the need to remove the eye surgically. Of course, the court would still have to place a monetary value on the loss suffered; that monetary value would become the damages awarded as monetary reparation for the loss, injury and damage sustained.
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 didhave 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.
In our opinion, this is exactly the analysis that was applied by Lord Avonside in Yeoman. In that case Lord Avonside concluded that the pursuer, whose claim against his employers had been lost through the negligence of his solicitor, had failed, in the proof heard by Lord Avonside, to establish liability on the part of the employer. Nonetheless he considered that in a question with the negligent solicitor the court had to look to "the value of a lost chance to make a claim" (1967 S.C. 255 at p. 263). We do not consider that his Lordship is there using the word "chance" in any sense other than as a synonym for "opportunity". In a case of this kind the word "prospect" would reflect the same idea. Kenyon is an entirely different kind of case. In that case a child had not been given certain treatment for a cut on her eye and the issue was whether or not the giving of that treatment would, on a balance of probabilities, have materially increased the chance of saving the eye. In such a case it is plain that, in order to succeed, the person who has suffered the physical injury must show, on a balance of probabilities, that had the step desiderated been taken he would not have sustained the physical injury. If he succeeds in so proving he is then entitled to damages which reflect the whole physical and consequential loss that he has sustained. If he fails to establish on the balance of probabilities that the step desiderated would have prevented his suffering the physical injury then he obtains nothing. 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. But it is rather unlikely that the true measure of the loss resulting from the negligence of the solicitor will be exactly equal to the value of the original loss sustained by the litigant, being the loss giving rise to the original claim in the litigation. There may be cases in which the litigant, suing his negligent solicitor, can demonstrate that the claim against the original defender would have been bound to succeed; in that event the measure of his claim against the solicitor may be close to or identical to the measure of his lost claim against the original wrongdoer. Equally, there may be cases in which the prospects of success in the original claim were so remote that the court could confidently conclude that the claim in the litigation was worthless and that the loss of the right to pursue it was a nugatory loss. In between there may be a whole spectrum of possibilities. It may be that in a case such as the present the court could be readily persuaded to have regard to the everyday fact that legal disputes are compromised at some stage (often at the last minute) between their initiation and their determination by the court. There are elaborate and frequently used procedures for compromising claims in whole or in part. It follows, therefore, that the pursuer in the present case is right to claim damages for what he offers to prove he has lost, namely the value of the lost right to proceed with his appeal in the original litigation. The pursuer will fail unless it is established that the lost right had an ascertainable, measurable, non-negligible value; but he is under no obligation, as a precondition of obtaining an award against the present defenders, to show that he would probably have succeeded in the original litigation.
In our view, therefore, the conclusion which the Lord Ordinary reached was the correct one, albeit there may be some difficulty about the precise way it was expressed in the passage criticised by counsel for the reclaimers. But it is not necessary for us to come to any concluded view on that matter. The Lord Ordinary was right to allow a proof before answer.
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. We express no view as to other elements of possible loss as no argument was addressed to us about them.
In the whole circumstances we consider that the Lord Ordinary arrived at the correct conclusion. The reclaiming motion is refused.
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