Scottish Court of Session Decisions

The pursuer has appealed against the interlocutor of the sheriff principal dated 4 October 1995 in which he refused his appeal against the dismissal of the action by the sheriff on 22 November 1994. The hearing of the appeal to this court has been delayed by a number of factors, including the illness of the pursuer.

In this action the pursuer sues the defender for damages on the ground of professional negligence. At the outset it may be noted that both the sheriff and the sheriff principal indicated that, quite apart from any other reason, they would have considered that the action fell to be dismissed in view of the decision in Batchelor v. Pattison & Mackersy (1876) 3 R. 914. In his grounds of appeal the pursuer intimated that he intended to submit that that decision was no longer good law. However, prior to the hearing of this appeal the defender formally intimated that, for the purposes of the present action, he conceded that he was not, and would not advance any argument that he was, entitled to a blanket immunity under reference to that decision. In the result this court heard no argument in regard to the soundness or application of the decision in Batchelor, and the discussion was directed to other matters on which the appeal depended.

It is convenient to set out at this stage an outline of the pursuer's factual averments. In 1976 he purchased a basement flat at 38 Roseangle, Dundee from Kenneth Alan Harper. Having consulted solicitors in 1982 about the condition of the flat he raised an action of damages against Mr. Harper in the Court of Session. In that connection he obtained a report on the flat by an architect. In January 1987 the pursuer had a consultation with the defender who pointed out that no claim had so far been made in respect of damage caused by the penetration of water through the porch roof. Thereafter, in the light of an updated report from the architect, the defender revised a minute of amendment to increase the sum sued for to £175,000 plus VAT.

On 31 August 1987 the pursuer's solicitors were notified by Mr. Harper's solicitors that the latter was willing to settle the action on the basis that he would purchase the flat on the footing of a transaction between willing buyer and willing seller in respect of a property free of defect Mr. Harper claimed that free of defect, according to the valuation obtained on his behalf, the flat was worth £25,000. The pursuer informed his solicitor that this was an inaccurate valuation and instructed him to obtain an independent valuation from a surveyor. The latter concluded that the flat, free of defect, was worth £36,000, but that on the open market it would sell for more than that. The pursuer's solicitor took the advice of the defender on Mr. Harper's offer. In an opinion dated 23 September 1987 the defender, inter alia, recommended acceptance of an offer to settle the action by the purchase of the flat by Mr. Harper or his nominee at the true open market value free from defect, together with payment of judicial expenses. The defender also advised that, if the price proposed by Mr. Harper could not be improved upon by negotiation, it should be accepted. In subsequent negotiations with Mr. Harper's solicitor the pursuer's solicitor was unable to improve upon the price proposed by Mr. Harper. The pursuer arranged to have a meeting with his solicitor on 19 November 1987. In preparation for that meeting he delivered to him a letter dated 17 November in which, for a number of reasons, he expressed concern in regard to the basis of the defender's opinion. However, the solicitor refused to discuss these points, and brought the meeting to an end after a few minutes. He informed the pursuer that he intended to cease acting for him.

At that time the proof had been set down to proceed on 5 January 1988. The pursuer had great difficulty in finding another solicitor to act for him. On 10 December 1987 he had an interview with a solicitor in another firm and signed a mandate for the transfer of the legal aid certificate. The certificate was transferred on 29 December 1987.

On 30 December 1987 a solicitor of that firm (to whom we will refer as the "new solicitor") telephoned the defender and requested him to appear in court on 5 January 1988 to seek the postponement of the proof in order to give the new solicitor time to read and consider the papers. The defender refused to do so on the ground that the pursuer had refused to follow his advice and because, in his opinion, the case against Mr. Harper was "evidentially hopeless". He informed the new solicitor that he would only be prepared to appear if no offer was available.

The pursuer avers that as a consequence of the defender's refusal to appear in court on 5 January 1988 to seek a postponement, he was forced to settle the action for £25,000. According to his pleadings, on 3 December 1987 Mr. Harper had lodged a tender in court in respect of the sum of £25,000. These averments might suggest that the action had been settled in return for the payment of that sum together with judicial expenses. However, during the course of the discussion it appeared that the settlement was on the basis that the flat was re-conveyed by the pursuer to Mr. Harper in return for the pursuer receiving the sum of £25,000 and judicial expenses.

On 23 December 1990 the pursuer made a complaint to the Dean of Faculty alleging professional misconduct by the defender. In a letter to the Dean dated 16 January 1991 the defender conceded that Mr. Harper would have been identified by the court as the developer, and that on the balance of probabilities the pursuer would have succeeded in the action. In a further letter dated 5 March 1991 he conceded that there was a reasonable likelihood that all the difficulties would have been overcome. The Dean put the pursuer's complaint before the lay member of the Faculty's Investigating Committee. He concluded that the pursuer's doubt about the defender's opinion "might have some force"; and that the defender had not given sufficient attention to the pursuer's affairs when he refused to appear in court on 5 January 1988. In a letter dated 19 March 1992 the Dean upheld the finding of professional misconduct.

The pursuer sues for £150,000, which evidently represents the difference between the amended sum sued for in his action against Mr. Harper (£175,000) and the sum of £25,000 which he received in connection with the settlement of that action. Failing that, according to Article 19 of the Condescendence, he seeks payment of £44,500 which represents the difference between £25,000 and the current value of the flat free of defect, together with solatium of £5,000.

In his appeal to this court the appellant represented himself, as he had done before the sheriff and the sheriff principal.

It can be seen from Article 16 that the pursuer avers that no advocate of ordinary competence exercising care and skill would have recommended acceptance of an offer to purchase the pursuer's property. It is evident that this averment relates to the defender's opinion dated 23 September 1997. In support of that averment the pursuer's pleadings set out a number of criticisms which he repeated during the course of the discussion. Since the terms of that opinion do not form part of the pleadings we cannot comment on those criticisms. However, we note that the pursuer submitted to us that he had not agreed that there was a difficulty in his recovering the cost of repair where that exceeded the value of the property when free from defect. According to him the answer was that a wrongdoer took the risk of inflation in the cost of repair. He should not have been put into the position of being required to sell his house in order to obtain damages.

While the pursuer's position was that the advice given by the defender in his opinion was negligent he submitted that the essence of his case was not that opinion but the conversation on 30 December 1997 between the defender and the new solicitor. Accordingly we approach the pursuer's submissions on that basis. From the pursuer's averments in Articles 16 and 17 it appears that, in regard to that conversation, his case is that the defender had a duty, first, to appear in court on 5 January 1988 to request the postponement of the proof; secondly, to consult with the pursuer and the new solicitor in order to discuss the opinion dated 23 September 1997; and thirdly, to ascertain the exact basis of Mr. Harper's offer before opining on it and recommending its acceptance. Apparently in connection with these alleged duties, he makes a number of averments in Article 16 as to what no advocate of ordinary competence exercising care and skill would have done. He would not have refused to appear or to consult, or to rely on his opinion to justify his refusal. He would not have informed the new solicitor that the case against Mr. Harper was "evidentially hopeless" and that he would appear only if "no offer was on the table". (In argument the pursuer went further and maintained that no such advocate would have informed the solicitor that "any offer" should be accepted, but he accepted that he had no averment that the defender had stated that).

In addition the pursuer makes a number of general averments in Article 17, namely that an advocate of ordinary skill exercising reasonable care

In support of his case that the defender had a duty to appear, the pursuer submitted that the sum tendered by Mr. Harper on 3 December 1987 was not the same amount of money as the defender had advised him to accept, in respect that it was not equal to the open market value as advised by the pursuer's surveyor. It was clear that by 30 December 1987 Mr. Harper, had, as he put it, "nullified the defender's advice" by rejecting the valuation which had been provided by the pursuer's surveyor. When asked why the defender should have been aware of the amount tendered by Mr. Harper, the pursuer submitted that the defender should have found out the amount, especially as three months had passed since he had written his opinion. If he had found out the amount, he would have realised that it was not what he had advised.

The pursuer also submitted that the defender should in any event have found out about the amount tendered by Mr. Harper before expressing an opinion on the merits of his case. He could not advise "in a vacuum". When he wrote his opinion in September 1987 he did not know what the pursuer would be advised was the open market value of the flat. The advice about the pursuer's case which he had given in that opinion was negligent. There was no decision in which it had been held that a client had to sell his house in order to obtain damages. During the course of the telephone conversation he went beyond that and said that the pursuer's case was evidentially hopeless and that any offer should be accepted.

The pursuer also argued that if the defender had appeared on his behalf on 5 January 1988, it was likely that the proof would have been adjourned to a later date (although there is no averment to this effect). The defender's negligence had deprived him of the opportunity of obtaining his legal remedy i.e. the cost of repair, from Mr. Harper. The negligent advice which he gave to the new solicitor forced the pursuer to accept the offer made by Mr. Harper (again there is no averment to this effect). At a late stage of his submissions the pursuer emphasised (without averment to this effect) that he relied on the advice which the defender had given in the course of that telephone conversation. In the result the defender failed to ensure that the claim of £175,000 damages was pursued. He accepted that no attempt had been made to postpone the proof. The new solicitor, who obtained the papers in the case late in December 1987, had said that he was not in a position to proceed, and the defender had refused to appear.

The pursuer's pleadings appear to comprise two possible approaches to a claim of damages against the defender. The first might be that the pursuer was misled into settling for the repurchase of the flat when he could and should have obtained the full cost of repair in the action against Mr. Harper. In that case his loss, assuming total success, would be cost of repair less the sum which he was paid for the repurchase of the flat. The second approach might be that the pursuer could and should have obtained a higher consideration for reconveying the flat to Mr. Harper. These are entirely different ways of achieving a restitutio ad integrum.

There are a number of difficulties about the first of these approaches. It is plain from the pursuer's own pleadings that he did not accept the defender's advice which was contained in his opinion dated 23 September 1987 but sought to question it from the outset in a number of respects. Furthermore it is plain that the pursuer did not reach a settlement with Mr. Harper on the basis of his accepting the advice contained in that opinion. The pursuer himself, as we have already noted, did not seek to present his case in the present appeal by arguing that he was prejudiced through relying on the advice which the defender had given in his opinion dated 23 September 1987. His submission was that the essence of his case was contained in the telephone conversation between the defender and the new solicitor.

As regards that conversation, the pursuer's averments and arguments require to be seen in their context. The pursuer claims that the defender had a duty to find out about the offer which Mr. Harper had made on 3 December 1987. However, the new solicitor telephoned the defender in order to request him to appear in court to seek a postponement of the proof. The pursuer nowhere avers, in the course of his diffuse pleadings, that he requested him to provide advice in regard to the offer which had been made by Mr. Harper on 3 December 1987. The statement attributed to the defender that the pursuer's case was "evidentially hopeless" appears to have been a remark of the defender giving one reason why he was not prepared to entertain the request that he appear in court to seek the postponement of the proof. He was, after all, under no obligation to accept instructions, especially where the pursuer had made it plain that he questioned his advice in a number of respects. The defender does not appear to have had any continuing responsibility in regard to the case since giving his opinion and, for all he knew, he might not have been further instructed.

More fundamentally, the pursuer's approach to the content of the telephone conversation does not appear to us to provide a coherent basis for a claim. The pursuer asserts that if the defender had found out the amount offered by Mr. Harper - and, presumably, also the price given by the pursuer's surveyor - he would have realised that the pursuer had not been offered what he had advised him to accept. This appears to imply that if Mr. Harper had offered £36,000 in settlement of the action, the defender would have regarded the offer as being in accordance with his advice, and would not have been bound to appear in court to request the postponement of the proof. It is on the basis that the offer was only £25,000 that the pursuer claims that it "nullified the defender's advice". Two points may be noted. First, this appears to be completely at odds with the pursuer's claim that he should not have been forced, as he put it, to sell the flat in order to obtain damages. The pursuer appears to take the view that the ultimate duty of the defender to ensure that the action was pursued for the full amount of repair cost depended on whether the amount of an offer to settle the action on an entirely different basis was adequate. Secondly, according to the pursuer's averments, the advice which he had given in his opinion was, inter alia, that if the offer made by Mr. Harper could not be improved upon by way of negotiation, it should be accepted. In the end of the day the action was settled at that sum, along with payment of judicial expenses.

In these circumstances it appears that, on the pursuer's own averments, the defender was not under a duty to appear in order to request the postponement of the proof. The pursuer's averments, if proved, could not demonstrate that it was due to any fault on the part of the defender that the pursuer could not proceed with the proof. The remark which he made about the weakness of the pursuer's case, whether or not it was accurate, did not appear to be in response to any instructions to give advice, and in any event does not appear, according to his pleadings, to have played any material part in bringing about the settlement of the action. We should add that the pursuer's pleadings are in any event devoid of any averments to explain why the feasibility of a motion for the postponement of the proof depended uniquely on its being presented by the defender. Moreover, there are no averments which if proved would establish that such a motion would have been successful or that the pursuer's claim against Mr. Harper for £175,000 would have been successful.

Shortly before the hearing of the appeal the pursuer was given permission to lodge additional grounds of appeal, in which he maintained that the rejection of his case by the sheriff principal constituted a breach of his right to a "fair and public hearing by an independent and impartial tribunal established by law" and his right of access to the courts for the determination of civil rights and obligations. We find no foundation whatever in either of these criticisms. If it is suggested that dismissal of his action deprived him of the opportunity of presenting evidence in support of his case, that is a consequence of the irrelevance of his pleadings. The dismissal of an action on the ground of the irrelevance of the pleadings does not constitute, in our view, a breach of either of the provisions to which he referred. There is nothing in the way in which the sheriff principal disposed of the action which indicates that he failed to display impartiality. In any event the relevancy of the pursuer's pleadings have been fully considered by this court.

In these circumstances we are satisfied that the pursuer has failed to state a relevant case. It is not, however, entirely satisfactory to leave matters on that basis in a case involving a party litigant and a senior member of the legal profession. On any view what happened in this case was not entirely satisfactory. There should, ideally, have been a discussion of the pursuer's reservations about the advice which he had been given by the defender in his opinion dated 23 September 1987, including the question of the value of a flat on the basis that it was without defect. Advice could have been given in writing or at a further consultation. There should have been preparation for the proof and earlier consideration of the question whether it could proceed on the date which had been set for it. That should all have been done in time to enable the pursuer to look for alternative advice and, if steps were to be taken to have the proof postponed, to enable this to be done in good time.

We do not know fully what happened, but it appears that the ideal was not achieved, partly at least because of the difficulties about the transfer of representation. However, the defender was in no way responsible for any delay in preparation for the proof or any failure to seek further advice. As counsel it was not his responsibility to progress the litigation. He had expressed his opinion, and it was for the pursuer or his solicitor to take any further steps, including requesting further advice from the defender, if they wished to do so. There is no indication that any steps had been taken to see whether the defender was actually available to conduct the proof, and it appears clear that he was never instructed for it. The defender was not, so far as appears, given proper instructions to give advice at the time of the telephone call on 30 December. It is not said that he was supplied with the papers for the case or that he was even aware of the surveyor's advice as to the value of the proper on the basis that it was without defect. In these circumstances the worst that might be said of the defender's response at the time of the telephone call was that he did not go out of his way to help the pursuer, that he may have been unwise to discuss the case at all and that, when he did so, he may have been unnecessarily discouraging in his reference to the evidential position. Some such criticisms may lie behind the view expressed by the lay member of the Faculty's investigating committee, which is briefly referred to in the pleadings, although we should make clear that, on the material before us, we are not in a position to judge how far any such criticisms may have been justified. Essentially, however, all that the defender did was to reiterate the advice which he had given in September, on the assumption, which may not have been unreasonable, that there had been no significant change in the relevant factors. In these circumstances we are not able to discern, on the information before us, any clear basis for an action of damages against the defender.

Following the reply by counsel for the defender to the pursuer's submissions the pursuer asked leave to lodge a minute of amendment. During the course of the earlier discussion he had claimed that at the end of the hearing before the sheriff principal he had sought leave to amend in general terms. Of that there is no trace in the papers before us. Counsel for the defender, Mr. Hanretty, strongly objected to this amendment on the grounds that it was wholly inadequate, that it came far too late in an action which had a long history, that the sheriff and the sheriff principal had not been given the opportunity to express their views upon it and that the amendment for the first time made averments as to what would have happened after the telephone conversation between the pursuer and the new solicitor. In these circumstances it was plainly prejudicial to the defender. We refused to allow this minute of amendment to be received, for the reasons advanced by counsel for the defender, and in particular as to its lateness.

Accordingly the appeal will be refused.