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Cite as: 2002 SCLR 1039, [2002] ScotCS 341

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Wright v. Paton Farrell & Ors [2002] ScotCS 341 (27 August 2002)

OUTER HOUSE, COURT OF SESSION

A5555/01

OPINION OF T G COUTTS, Q.C. SITTING AS A TEMPORARY JUDGE

in the cause

TREVOR RUSH McCAFFERTY WRIGHT

Pursuer;

against

PATON FARRELL and OTHERS

Defenders:

________________

Pursuer: Di Rollo, Q.C., Ketchen & Stevens, W.S.

Defenders: Shand; Dundas & Wilson

27 August 2002

Introductory
[1] In this action the pursuer sues his former solicitor in relation to the conduct of a defence to a trial on indictment. The pursuer alleges that his defence was conducted negligently and that he has suffered loss through not receiving a fair trial. It is to be noted that nowhere in his pleadings does the pursuer assert that he would have been acquitted. His contention is (Condescendence 4) that as a result of the defenders' negligence he did not receive a fair trial; that a miscarriage of justice occurred; that he was sentenced to imprisonment and remained imprisoned for three months until released on interim liberation.

[2] The matter came before the Court at procedure roll, the parties each having tabled three preliminary pleas each of which they argued. The defenders tabled a general plea to the relevancy and lack of specification; a plea that any action based on the defenders' solicitor's alleged acts or omissions in the conduct of a criminal trial was irrelevant and also a plea that the pursuer's averments of alleged loss and damage were irrelevant and lacking in specification. For his part the pursuer sought that proof be restricted to quantum pleading that the defenders' answers were irrelevant and lacking in specification. He also tabled pleas to the relevance of specific averments about the jury at the pursuer's criminal trial; to the catalogue of previous convictions the pursuer had and to the averments about the conduct of the prosecution. He sought to have the averments relating to those matters deleted from probation. The arguments extended over several days despite the exiguous Note of Argument for the defenders.

The background facts
[3] The pursuer who had already served a sentence of twelve months' imprisonment imposed upon him on 25 November 1997 was charged with offences on two separate indictments while on bail in respect of yet another offence. The first indictment charged him with a contravention of the Road Traffic Act on 28 August 1998 with driving while disqualified, and with committing that offence while on bail granted him on 11 August 1998. He lodged a special defence of alibi for that date by the hand of his agent Peter Farrell who conducted his defence.

[4] On a second indictment he was charged along with three others with theft by housebreaking; theft of a motor car; and a contravention of section 49 of the Criminal Law Consolidation (Scotland) Act 1995. The date libelled for the charges in the first indictment was Friday 28 August 1998, the date libelled in the second indictment was 28 August 1998 in respect of the first two charges therein and 29 August in relation to the third. He was cited while a prisoner at Barlinnie.

[5] The special defence which had been lodged for the pursuer was in general terms viz. "at the time it is alleged the offences referred to in the indictment took place the panel was in Aberdeen"; an address and the names of witnesses were specified.

[6] The circumstances of the trial are described more clearly and accurately in the published report of his appeal on 11 April 2000 (which appears at 2000 S.C.C.R. 638) than in the pleadings. Condescendence 2 contains somewhat of a gloss on events. The pursuer's complaints in Condescendence 2 are that his solicitor did not ask the correct questions, that he failed to object to suggestions by the fiscal and so allowed doubt to be cast on the credibility of the pursuer. Matters are far more fully dealt with in the Opinion of the Court of Criminal Appeal which the pursuer has incorporated into his pleadings brevitatis causa, and so, presumably accepts.

[7] The Court summarised matters as follows in the Opinion:

"The procurator fiscal challenged the appellant's credibility on the basis that, when he initially gave evidence about what he did on the Friday evening, he 'gave the wrong story'. When the appellant replied that he had thought - rightly, of course - that they were talking about the Friday night into the Saturday, the procurator fiscal then referred to the evidence as showing that they were talking about the early hours of the Friday morning. On that erroneous basis, he then accused the appellant of forgetting the script.

We have no doubt that this misconceived passage in the cross-examination of the appellant gravely compounded the risk, which had already arisen from his examination in chief, of illegitimate damage being done to the appellant's credibility. Moreover, there was no re-examination and the jury must therefore have been left with the impression that the appellant's agent accepted the basis of the cross-examination.

We are thus faced with a situation where the Crown make a mistake in framing the charges against the appellant. That mistake leads to both the procurator fiscal depute and the appellant's agent conducting the trial on the wholly misconceived basis that the events in question took place on the Friday morning, when it was plain, even on the evidence of Constable Thomas, that they had occurred on the Saturday. In particular, the appellant is questioned on that misconceived basis, which is used to cast doubt on his credibility. Finally, in his charge to the jury the presiding sheriff makes no reference whatever to the matter and so nothing is done to correct the false impression for the jury. This is a case where the appellant's whole defence to the charges rested on his alibi and he was the only witness to give evidence in relation to the alibi. Doubtless, the jury might well have accepted the police officers' evidence and have rejected the appellant's evidence even if he had been examined in the ordinary way. But for reasons involving errors which began with the Crown and were continued by both the Crown and the defence, the appellant was badly prejudiced in giving his evidence to the jury. In these circumstances he did not receive the fair trial to which he was entitled and a miscarriage of justice occurred. We shall accordingly allow the appeal and quash the conviction."

[8] The pursuer remained in prison, where he was at the time of the trial, after his conviction until released on interim liberation on 16 March 1999. He had an impressive array of previous convictions and sentences of detention starting in April 1987 and continuing thereafter until his release from a sentence of twelve months' imprisonment which had been imposed on 25 November 1997. That release must have occurred shortly before the offences with which the present litigation is concerned; he was, even then, on bail.

[9] The Note of Appeal contained five grounds, all derived from the case of Anderson v HMA 1996 JC 29 (to which reference is made later). However that was not the basis of the decision of the Court. Matters, said the Lord Justice General, had to be viewed in a wider perspective and it is apparent from the Opinion of the Court that the decision was not based on any single matter, nor any special part of the Grounds of Appeal but upon the inadequacy of the proceedings against the present pursuer when the whole facts were taken into account. Those were the framing of the indictment; the conduct of the fiscal; the way in which the defence solicitor proceeded thereafter; and the silence of the sheriff on date discrepancies. These were all part and parcel of the finding of the miscarriage of justice. The Court did not hold that the accused was convicted as a result of inadequate representation although that featured in the end result of a miscarriage of justice.

The pursuer's case as pled
[10] The pursuer avers that he was denied a fair opportunity to present his defence. He then, in Condescendence 3, states "as a result he sustained the loss and damage hereinafter condescended upon". The Condescendence "hereinafter", Cond. 4, avers that he suffered loss and damage, that he did not receive a fair trial, that his defence was severely prejudiced, and that a miscarriage of justice occurred.

[11] The pursuer's averments of fault consist of an allegation that the defenders failed to conduct the pursuer's defence according to the standard of care to be expected of any reasonably competent agents (sic) carrying out such work. As a matter of specification of that assertion he avers failure in each of all of the following duties:

"Any, (reasonably competent) agents would have precognosed the Crown witnesses in advance of the trial. They would have ascertained the precise date and time when the offences were alleged to have been committed. They would have clarified that the offence in respect of which alibi evidence was to be led took place in the early hours of 29 August 1998 and led evidence from the pursuer as to where he was at that precise time. No reasonably competent agent exercising such knowledge, skill and care would have led evidence from him in the manner hereinbefore condescended upon. No reasonably competent agent exercising such knowledge, skill and care would have suggested to the pursuer that he had made a mistake when in fact he had not done so. No reasonably competent agent exercising such knowledge, skill and care would have put to him that the offence was committed at a time different from the time when it was in fact committed. No reasonably competent agent exercising such knowledge, skill and care would have asked the pursuer to account for where he was at a different time from the time when the offence was in fact committed. Further, any such agent would have objected to the suggestions made by the procurator fiscal depute in cross-examination. In any event he would have re-examined the pursuer with a view to attempting to clear up the confusion inevitably created by the conduct of the case as hereinbefore condescended. In each and all of their said duties the defenders failed and by their said failure caused the said loss and damage."

[12] These alleged failures, it can be seen, have a different emphasis and do not follow the narration of what happened before and at the trial given by the Appeal Court. The relevance of the pursuer's case is discussed below.

Immunity from suit

Defenders' argument
[13] The first major submission for the defenders was that the cause was irrelevant because the duties averred related to the conduct of the trial itself and a defending lawyer is immune from suit. That submission involved consideration of the Scottish Inner House decision Batchelor v Pattison & Mackersy (1876) 3 R. 914 as well as the English authorities Rondel v Worsley 1969 1 AC 191, Saif Ali v Sydney, Mitchell & Co 1980 AC 198, and Arthur J S Hall v Simmons [2002[ 1 A.C. 615 All these cases were inappropriately cited to the Court in the All England Reports version, which has necessitated some unnecessary cross-checking. The other major Scottish authority, Anderson v HMA 1996 JC 29 was also discussed. Counsel argued that in both England and Scotland, until the decision in Hall, advocates and barristers enjoyed immunity from suit. The effect of Hall was, it was said, that in England, Rondel v Worsley ceased to apply after the date of the decision in Hall. Nothing was decided about the Scottish position. The Judges who participated in the decision in Hall were careful to point out that their decision was based upon public policy considerations which applied in English law. If immunity in Scotland extended to a solicitor acting as advocate, as opposed to a solicitor advocate, that situation had not been altered by Hall and in any event the actings complained of in the present case pre-dated the decision in Hall. Accordingly it could be argued that the present case, had it been English would still have attracted immunity. The decision in Hall was in fact obiter in that the question of immunity from suit in relation to criminal advocacy did not require to be determined for the purposes of achieving a solution in that case.

[14] Anderson and the speech of Lord Hope of Craighead in Hall was sufficient authority for the view to be taken that had the matter of a solicitor's immunity when acting as an advocate in a criminal case in Scotland been considered separately, immunity would have been found to be appropriate. Lords Hutton and Hobhouse agreed with Lord Hope.

[15] The majority decision in Hall being one based on public policy it was important to note the conditions under which it was there said that the public policy as explained in Rondel v Worsley was no longer appropriate. Public policy in Scotland did not require abandonment of the "core immunity" as Lord Hope described it in Hall, since the various protections discussed by, for example, Lord Hoffman ,as providing safeguards against vexatious actions and endless litigation over the same matters, did not apply in Scotland.

[16] Counsel also referred to a "Human Rights" argument, deployed by the pursuer as noted below.

The pursuer's response to immunity argument
[17] Counsel for the pursuer's first radical submission was that a solicitor never enjoyed any immunity in Scotland in relation to his conduct in Court, civil or criminal, and in any event did not now do so. In Batchelor it was only held that counsel were immune from claims in respect of professional negligence because of the nature of their office. There was no direct authority giving immunity to solicitors. Reference was made to Frame v Campbell 14 S914. I invited comment on Hart v Frame, a parallel case reported 14S 922 which was appealed to the House of Lords and reported (1839) 6 Cl & Fin 193 and Urquhart v Grigor 19 D853. More recently in Murray v Riley 1963 S.L.T.(Notes) 49 the averments, at procedure roll, stated a solicitor's duty to be that of any professional man. A proof before answer was allowed in respect of averments of negligence in the conduct of the litigation in Court. Anderson v HMA did not go so far as to give immunity to solicitors without right of audience. Their position was made plain by the provision in the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 section 27(6) in which it was enacted that a solicitor advocate shall have the same immunity as if he were advocate. If he already did have that immunity it would have been unnecessary so to provide.

[18] In any event, the position is now plain following Hall; there is no such immunity and the pursuer is entitled to proceed with his action.

[19] Furthermore, counsel argued, such an immunity was not compatible with the provisions of the ECHR He argued that any immunity claimed in the present case, i.e. a bar against an individual raising an action on the ground of negligence, or breach of contract, because the defender was an advocate or solicitor would be incompatible with Article 6(1). The case of Osman v The UK, 28 October 1988 (87/1997/871/1083) when considering a police immunity rule discussed on the grounds of public policy in the House of Lords, rejected the argument that it was not fair, just or reasonable to impose a duty in the circumstances on the police. The Court decided that Article 6(1) of the Convention was applicable and at para.153 said this:

"The Court is not persuaded either by the Government's plea that the applicants had available to them alternative routes for securing compensation (see paragraph 145 above). In its opinion the pursuit of these remedies could not be said to mitigate the loss of their right to take legal proceedings against the police in negligence and to argue the justice of their case. Neither an action against Paget-Lewis nor against Dr Ferguson, the ILEA psychiatrist, would have enabled them to secure answers to the basic question which underpinned their civil action, namely why did the police not take action sooner to prevent Paget-Lewis from exacting a deadly retribution against Ali and Ahmet Osman. They may or may not have failed to convince the domestic court that the police were negligent in the circumstances. However, they were entitled to have the police account for their actions and omissions in adversarial proceedings".

[20] It was argued that the subsequent case Z & others v The UK 10 BHRC 384 did not modify the view of the Court in Osman in such a way as to make it inapplicable to the present circumstances. In Z the Court in Strasbourg armed, they said, with a better understanding of the domestic law, acknowledged that the right to have a question determined by a tribunal was not absolute and could be subject to legitimate restrictions. They held that a decision that as a matter of law there was no duty of care could be characterised as an exclusionary rule or immunity depriving people of access to the Court. Having considered Lord Browne Wilkinson's speech in the House of Lords the Court found in that case that there was no violation of Article 6 and explained that the views expressed by the Court in Osman were based on a misunderstanding of the law of negligence (para.100). In Green (37 2001) and Patel (192 200) it was held that the similar complaints were inadmissible in the particular circumstances of those cases. This Court counsel argued should consider in the light of Hall whether the immunity contended for by the defender is justified, indeed it has a statutory duty so to consider it.

Decision upon immunity question
[21] The pursuer's argument in connection with the necessity to provide an opportunity for litigation in the event of failure in the duty incumbent upon a professional man together with the lack of precedent, giving a solicitor immunity, has its attraction. I consider, however that following the dicta in Anderson, that if this matter had come before the Court prior to Hall it would have been held that a solicitor acting as an advocate also enjoyed immunity from suit in relation to his conduct of a trial while acting in Court. Although Anderson did concern a solicitor advocate the Court followed the view expressed in Rondel v Worsley that the public policy immunity of counsel should also apply to solicitors to give them immunity from suit for negligence with regard to work in litigation which would have been carried out by counsel if counsel had been acting in the case. Thus, said the Lord President, the solicitor when acting as his client's advocate is placed on the same footing as counsel in regard to the independence which he is entitled to exercise in the conduct of the case in Court on his client's behalf (page 35G). In his speech in Hall, his Lordship maintains that view. I accordingly reject the submission that at the time the criminal trial took place the defender did not enjoy immunity from suit in respect of his actings in Court.

[22] The decision in Hall, which was concerned with English Civil law and English procedure is not binding in Scotland. Furthermore the decision in Hall was subsequent to the trial in the present case; Hall expressly did not overrule Rondel, merely holding that since public policy considerations had changed in England Rondel no longer applied. Rondel thus remained good law until the decision in Hall was pronounced.

[23] In the Outer House, however, a judge is still bound by Batchelor v Pattison & Mackersy. It cannot be held there that Scottish public policy has so changed that a Lord Ordinary would be able to ignore Batchelor or more particularly the dicta in Anderson. I agree with counsel for the defenders that the various examples given by the majority when discussing public policy in Hall and the availability of protection against the evils described by Lord Hope apply only in English law. Specifically, the English application of the "Cab rank rule"; the way in which vexatious claims can be controlled and disposed of (see section 12 of Lord Hoffman's speech) has no parallel in Scotland; wasted costs orders cannot be made north of the Tweed. Re-litigation is rightly perceived to be a clear danger in Scotland, especially with the increasing advent of party litigants, and Lord Hope described his fears about the impact of removal of what he described as the "core immunity" at page 717 and following. I respectfully agree with him. To describe these fears as "an intuitive prediction" as Lord Hoffman does at section 16 of his speech does the view of Lord Hope less than justice. The reasons for rejecting it and preferring a new approach so far as England is concerned would appear themselves to have been based somewhat on an intuitive prediction.

[24] The Inner House have not since Batchelor been called upon to opine on the matter of advocates' immunity in civil actions. In the most recent case before them, Crooks v Haddow, 1 March 2000, the immunity plea had been successfully taken before the sheriff and the sheriff principal who were plainly bound by Batchelor and in no position to disregard it, at least at that time. The position adopted before the Second Division however was stated by the Court in their opinion thus:

"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 indicated 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."

The Human Rights argument
[25] In the light of the discussion in Z it is not inevitable that the mere fact of an immunity is sufficient to found a violation of Article 6(1). The matter depends upon considerations of policy. The House of Lords in Hall have discussed the policy and came to a majority view so far as England was concerned. For the reasons I have given above I do not consider that the public policy argument in Hall requires the Court to hold that immunity in Scotland is inconsistent with the Convention. It appears to me that the decision in Osman relied upon by Mr Di Rollo can afford him no assistance after the decision in Z. If the Scots Court were to hold that public policy no longer applied then the ECHR jurisprudence adds nothing to the argument.

Defenders' other pleas seeking dismissal
[26] The defenders' counsel also set out a lengthy and elaborate argument and it is right that I should narrate it and give my views thereon should a different view be taken in the appropriate Court about the matter of immunity.

[27] I noted counsel's submissions as follows: Firstly that the pursuer's substantive case was irrelevant because the loss and damage pled is not of a type which falls to be compensated. Secondly the pursuer having made no offer to prove that the outcome of the trial would have been different must feel that this is not a type of action in which "loss of chance" is an appropriate formulation. Thirdly, in any event, the loss claimed is in relation to a clearly speculative chance and there is no offer to prove that there was a real chance of acquittal. Counsel deployed her argument, in default of any clear precedent related to misconduct of a criminal trial, by considering the cases in which negligent representation, such as failure to observe time limits had resulted in claims against the complainer's representative.

[28] Guidance about the relevant consideration, she argued, might be obtained from the observations of Lord Morris of Borth-y-gest in Rondel at page 249 where his Lordship said:

"If someone has been tried on a criminal charge and has been convicted it would not be of any purpose for him to assert that his counsel had been unskilful unless he could prove that he would have been acquitted had his counsel conducted the case with due care and skill. He would have to prove that on a balance of probability."

Lord Steyn in Hall said:

"A plaintiff who claims that poor advocacy resulted in unfavourable outcome will face the very great obstacle of showing that a better standard of advocacy would have resulted in a more favourable outcome."

[29] Lord Hoffman emphasised that the plaintiff has to prove that the lawyer's negligence caused him loss and that the burden of proof was upon him. In discussing the matter of collateral challenge Lord Hoffman said:

"As a practical matter it is very difficult to prove that a case which was lost after the full hearing would have been won if it had been conducted differently. It may be easier to prove that with better advice, a more favourable settlement would have been achieved. But this goes to the question of whether in the words of CPR 24.2 the plaintiff has 'a real prospect of succeeding on the claim'".

These passages indicated, it was argued, that there required to be established in the present case that there was a real prospect of a different outcome had the defender conducted the trial differently. There could be no question of settlement nor any prospect of some form of negotiated outcome which could be evaluated in cash terms in a criminal trial.

[30] In cases in Scotland arising from failure in duty in a civil context the pursuer has to establish on the balance of probabilities that loss has been caused in a situation where the pursuer had real prospects of succeeding: Kenyon v Bell 1952 S.L.T. Notes 78, Yeoman v Ferris 1967 S.L.T. 332 at 335, Kyle, v P & J Stormonth Darling 1993 SC 57 per Lord Prosser at pages 58D-E, 59C-D and 61B-C. The present case is a Kenyon v Bell situation, not that in Yeoman or Kyle since the pursuer had to establish the causation of any loss as a pre-requisite to and distinct from any problems in quantifying that loss.

[31] In two recent Outer House cases decided by Lord Hamilton, the English authorities were discussed. In particular Allied Maples Group Ltd v Simmons and Simmons [1995] 1 WLR 1602 featured in the arguments in the submissions after proof in John Paul & Others v Alexander Lindsay Ogilvie, 25 January 2000 and in the procedure roll discussion in McCrindle Group Ltd v Willis Corroon Scotland Ltd, 10 January 2002. In the latter case Lord Hamilton said:

"Mr Peoples in responding to Mr Young's citation of Allied Maples Group v Simmons & Simmons did not go so far as to maintain that the approach and decision in that case was inconsistent with Scots law. He acknowledged that in some cases 'loss of opportunity' might found a relevant claim of damage sustained, albeit no 'pure' right as such had been lost. In these circumstances I proceed on the basis that there is nothing inimical to Scots law in the principles discussed in that case upon which all three distinguished judges were agreed, albeit on the particular facts Millett L.J. differed on some aspects. At p.1611 Stuart Smith L.J. expressed a firm opinion that in circumstances where a plaintiff's loss depended on the hypothetical action of a third party his claim could succeed provided he showed that he had a substantial chance rather than a speculative chance that the third party would have acted in the relevant way, the evaluation of the substantial chance being a question of the quantification of damages. He expressly rejected a submission that the plaintiff required to prove on a balance of probability that the third party would have acted in the relevant way. He also (at p.1611F-G) rejected a submission that recovery was open only where the plaintiff had lost a 'valuable right or chose in action'. Those rejections were concurred in by both the other judges. They appear to me to be sufficiently supported, at least for present purposes, by the (English) cases there discussed. These include observations on the general matter, albeit in a slightly different context, by a very distinguished Scottish judge (Lord Reid in Davies v Taylor [1974] A.C.207). Although the decision in Kyle v P & J Stormonth Darling W.S. proceeds on the basis of the loss of a 'right', I do not read the Opinions in that case as requiring me to hold as a matter of settled Scots law that such a loss is in every case an essential prerequisite to a relevant claim. Mr Peoples did not suggest that I should".

[32] In this case Ms Shand, undaunted, argued that Allied Maples was inconsistent with Scots law. Of the line of authority culminating in Allied Maples, beginning with Kitchen v RAF Association 1958 1 WLR 563 and Cook v Swinton 1967 1 WLR 457 Lord Prosser in Kyle had said (p.62):

"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 loss, opportunity or chance is itself a matter of legal right".

Equally, it was argued, there was no clear ratio in Allied Maples which appeared to have been followed in error in three other cases - Stovold v Barlows 1995 TLR 550; First Interstate Bank of California v Cohen Arnold & Co 1995 TLR 664 and Acton v Graham Pearce & Co 1997 3 AER 909. In Spring v Guardian Assurance plc 1995 2 AC 296 which case was referred to in Allied Maples their Lordships remitted to the Court of Appeal for an assessment of damages. That case was based upon failure to give a non-negligent reference to an employee. Lord Lowry at p.327 is quoted and adopted by Stuart Smith L.J. in Allied Maples at p.1613 as follows:-

"Lord Lowry expressed the Opinion obiter, at p.327:

Once the duty of care is held to exist and the defendant's negligence is proved, the plaintiff only has to show that by reason of that negligence he has lost a reasonable chance of employment (which would have to be evaluated) and has thereby sustained loss. He does not have to prove that but for the negligence reference, Scottish Amicable would have employed him.

I respectfully agree with that statement of the law."

Spring however is not authority for the reasoning in Allied Maples. Scottish authority and in particular Kyle demands that the pursuer prove that he had a real and substantial right and in this case there are no proper averments of that. No assessment can be made of an outcome arrived at by a jury in a criminal trial on averments and there are no proper averments in any event. The pursuer will fail unless it is established that he had lost a right and that that loss had an ascertainable, measurable, non-negligible value. But before that stage is reached a causal link has to be established between the negligence and the loss, and the pursuer does not properly aver that.

Pursuer's response
[33] It requires to be remembered that in the present case the conviction of the pursuer has been set aside. The situation might well be different if that had not been done but that very fact establishes the causal link between the negligence and the loss and the pursuer is entitled to aver his case accordingly. He has done so. The pursuer's complaint is that he would and should have been able to present a different case to the jury and that he has been deprived of a fair opportunity to present his defence due to the negligent representation. There requires to be proof before answer on this matter; Yeoman was not decided on pleadings.

[34] The pursuer has averred that he lost the opportunity to present properly to the jury his defence, which defence might have succeeded and that in the circumstances is sufficient. His loss of right was the loss of a fair trial which is every man's right.

[35] Although the assessment of damages might be difficult the fact of damage was not speculative. In order to have the case dismissed the defenders would have to show that the pursuer's claim was purely speculative.

[36] Other cases were cited but I did not find these of any assistance in the particular aspect of the case with which I am here concerned.

[37] The pursuer then proceeded to argue his pleas, although in a somewhat half hearted fashion contending that the defenders had no averment that the standard adopted by him did not fall below the proper standard of care. The averments about the time occupied by the jury and the matter of other convictions were irrelevant and should not be remitted to probation.

Decision on relevance
[38] Had I not been of the view that the case at this stage required to be dismissed because of the immunity argument supra I would have sent the whole matter to a proof before answer with all the other pleas standing. It seems to me that the pursuer has adequately averred that there was a miscarriage of justice caused, perhaps only in part, by the negligence of his solicitor. That miscarriage may also have been caused by the carelessness of the Fiscal and perhaps by an inadequate summing up by the sheriff. In essence however the pursuer has advanced at least a case of joint and several fault on the part of the defenders for which they would be liable and, it may be, even enough to establish sole fault. In either event he would be entitled to proceed to inquiry.

[39] The lengthy discussion of the various authorities demonstrated that the rationales lying behind the decisions in the various cases were complex and sometimes inconsistent. Various eminent judges have tried in various ways to discern a way through the difficulty of distinguishing, as a matter of law, between loss of a chance loss of opportunity and pure speculation. A case like Kenyon where the pursuer had to prove that the physical loss sustained resulted from the negligence on a balance of probabilities is easily distinguished and in my view quite separate. The present case is again different from but closely akin to the civil line of authority where the underlying premise seems to be that the pursuer had a right to have a certain course of action followed or a right to be free from negligence on the part of those to whom he had entrusted his affairs. That is an independent right and although it may be exceedingly difficult to quantity causes a loss which sounds in damages if it can be established to have a real, non-negligible value. It would be a rare case where it could be determined at procedure roll that the loss of a right had a negligible value.

[40] In McCrindle Group Ltd Lord Hamilton was careful to avoid giving an unequivocal recognition to the proposition that Allied Maples was good authority in Scotland. From my own part I do not consider that Allied Maples is necessarily inconsistent with the Scots approach as exemplified in Kyle which is the authority binding upon me. In Kyle the Court having discussed and accepted the difference between the situation in Kenyon and that of a pursuer who had lost the right to pursue a litigation said at p.68 "the negligent act consists of the agent's neglect to take the peremptory step timeously. The loss consists of inability to pursue the claim thereafter. The causal link between the act and the loss presents little problem in such a case". The Court continued however, to say that 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 and, further ,at 69E said "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 pre-condition of obtaining an award against the present defenders, to show that he would probably have succeeded in the original litigation".

[41] While acknowledging the difficulty of transposing such considerations to a criminal jury trial it does seem to me that causation also causes little difficulty in the present case. The negligence of his agent has caused the pursuer to lose the right to have his case presented to the jury in a manner in which his credibility could not be so obviously assailed. It is not necessary, as I read the authorities, for the pursuer to aver and prove that he, on the balance of probabilities, would have been acquitted by the jury. Whether he was or was not likely to be acquitted can be dealt with in the assessment of damages. It would only be if it could be argued, as in this case it cannot, that the pursuer would have been convicted anyway that this would fail at procedure roll.

[42] While it may be that assessment of damages in this case will provide a far more difficult exercise than was presented in Yeoman v Ferris or in Kyle mere difficulty of assessment cannot and should not be fatal to the pursuer's claim.

[43] With regard to the pursuer's pleas I do not consider that these should be sustained at this stage. The trial judge will require, in my view, to hear the whole circumstances surrounding the negligence and the conviction in order to arrive at an assessment of what, if anything, the pursuer should receive as a result of any proven negligence.

Summary
[44] I hold that the defenders are immune from suit and shall accordingly sustain the second plea in law for the defenders and dismiss the action. If that view of the law is incorrect either because the solicitor was never immune from suit or because any immunity no longer applies in Scotland as a matter of public policy, then I would have ordered a proof before answer on the pleadings as they stand reserving all preliminary pleas apart from the second plea for the defenders.