It has been a commonly held belief that liability evidence from an independent expert witness is required in all professional negligence claims in Scotland, regardless of the profession involved. Lord Sandison's recent opinion in Cockburn v Hope [2024] CSOH 69 serves as a useful clarification of the case law and suggests the correct position may in fact be closer to that adopted by English courts.
Expert evidence in all cases?
While the tests for establishing breach of duty in professional negligence claims in Scotland and England & Wales are slightly different, both are linked to an assessment of what ordinarily competent professionals of the same discipline would have done in the same situation if acting with reasonable care.
To help it apply that test, the court is usually presented with evidence from independent expert witnesses instructed by the parties.
One of the potential differences between professional negligence claims in Scotland and England & Wales lies in the approach of the court to such evidence, particularly in claims against legal professionals. In England & Wales, courts generally consider themselves able to determine matters of normal practice in the legal profession without expert evidence (excepting certain specific situations), whereas in Scotland it has long been considered by many that the court will need independent expert evidence in all professional negligence claims, even those concerning matters of legal practice.
Abuse of process?
The basis for this view in Scotland commonly stems from the 2010 decision in Tods Murray WS v Arakin Ltd where Lord Woolman dismissed an allegation of professional negligence on the basis it was an abuse of process.
In Tods Murray no expert report had been produced and Lord Woolman stated that allegations of professional negligence require to have a proper foundation and "must always be buttressed by a report from an appropriate witness".
No universal proposition
In the recent Court of Session case of Cockburn v Hope the defender relied on Tods Murray in attempting to have the pursuer's claim struck out because she had not produced expert evidence in support of her allegation that a judicial factor had been professionally negligent in the administration of an estate.
In rejecting the defender's position, Lord Sandison stated that "despite the popularity of the view that an allegation of professional negligence must in every case be supported by a suitable expert report", he remained "unconvinced that any such universal proposition is warranted".
Lord Sandison noted that the facts of Tods Murray were very specific to its circumstances and the way it had been applied to support arguments that expert reports were always required was "something of a leap in reasoning".
As a matter of principle, Lord Sandison looked at the leading English Supreme Court case of Saif Ali v Sydney Mitchell & Co [1980] AC 198 and concluded there was nothing in any of the Scottish authorities suggesting a different approach should be taken in Scotland.
Accordingly, while there are of course cases where it would be impossible for the court to determine professional negligence without expert opinion, especially in disputes concerning a specialist scientific or technical discipline, there are many cases which involve professional decision making in more 'mundane' settings where the court might be expected to understand the relevant background without any assistance.
Lord Sandison identified that the critical question is whether the act or decision being criticised differs from the kind of acts or decisions which routinely have to be made in many other fields of human activity. It is only where the question of professional negligence falls outwith such activity that expert evidence is necessary.
Not a professional negligence claim anyway
As it turns out, the above was all rather moot because Lord Sandison also found that Ms Cockburn's claim was not one for professional negligence anyway: there being no recognised profession of 'judicial factor' which is in fact just an office to which the court appoints an individual.
Impact on practice?
While this judicial clarification is welcome, it will be interesting to see the extent of any practical impact it has.
The most likely area where pursuers may modify their approach would be claims against legal professionals, but if breach of duty is denied it would likely be a brave decision to proceed all the way to proof (trial) without any expert evidence to support the allegations founded upon.
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