Scottish Courts clarify the need for expert evidence in professional negligence cases

The recent Court of Session decision of Cockburn v Hope [2024] CSOH 69 provides additional guidance to parties and practitioners on when expert evidence is required in actions making allegations of professional negligence.

Background

The case arose from questions around the management of the estate of Mr Cockburn. Concerns over the conduct of one of the executors led to the appointment of the Defender, Carole Hope, as judicial factor. A claim for negligent management of the estate was subsequently brought by Ms Cockburn, a daughter of Mr Cockburn and potential beneficiary of the estate.

The Defender sought dismissal of the claim on the basis that a claim based on allegations of professional negligence can only be progressed with the support of an independent expert report.

The role of the expert

The case often cited to support the argument that a claim or professional negligence cannot proceed absent a supportive expert report is the 2010 decision of Lord Woolman in Tods Murray v Arakin [2010] CSOH 90. In dismissing a claim alleging negligence by a firm of solicitors, Lord Woolman stated:

“… In my view, allegations of professional negligence require to have a proper foundation. Without such underpinning, the court is not in a position to make a finding… In the absence of such a rule, it would be open to a party to make whatever assertions he or she chose, however spurious or mistaken.”

Lord Sandison’s decision pushes back against Tods Murray establishing a general principle that an expert report will always be required. Instead, the role of the expert is framed as providing the specialist evidence needed for a party to plead their case, and the Court subsequently to make a decision. 

In considering claims of professional negligence, the role of the Court is to consider whether the test set out in Hunter v Hanley has been met; namely, has the professional acted in accordance with established practice in their discipline, and if not was their course of action one which no reasonably competent member of their discipline would have taken? In reaching that decision, the Court must have evidence before them which supports a conclusion as to whether the test has been met or not.

For professions with a specialist scientific or technical discipline, that will not normally be possible without the input of an expert witness (usually, by speaking to a report lodged in process). Lord Sandison’s decision however draws a distinction based on the work undertaken by the professional and whether or not it relies on use of a specialist field of knowledge. Instead, the key question as to whether or not expert evidence is required to support a case is:

“… does the act or decision being criticised differ in any relevant respect from the kind of acts or decisions which have routinely to be made in many other fields of human activity? Put another way, does the question being asked resolve itself into one of what reasonable decisions or courses of action were or were not open in a particular and ascertained or agreed set of circumstances? If it does, then expert evidence may well be unnecessary to resolve it…”

In this case, the role of a judicial factor is not restricted to a particular professional discipline. While often a role performed by solicitors, accountants and other professionals can be appointed. On that basis, Lord Sandison held that no expert evidence was required. The judicial factor’s negligence was not the result of errors which ought to have been avoided because of her professional qualifications as a solicitor, but rather errors in how the appointment of judicial factor was performed. Or, to put it another way:

“Any person appointed to the office [of judicial factor] is not in performing his functions discharging the duties incumbent on members of whichever profession to which he may happen to belong, but is discharging the responsibilities of the role itself.”

Discussion

Given his views on the role of a judicial factor, Lord Sandison’s comments on the need for an expert report are obiter and so not binding. However, this is a useful decision for those involved in professional negligence claims, setting out that the key test for whether expert evidence is required will be (i) whether the case involves a professional exercising the specialist knowledge of their discipline, and so (ii) whether the involvement of an expert is required in order to provide the parties and the Court with the evidence needed to make a decision.

This could be particularly important for roles which it is accepted can be undertaken by those holding a variety of professional qualifications. That includes judicial factors, but also trustees, directors and contract administrators. In each case, a question could arise about whether, and to what extent, they are performing duties as a member of their profession. The decision also clarifies that, where a professional is acting as a trustee, whether a trustee’s duties have been breached is a matter of law which falls outside the Hunter v Hanley test for professional negligence.

The Court does not however go as far as to adopt the English law position on the provision of expert evidence, as set out in Pantelli Associates [2012] EWHC 100 (TCC) where the core issue is whether or not the use of expert evidence will assist the Court in the decision they need to make. That will not be the case where the Court already has the knowledge and expertise required to make a decision. While that is similar to the test applied by Lord Sandison, the English law position goes further and excludes expert evidence in claims relating to legal professionals, on the basis that unless dealing with a very specialist area, legal practice is within the knowledge of the Court. Lord Sandison does not go that far.

Expert evidence will still be required where necessary to evidence whether a professional has complied with the specialist practice of their discipline under the Hunter v Hanley test, including for legal professionals.

The case also reinforces the obligation on those acting in litigation to ensure any expert input required is obtained at the outset of a case. Lord Sandison cites with approval the comments of the Inner House in JD v Lothian Health Board [2017] CSIH 27:

“Advocates and solicitors who have rights of audience before our courts have professional obligations and duties to the court not to advance pleadings without proper investigation and support from an appropriate expert or experts who have carried out an expert assessment.”

A similar issue will arise in litigation in the English Courts; as pleadings must be supported by a statement of truth, questions will arise as to whether there is any basis to make that statement absent expert advice. Parties should therefore tread carefully before proceeding without expert input being available.