Professional negligence conference considers key Scottish cases

Lawyers received a high-level update and review of law and procedure in non-medical professional negligence disputes at the Professional Negligence Lawyers Association (PNLA)’s recent annual conference in Edinburgh.

The conference at the Signet Library went over some of the Scottish cases that have made a significant impact on the law.

Foremost was the Supreme Court case of Steel & Anor v NRAM Ltd (formerly NRAM Plc) (Scotland) [2018] UKSC 13, conducted by the chairman of the event, PNLA management team member Karen Cornwell of TLT.

Speakers at the conference included counsel from the case assessing the implications of the decision – Alistair Duncan QC, Chris Paterson and Ronald Clancy QC. Key points in this context included the re-basing of the legal test for a duty of care not to cause economic loss to a third party through negligent statement, the so called Caparo three stage test and ‘straw men’, contributory negligence and breach of fiduciary duty.

Gary Borland QC examined the state of the case law relating to loss of opportunity in a highly colourful talk including a novel insight into what happened to the cast of characters concerned after the judgment.

Donald Reid of Mitchells Roberton gave his experience and insight into the current state of expert evidence saying ‘The expert witness is really more of a hunted stag than either the poacher or the gamekeeper’.

Paul Reid examined causation, the uniquely difficult legal principle for this type of case, focussing specifically on ‘information claims’ a concept developing from the leading decision of the Supreme Court judgement last year in BPE –v- Hughes-Holland [2017] UKSC 21.

The pace of the conference continued unabated throughout the day, with Tim Edward of Dentons providing an update on the Taylor Report and Civil Litigation (Expenses and Group Proceedings) Bill now proceeding through the Scottish Parliament. This will introduce into Scottish law similar changes to those introduced in England & Wales in the Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO). The concept of ‘qualified one way costs shifting’ will apply now to personal injury and clinical negligence claims in both jurisdictions allowing pursuers to bring claims without the risk of paying the defenders costs even if they lose.

Mr Clancy pressed on with a review of the recent Supreme Court case Gordon & Ors (Trustees of the Inter Vivos Trust) v Campbell Riddell Breeze Paterson LLP (Scotland) [2017] UKSC 75 (15 November 2017) on prescription and discoverability of loss.

The day concluded with a powerful talk by Jonathan Brown on the cases relating to solicitors client accounts, Heather Capital Ltd (in liquidation) –v- Levy & Mcrae [2017] CSIH 19 and Kidd –v- Paul & Wiliamsons LLP [2017] CSOH 16.

Katy Manley, president of the association, said: “Those attending came away stuffed with legal knowledge, albeit left with a feeling that even these talks covered only an overview. The increasing need for expert legal advice from those with an in depth specialism in this area of practice was reinforced.

“Altogether an excellent day thanks to the fantastic speakers and Karen Cornwell of TLT!”