Outer House receives minute of amendment in solicitors’ negligence action despite arguments over competency

The pursuers engaged the services of the defenders to pursue a civil claim against an Aberdeen student allegedly responsible for the suicide of a family member. After the firm’s admitted negligence caused the family’s action to become time-barred, they raised an action against the firm to recover the value of expenses paid in the proceedings.

The appeal was heard by Lord Cubie, with Nick Ellis KC appearing for the pursuers and Lesley Shand KC for the defenders.

Sufficient nexus to allow joint conclusions

In 2016, the first pursuer’s daughter, Emily Drouet, was found to have died by suicide at a student flat in Aberdeen. Various members of Emily’s family sought damages against Angus Milligan, with whom Emily had entered into a relationship during her first term at university, alleging physical and emotional abuse. Those actions, save for that of the first pursuer qua the parent of Emily’s siblings, were in 2024 dismissed as time-barred on account of the admitted negligence of BTO Solicitors, the defenders, in failing to lodge a summons for calling.

At the conclusion of the 2024 proceedings, the lord ordinary awarded expenses against the pursuers, which award Mr Milligan sought to enforce. In response, the pursuers sought to recover the value of those expenses from the defenders. After the pursuers’ initial conclusions sought recovery from the defenders on an individual basis (i.e., one conclusion in respect of each pursuer), the defenders countered that such conclusions were unsound, for each pursuer could not sue for the totality of the expenses, nor had specific proportions of expenses incurred by each individual pursuer been set out.

In a minute of amendment, the pursuers sought accordingly to add joint conclusions in respect of the relevant expenses. That amendment, they argued, more clearly focussed the dispute between the parties and amounted to no more than a reformulation of their case in respect of damages. It was competent for co-owners, particularly where each had an indivisible interest in the remedy sought, to seek joint conclusions. Since each pursuer had been found jointly and severally liable for the expenses incurred in the initial proceedings, there was sufficient nexus to allow them likewise to sue the defenders for recovery on a joint basis.

In response, the defenders argued that the pursuers could not justify their position that each pursuer was party to the same contract, let alone the claim that the terms of that contract enabled one party to enforce obligations owed to any of the others. As a matter of law, they submitted, each pursuer’s claim required an independent assessment of damages and accordingly required individual conclusions. In any event, any obligation owed to the pursuers jointly had now prescribed in terms of section 6 of the Prescription and Limitation (Scotland) Act 1973.

New conclusions not some opportunistic claim

Lord Cubie began his decision by framing the issue at hand, saying: “It is recognised that two or more pursuers may join together in the same action, each concluding for a separate sum of damages for himself while all found on the same facts and circumstances as establishing the defender’s liability. That rule is so well established as to not require any tracing of its development. The question for this court is whether that vehicle, for having more than one pursuer claim in the same action for losses arising out of the same wrong, provides a bar to a single conclusion in relation to a loss sustained by the pursuers as a group, distinct from the individual losses alleged to have been sustained.”

Noting how the authorities made clear that “procedure should be the servant not the master”, he added: “There are circumstances in which a joint claim may be made; the circumstance[s] in which such a joint conclusion may be apt will be limited. In the instant case, … [e]ffectively no individual pursuer has any right to an identifiable share or part of the damages covered by these conclusions, but rather the whole sum is payable to defray the losses sustained.”

Lord Cubie continued: “The court in the earlier action saw fit to group the pursuers together and to make an order against them as one group for the purposes of an award of expenses[; t]his was intelligible and appropriate. Their interest and liability were indivisible in that context. How can it not be appropriate to allow the same group to now seek [to] recover the same sum as part of a larger claim against the defenders who, the pursuers say, were responsible for that loss? The claims made by the pursuers in relation to the new conclusions are not some contrived device or some opportunistic claim … [T]hey are rather seeking that the court recognise a practical and appropriate mechanism for a loss the pursuers claim to have already sustained.”

Finding the pursuers’ minute of amendment “both competent and relevant”, he stated: “If the defenders were correct about their approach, it would be impossible for the pursuers ever to recover their expenses unless they embarked upon some artificial and, on the face of it, pointless attribution of parts of the expenses to each pursuer. The [l]aw of Scotland is, I suggest, flexible enough to recognise that, in the particular circumstances of this case, the pursuers’ approach is the appropriate route to recover the sums … The alternative is an unattractive inflexibility, where a claim may founder entirely on procedural grounds, because of an inability to provide some precise breakdown or pro rata analysis.”

Concluding his analysis by rejecting likewise the defenders’ arguments on prescription, Lord Cubie reasoned: “The basis for the argument is that the pursuers are seeking this sum as a group, distinguishing them from the conclusions sought as individuals, so they are thereby transformed from one legal entity into another; I do not agree. The basis of the case remains identical; the only charge [sic] is in the vehicle of recovery of a discrete part of the claim, one in which the claims of the pursuers are indivisible or inseparable. There is no merit in the prescription argument; that matter remains for the discretion of the court and I exercise it in favour of the pursuers.”

The pursuers’ minute of amendment was accordingly received.