Solicitors’ partnership not liable for losses suffered by beautician arising from defects in purchased premises

About this case:

• Citation:
  [2026] CSOH 16
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lady Tait

Pursuer Karen Lamb sought damages from Campbell Boath Solicitors of £1.537 million for loss of profits with an additional £60,000 for inconvenience on the basis of breach of contract. She argued that Kenneth Soper, the partner who she instructed in relation to the purchase, had failed to advise her properly on a qualified acceptance issued by the seller and the absence of a completion certificate for any work undertaken to the building.

The case was heard by Lady Tait in the Outer House of the Court of Session, with Heaney, advocate, appearing for the pursuer and McKenzie KC and Tyre, advocate, for the defender.

Keen to settle

In 2012 the pursuer instructed Mr Soper to assist her in the purchase of a shop at 108 Seagate, Dundee. She explained that she intended to convert the subjects into a beautician’s salon, however work required to be completed to the rest of the building, which was to be altered to provide three additional floors of residential flats above, before the subjects could be occupied. Mr Soper made a formal offer to the seller’s solicitors of £250,000 on 31 July 2012, for which a qualified acceptance was issued. Missives were concluded in the terms of the qualified acceptance, which Mr Soper did in the knowledge that there would be no completion certificate issued for the subjects themselves or for the larger development prior to settlement.

Following completion of the purchase it was ascertained that there was a series of problems with the building works, including structural defects requiring extensive remedial works. Consequently, the pursuer was unable to run her business from the premises. It was the pursuer’s case that the defenders breached a duty to procure satisfactory protection for her in the absence of a certificate of completion, and had she not bought the subjects she would not have ended up in difficulty with the bank which had approved a loan for part of the purchase price.

Evidence was given by Mr Soper that he met the pursuer on two occasions and described her as very keen to settle. He said that she had accepted that there would be no competition certificate in place, and that they took the architect at his word that all works in the unit were complete. Asked whether he told the pursuer that it was not in her interests to conclude, Mr Soper said he did but that the pursuer did not listen.

On behalf of the pursuer, it was submitted that she could succeed on the basis of a finding either that Mr Soper told the pursuer that there was an undertaking for a completion certificate to be delivered or that Mr Soper did not adequately explain the risk of proceeding on the missives as concluded. The defenders invited the court to reject the pursuer’s evidence as unreliable and submitted that they could not be held responsible in law for all the consequences flowing from her entering into the transaction.

Clear and informed instructions

In her decision, Lady Tait said of the pursuer’s evidence: “I have made due allowance for the considerable passage of time since 2012 and for the fact that the pursuer was preoccupied as her father was unwell and in hospital. However, the pursuer had little recollection of her interactions with Mr Soper throughout the purchase transaction. She was uncertain about when she met with Mr Soper. In particular, she had little recollection of what took place when they met in August 2012.”

She added: “I am satisfied that Mr Soper met with the pursuer to obtain her instructions on the qualified acceptance and draft letter; that he advised her that there would be no completion certificate for the development at settlement of her purchase; that he advised the pursuer of the implications of there being no such certificate, and that he was instructed to conclude the missives without sending the further missive which he had drafted. I am satisfied that he received clear and informed instructions from the pursuer not to insist upon any such protection. The evidence does not allow me to conclude that Mr Soper failed to discharge his duty of care to the pursuer.”

Considering the position on causation in the event that her first conclusion was wrong, Lady Tait said: “I accept the defenders’ submission that the difficulties encountered stemmed not from the temporary absence of a completion certificate but from the defective building work. It forms no part of the pursuer’s case on record that the defenders ought to be taken to have accepted responsibility for the physical state of the development and subjects. The pursuer’s case relates to the absence of a completion certificate at settlement and absence of alternative contractual protection.”

She concluded: “There was no evidence that the pursuer incurred any costs during the period 31 August 2012 to 30 January 2013 or subsequently which were attributable to the lack of a completion certificate. Any losses suffered by the pursuer as a result of completing the purchase arose from risks which, objectively, it was no part of the defenders’ duty to protect the pursuer against. Therefore the losses claimed by the pursuer do not fall within the scope of the defenders’ duties. There is not a sufficient nexus between any breach of duty on the part of the defenders and the losses claimed by the pursuer.”

Decree of absolvitor was therefore granted in favour of the defenders.