Professional negligence claims- do I really need an expert report?
Litigators often get themselves tied in knots when it comes to the instruction of an expert report- who to instruct and at what stage.
But what happens when, either by oversight or omission, no such report is lodged in the first place? The recent case of Cockburn -v- Hope [2024] CSOH 69 deals with that very issue in the context of allegations of purported professional negligence, resulting in a damages claim
Background
The pursuer was the daughter of the deceased, Mr Scott Cockburn. Mr Cockburn’s sister Tracy Cockburn and latterly his brother Steven Cockburn were appointed executors. Concerns were raised over the conduct of Steven Cockburn as executor, resulting in the defender being appointed judicial factor in March 2016.
In the case, the pursuer sought payment from the defender, of ￡350,000 (being the devaluation of the estate), or alternatively ￡50,000 (being the value of the pursuer’s pro rata-d share in the estate, both pursuant to the defender’s alleged negligence.
In particular, the pursuer alleged that the defender had failed to act appropriately in dealing with the conduct of either Steven Cockburn, or other directors of the company involved, had caused the devaluation of company property, ?a liability for unfair dismissal in it and generally failed to take reasonable steps to preserve the value of the estate.
No expert report, no case?
It was argued on behalf of the defender that the pursuer’s claim was based on allegations of professional negligence and alleged losses sustained in consequence of her fault and negligence.
Any allegations of such nature could, the defender averred, only hold water where they were supported by a corresponding expert report. In doing so, she relied on Tods Murray WS -v- Arakin Ltd [2010] CSOH 90, which stated that “allegations of professional negligence require to have a proper foundation… The allegation must always be buttressed by a report from an appropriate witness…” and “an abuse of process may occur if a case ‘wastefully occupied the time and resources of the court in a claim that was obviously without merit”. That might risk a party using (or indeed, abusing) the court process to “air his own unfounded complaints…”
There were no exceptions to this, said the defender, unless in cases? where the position was so obvious that no report could sensibly be thought necessary. The defender considered that the case did not fall within such an exception as matters of the defender’s judgment were being put under scrutiny. On that basis, the absence of such a report was fatal to the pursuer’s case.
In response, the pursuer elaborated on the factual allegations against the defender and, relying on Judicial Factors Act 1849, submitted that the conduct of the defender of itself meant that an expert report was unnecessary.
领英推荐
The purpose of an expert report
Lord Sandison did not accept the general principle that an expert report must be produced in every case of professional negligence. He noted that the function of any expert report was to “furnish the court with material to enable it to answer questions of fact and law”, including per the test set out in Hunter -v- Hanley 1955 SC 200. That will invariably, but not inevitably involve the commission of an expert. Cases of specialist scientific or technical nature are good examples of those cases which are generally outwith the knowledge and understanding of the court.
On the other hand, the potential scope of professional negligence allegations is broad, ranging from those arising from specialists fields, to “decision making in more mundane settings”. In the case of the later, it may well be apt for the court to determine the issue without expert assistance (Saif Ali -v- Sydney Mitchell & Co [1980] AC 198).
The court further considered the case of JD -v- Lothian Health Board [2017] CSIH 27 2018, a complex medical case concerning alleged misdiagnosis where it was noted that an expert report should have been lodged if an expert was being lead in evidence. The question before the court in that case was whether, in the absence of such a report, the case as pled could have any proper foundation, bearing in mind Hunter -v- Hanley. The provision of an expert report was one (but not the only, or indeed necessary) mechanism through which pleadings could be relevant. Whether such a report was necessary depended on the factual circumstances of each individual case.
Absence of an expert report “begs”, not “answers” the question
Viewed through that lens, Tods Murray WS was decided on its own facts, which also included an “extended and tortuous” history. ?In circumstances where allegations were “random”, the absence of an expert report was symptomatic of a lack of merit, rather than, of itself, determinative. In short, the absence of an expert report “begs”, rather than “answers” the question of whether the Hunter -v- Hanley test can be met.
The court opined that, had it been necessary to do so, it would have concluded that the present case was one in which an expert report was not necessarily required.
The discussion on expert reports did, in any event, become redundant, albeit informative in this case, as the court then went on to find that it did not consider the case to turn on any notion of professional negligence.? Judicial factor was an office to which an individual (often but not exclusively a solicitor) was appointed. An individual fulfilling such a role was doing so in his or her capacity as office holder, and not the duties relative to their own profession.
?What does this mean for practitioners?
Each case inevitably turns on its own facts. That is the starting point for practitioners. In Cockburn, the pursuer was a party litigant. That may or may not assist in explaining the ?absence of a report and resultant melee in the first place.
Firstly, Cockburn identifies the function of any expert report as central to the question of whether one is necessary in the first place. There will be circumstances (both in a legal and non legal setting) where a court can be expected to understand the relevant background, and doesn’t need further evidence; which may in such circumstances be lacking in value or even inadmissible. ?Cockburn ?was necessary.
Secondly, and perhaps not surprisingly, the requirement for an expert report is also intrinsically linked to questions of fair notice and pleadings. In Cockburn, the pursuer’s pleadings were described as providing “ample detail” of the alleged breach, which did not need to be supported by an expert report. That sentiment was reflected in JD.
Cockburn may provide litigators with some comfort in removing what might have previously been assumed to be a necessity. ?That said, any decision on whether or not to instruct an expert report will be extremely nuanced and, as always, go hand in hand with fair notice of a relevant case to begin with.