Professional Negligence

Hugh Cameron & Alice Mary Steuart Cameron v. Hughes Dowdall [2008] CSOH NUMBER151

Wed, 29 Oct 2008 10:12:00 GMT

Debate:- In this action, the pursuers sought damages in respect of alleged professional negligence by the defenders, a firm of solicitors, whom, it is claimed, negligently omitted to incorporate certain terms into a sale and purchase agreement and a related contract of service. The contract giving rise to the claim was concluded on 11 July 1989, the claim was intimated on behalf of the pursuers on 18 September 1990 and a summons was served on the defenders on 7 July 1994. Here a debate took place on the defenders' minute for dismissal for want of prosecution of the action. Here a detailed chronology was provided on behalf of the defenders and sought to persuade the court that:- (1) there had been both inordinate and inexcusable delay; and (2) there was an element of unfairness having regard to the particular circumstances of the delay. It was submitted on behalf of the pursuers that there had not been inexcusable delay in the case, and the period of delay must be looked at as a whole as to do otherwise would suggest that a short period of inexcusable delay tainted the whole period. Here the court considered the various distinct periods of time in the case to deteremine whether there had been inordinate and inexcusable delay, resulting in an added element of unfairness to the defenders specific to the factual context of the case.

CHRYSALIS SCOTLAND LIMITED v CLYDESDALE BANK INSURANCE BROKERS LIMITED [2008] CSOH 144

Thu, 16 Oct 2008 12:31:00 GMT

Action for damages for professional negligence. Advice, on an investment, had been given to the pursuers by a finance planning manager employed by the defenders. The investment amounted to one million pounds. The advice was to invest in Clerical Medical Premier Offshore with Profits Bond. Disputed, whether the defenders failed to advise of the possibility of a Market Value Adjustment ('MVA') being applied, were the Bond to be cashed earlier than 2012. Whether the defenders failed to mitigate their loss by encashing the bond on realisation of the existence of the MVA. Whether there had been contributory negligence on the ground that the pursuer should have read documents of advice following direct advice from the defenders. Defenders held liabile with no contribution by the pursuer. Award calculated as the difference between the amount realised on encashment and the sum they would have obtained at that date had they placed sum in a deposit.

June Greenhorn (A.P.) v. South Glasgow University Hospital Trust [2008] CSOH 128

Tue, 09 Sep 2008 18:20:00 GMT

Proof:- The pursuer underwent a hysterectomy in December 1994 and thereafter developed symptoms of incontinence, for which she received extensive medical treatment. On 26 August 1999 in the course of an operation she suffered serious blood loss, which ceased only after pelvic vessel embolisation had been carried out following an emergency angiography which had revealed leakage of blood from a branch of the right iliac artery. In this action the pursuer claimed that her blood loss was caused by uncontrollable haemorrhage from the branch of the right iliac artery due to one of the doctors who performed the operation having damaged the right ileopectineal vessels as a result of having negligently inserted sutures near those vessels and too laterally deep in the right pelvis and the blood loss resulted in a neurological injury. Here the court applied the test for medical negligence, namely, whether the doctor in question was guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care, and in particular whether Dr Lingam was professionally negligent in her performance of the colposuspension.

Peter Alexander Hope Matthews v. Hunter and Robertson Limited [2007] CSOH 88

Wed, 11 Jun 2008 13:34:00 GMT

Procedure Roll:- The pursuer in this action was the executor nominate of Isabella Urquhart who died on 22 October 2005. As a firm of solicitors the defenders succeeded to the liabilities of the former partnership of Hunter & Robertson. In this action the pursuer sought damages as executor of the deceased, and contended that he had suffered loss and damage as a result of the negligence of the defenders' predecessors'. In 1975, the deceased and Mr Urquhart decided to separate and they agreed that the deceased would purchase Mr Urquhart's one half share in their home. In the disposition prepared by the defenders' predecessors in terms of the dispositive clause, Mr Urquhart disponed his "whole right, title and interest, present and future, in and to the said one half share pro indiviso of the said subjects". No steps were taken to evacuate the survivorship destination in respect of the deceased's one half share of the subjects and no advice was given by the defenders' predecessors to the deceased to the effect that such steps were necessary, if the deceased did not wish her share of the subjects to pass to Mr Urquhart in the event of her death. In consequence of the unevacuated survivorship destination, a one half pro indiviso share of the subjects did not vest in the pursuer, who was appointed the deceased's executor in 2003 following her death, by virtue of sections 14(1) and 36(2)(a) of the Succession (Scotland) Act 1964. As a consequence a one half pro indiviso share of the subjects was transferred directly to Mr Urquhart. In this action the pursuer sought half of the net proceeds after deduction of the costs associated with the sale of the subjects. The defenders denied any negligence. At debate on behalf of the defenders it was submitted that there was an insufficient basis for the pursuers to establish liability on the part of the defenders and challenged the relevancy of the averments that the pursuer had suffered loss.

Michelle Hepburn v. Royal Alexandra Hospital & Another [2008] CSOH 81

Tue, 03 Jun 2008 10:45:00 GMT

Motion for dismissal:- In this minute the defenders sought dismissal of the action on the basis of inordinate and inexcusable delay on the part of the pursuer in proceeding with the action. The pursuer raised a professional negligence action in 1998 against a consultant gynaecologist and a consultant plastic surgeon in connection with a rare congenital condition she suffered from which led to urinary symptoms for which she had sought medical treatment. The action was sisted on 28 May 1998 for further investigation and for a legal aid application to be processed. Nothing was done thereafter by the agents who were at that time instructed and who subsequently withdrew from acting on 21 September 2004. A new firm of solicitors received instructions in November 2004. It was submitted on behalf of the defenders that the delay between 1998 and the end of 2004 was inordinate and inexcusable and the pursuer could not justify it. It was submitted on behalf of the pursuers that the motion should be refused as it was a draconian power of last resort and the newly instructed agents could not be criticised in their actings and had performed satisfactorily since receiving their instructions in November 2004. Here the court considered whether the apparent delay had led to unfairness to the defenders.

Daniel Stalker v. Lothian Health Board [2008] CSOH 77

Fri, 23 May 2008 07:19:00 GMT

Proof - Professional Negligence:- The pursuer, a 51 year old man, was married in 1980 and he and his wife had four children. Following the birth of their fourth child in 1995 the pursuer decided to have a vasectomy. On 7 May 1996 he attended the Family Planning and Well Woman Clinic at 18 Dean Terrace, Edinburgh for a vasectomy under local anaesthetic. In this action the pursuer claimed that in the course of the operation he sustained injury as a result of the professional negligence of the surgeon who was employed by the defenders. The case proceeded to proof and the issue in question was whether the injury suffered by the pursuer during the course of the vasectomy was caused by the professional negligence of the surgeon.

Daniel Stalker v. Lothian Health Board [2008] CSOH 77

Fri, 23 May 2008 07:19:00 GMT

Realstone Limited v. Messrs J & E Shepherd & Others [2008] CSOH 31

Mon, 25 Feb 2008 11:32:00 GMT

Procedure Roll - Relevancy of Pleadings:- This was an action by a developer against chartered surveyors arising out of alleged professional negligence in the preparation of a plan of a plot of ground. The defenders challenged the relevancy of the pursuers' pleadings at debate and sought to have the action dismissed. The pursuers sought to have the defenders' plea to the relevancy repelled. It was submitted on behalf of the defenders that the pursuers had not pleaded a relevant case that the defenders owed them a common law duty of care to avoid financial loss. Counsel on behalf of the pursuers invited the court to repel the defenders' plea-in-law to the relevancy and to allow a proof on the basis that the court could conclude that a duty of care arose in the averred circumstances. Here the court considered whether the action should be dismissed on the relevancy of the pleadings, in particular, whether, even if the pursuers were to prove their record in all material points, the action would nonetheless be bound to fail.

William Henderson & Another v. Chris Sayer, t/a Chris Sayer Solicitors [2007] CSOH 183

Tue, 20 Nov 2007 19:03:00 GMT

Professional Negligence – Procedure Roll:-The defenders acted for the pursuers when the pursuers bought a property known as Lakeside, Torphichan, West Lothian for £793,763 which they intended to live in it after the first pursuer's retirement. The pursuers plead that the solicitor failed to advise them of a burden in the Land Certificate which stated:- "THIRD [the subjects] shall be used as a single dwelling house in all time coming solely for the occupation of one person and his or her family …and said person must be solely or mainly employed in the management and or running of the fish hatchery and sport fishery operated on the planning unit." It was averred that before the conclusion of missives the defender should have advised the pursuers as to the burden on the title and its implications. In particular, that failure to comply with the title burdens would be a breach of planning control, and thus the relevant planning permissions could be revoked. At debate counsel for the defenders submitted that the action should be dismissed. Here the court considered whether the defender was bound to be assoilzied due the irrelevancy of the damages claim.

Petition of Campbell Riddell Breeze Paterson v The Council of the Law Society of Scotland & Henry James Lloyd [2007] CSIH 1

Thu, 04 Jan 2007 00:00:00 GMT

Appeal by way of petition against a decision of the Scottish Solicitors Discipline Tribunal

The Legal Services Centre Limited v. Miller Samuel LLP Others [2006] CSOH 191

Fri, 15 Dec 2006 00:00:00 GMT

Procedure Roll - Prescription

Marilyn Louise McDonald-Grant v. Sutherland & Co & [2006] CSOH 171

Thu, 07 Dec 2006 00:00:00 GMT

Procedure Roll - Professional Negligence