The Perceived Need for Expert Evidence
Expert evidence is a common feature of professional negligence claims throughout the UK. In Scotland (in contrast to south of the border) some judges regard it as essential. However, Lord Sandison's recent judgment in Cockburn v Hope [2024] CSOH 69 casts doubt on whether expert evidence is quite as crucial in all cases as some Scots lawyers might expect.
The case arose out of an action for payment of £350,000 raised against a judicial factor for alleged negligence in the administration of the pursuer's father's estate. The sum claimed was said to be the diminution in value of the estate as a consequence of the defender's alleged failings. One of the defender's key submissions was that it was not permissible in Scotland (to the extent that it amounted to an abuse of process) to maintain an allegation of professional negligence without a supportive independent expert report. As the pursuer had produced no such report, the action ought to be dismissed. The defender relied primarily on two cases - the decision of the Inner House in JD v Lothian Health Board [2017] CSIH 27 and Lord Woolman's decision in Tods Murray WS v Arakin [2010] CSOH 90.
Lord Sandison's Analysis
Lord Sandison started by making it clear that he was entirely unconvinced that every allegation of professional negligence, regardless of its character, required to be supported by a suitable expert report. All that a court needs to decide whether the test in Hunter v Hanley [1955] SC 200 is met, is sufficient material before it to answer the questions of fact and law which are raised by the parties. That may in some cases involve expert evidence. For example, where there are scientific or technical disputes outwith the knowledge and understanding of the court, expert evidence may be essential. But where the subject matter is less technical or within the court's own sphere of knowledge, then that is a different story. The critical question was: does the act or decision being criticised differ in any relevant respect from the kind of acts or decisions which have routinely to be made in many other fields of human activity? If the answer to that is no, then expert evidence may be lacking in value or, even, inadmissible.
Lord Sandison acknowledged that he was relying quite heavily on the position as it has been formulated by the Court of Appeal in England but, pointed out that "given that the judicial function being performed in this respect is the same there as here, it is a rather unsatisfactory response…simply, in effect, to say that England is another country and they do things differently there". Accordingly, he was unpersuaded that the position in respect of when expert evidence is required was any different north and south of the border.
The only judgment of the Inner House which the defender was able to point to (the JD decision) was a complex medical negligence claim arising out of allegations of misdiagnosis. However, even in that case, the court had only gone as far as to say that parties should lodge an expert report if expert evidence was required. The commercial court cases referred to (in particular the Arakin decision) had to be looked at contextually. That was a long running case with a "tortuous procedural history" and the fact that the court had dismissed the defender's counterclaim as an abuse of process was, according to Lord Sandison, just as likely to have occurred whether an expert report had been lodged or not. It was not authority for the view that an expert report was required in every case.
Lord Sandison did acknowledge that more recently, other commercial judges, had suggested that expert evidence was always required but he was unconvinced that the position was any different from England and pointed out that in the English case of Levicom International Holdings BV v Linklaters [2010] EWCA Civ 494 at least two members of the Court of Appeal had reached their own conclusions on the question of negligence without any expert evidence having been led. The English position was, as far as Lord Sandison was concerned, one which ought to apply in Scotland as well. The defender was, therefore, wrong to suggest that pursuing the case without an expert report should lead to its dismissal and it could certainly not be taken to be an abuse of process.
What that means for Expert Evidence in Scotland?
For litigators and clients in Scotland, this judgment may lead to a few difficult decisions. Experts can, undoubtedly, be expensive and expert evidence is time consuming. Lord Sandison, speaking extra-judicially has previously spoken positively about the appointment of Assessors under Rule 12 of the Court of Session Rules to effectively summarise and advise the Court on the different expert arguments, even in more scientific or technical cases. So, it perhaps is not surprising that he is seeking to reduce the areas in which experts are required in professional negligence cases, particularly where the subject matter in dispute is within the knowledge of the Court. Claims arising out of professional negligence by solicitors is one obvious example of an area in which the Court, if provided with appropriate guidance by those appearing before it, may be able to reach a conclusion (in some cases at least) without the need for an expert.
Some caution will be required. First, Lord Sandison, and other commercial court judges do not, at least, appear to be of one mind on the issue which might make parties' approach in the commercial court rather judge dependent! Secondly, there is no real guidance from the Inner House other than in the JD decision and, as Lord Sandison pointed out, nothing in that judgment definitively answers the question. Thirdly, even if Lord Sandison's view is one which is upheld by a higher court or becomes the predominant one in the commercial court, where is the line to be drawn between when an expert is required and when one is not? That will be a difficult decision for solicitors, and it will be a brave one who, at the moment, decides to pursue any remotely complicated professional negligence claim without an expert.
However, it has the potential to be a positive development in this area for any client with a professional negligence claim in Scotland. From a lawyers' point of view, harmonisation of commercial law between Scotland and England is (usually) a good thing and clients forum shopping down south because the English courts have more favourable rules on expert evidence would be a bad thing for Scotland. Further, often the predominant cost in getting a professional negligence claim off the ground is an expert report. In less complex matters it would be helpful to practitioners and clients alike if they could raise such actions without going to the time and expense of getting one.
