Janette Hamilton v Campbell Smith LLP

Edinburgh Sheriff Court

12 January 2016

Experts disagree on the extent of a solicitor’s duty of care when instructed by a client to draft a will. Sheriff O’Grady notes that he is bound by the approach set down in Hannigan v Lanarkshire Acute Hospital NHS Trust (2012) CSOH 152, that is when presented with differing expert opinion, the court is not in a position of choosing between experts unless the situation is truly exceptional. 

Background

The Pursuer in this case, a disappointed beneficiary, alleged that the Defender had been negligent in failing to check that her late Aunt had title to the property that she purported to bequeath to her in her final will.

In 2004, Mrs Novak instructed the Defender to draft an updated will. She provided clear and unequivocal instructions to the Defender to include a bequest of her whole right, title and interest in the property to the Pursuer, her niece. Unbeknown to the Defender solicitor taking the instructions, Mrs Novak had in fact disponed the property to herself and a different niece ”equally between us and to the survivor of us” four years earlier. As such the 2004 bequest to the Pursuer failed.  The survivorship destination in the disposition could have been evacuated by declaration in the will being made under section 30 of the Succession (Scotland) Act 1969.

The Pursuer alleged that the Defender had a duty to check the title deeds to the property (which were in the Defender’s title safe) prior to drafting the will. She alleged that the Defender’s failure to do so was negligent and caused her to lose a one half share in the property.

Comment

The Pursuer led evidence from experts Professor Robert Rennie of Harper MacLeod and Graham Scott of Morton Fraser. The Defender sought to rely on evidence from Donald Reid, Mitchells Roberton. All three experts agreed that there is no absolute duty on a solicitor to check title deeds and accepted that the situation was “fact specific”. There is no case authority on this point.

The experts expressed a range of professional opinion on the practice that would have been adopted by an ordinarily competent solicitor in 2004 had he been acting with ordinary care. Professor Rennie was of the clear view that, in the circumstances, the Defender did have a duty to check the title deeds to the property. The deceased had advised the Defender that there was no mortgage over the property, the inference being that the title deeds were available. A check ought to have been carried out.

Donald Reid disagreed with Professor Rennie. A solicitor is entitled to rely on the information provided by the client. He does not have a duty to cross examine the client for additional information. If a client provides clear and unequivocal instructions, there is no rule of law or practice which requires a solicitor to check title. Mr Reid acknowledged that there are circumstances where further enquiries should be undertaken, for example where the client appears uncertain of the title position. Donald Reid did not consider that there were any circumstances in the present case which would have alerted the Defender to the necessity of checking title.

Sheriff O’Grady held that, based on the evidence, the Pursuer had failed to meet the three stage test set out in Hunter v Hanley 1955 SC 200.  He noted that he was bound to adopt the approach to expert evidence outlined in Hannigan. Mr Reid was of the clear view that the practice and procedure adopted by the Defender was not only unremarkable but was, in his experience, the practice adopted by most solicitors and indeed the practice adopted by him. Sheriff O’Grady could not regard Donald Reid’s evidence as illogical or irrational. It was not his role to prefer one expert's view over another. In view of Donald Reid’s evidence, he was not satisfied that, in failing to check the title deeds, the Defender adopted a course which no professional man of ordinary skill and care would have taken if he had been acting with ordinary care.

The case serves as a reminder that the test for professional negligence is a high one.  It also reminds us that where there are differing opinions regarding standard practice in a particular area, it is not for the court to prefer the evidence of one expert over another.  As articulated in Hannigan,an expert’s view can only be rejected if the court is satisfied that it is irrational and illogical.