Professional Negligence Scotland 

The Necessity of Expert Reports in Scottish Court Actions involving Professional Negligence: Insights from Cockburn v Hope  

Traditionally, expert evidence has been seen as essential in claims involving professional negligence.  However, the recent ruling provided by Lord Sandison suggests that this may not always be the case. The necessity of expert evidence in court actions, particularly in professional negligence claims, has been a subject of significant discussion. This blog discusses the case of Cockburn v Hope [2024], which provides a pertinent update on this matter.  

Key Takeaways

The Case of Cockburn v Hope 

In this action, the pursuer sought payment from the defender in respect of alleged breaches of duty in the course of her activities as judicial factor on the estate of the pursuer’s father. 

In a case involving an allegation of professional negligence, the court will naturally be tasked with determining whether the test outlined in Hunter v Hanley 1955, has been met. This test requires the Pursuer to demonstrate that the course of action taken by the professional is one that no competent professional of ordinary skill would have taken if acting with ordinary care in the circumstances. 

In Cockburn, the Pursuer proceeded with the case without lodging an expert report in support of their claim for negligence. The Defender argued that pursuing a professional negligence claim in Scotland without a supporting independent expert report constituted an abuse of process. They contended that, since the pursuer had not produced such a report, the action should be dismissed.

An Overview Of The Decision In Cockburn

In Cockburn, Lord Sandison held that the absence of an expert report does not inevitably lead to the dismissal of an action. He opined that the case of JD came nowhere near suggesting that a failure to lodge an expert report would result in a claim being dismissed.

Lord Sandison, drawing on precedents and the context of the case, indicated that while expert evidence is crucial in technical matters beyond the court’s knowledge, it is not always required in less complex scenarios. It held that it is entirely within the capabilities of the court to determine whether the Hunter v Hanley test is met where there is sufficient evidence to answer routine questions of fact and without an expert report.

In instances involving technical and specialised knowledge, expert reports provide the necessary framework for the court to understand professional standards and deviations therefrom. Conversely, in less complex cases, particularly those not concerning the deployment of any specialist field of knowledge, but rather involving questions of decision-making in more mundane settings, the question thrown up for decision may be one in relation to which the court can be expected to understand the relevant background and not to require further assistance in order to determine the issue.

What This Decision Means In Practice

The ruling indicates that expert evidence, while potentially beneficial, may not be mandatory in every case. This is an interesting decision, which, if followed, could lead to a reduction in litigation costs and the simplification of such claims. This decision may allow for a more flexible and pragmatic approach to professional negligence claims in Scotland.

It is important to highlight that professional negligence claims, normally, involve complicated issues and each case should be assessed on its own merits.

How Jones Whyte Can Help You

At Jones Whyte, our professional negligence team is experienced in handling claims of professional negligence for both pursuers and defenders.

If you have a professional negligence claim, our professional advisers are here to help.

Frequently Asked Questions

What is professional negligence in Scotland

Professional negligence occurs when a professional (such as a doctor, dentist, engineer, architect, solicitor, etc) owes a duty of care to their clients or patients, and breaches that duty, causing harm or loss to the client.

This is where our professional advisors at Jones Whyte can assist, providing you with the best possible support and defence tailored to your particular circumstances.

Professional negligence cases

If you have a professional negligence case, it is important to seek professional advice. Not only will our solicitors help you secure the compensation you deserve for your losses. They will also ensure that lessons are learned to prevent others from suffering in the same way you did.

What is classed as professional negligence?

Below are some examples of situations that may be classed as professional negligence:

For more examples or guidance on professional negligence, reach out to our team today by completing our enquiry form here