The expert report is dead, long live the expert report

Professional indemnity specialists Lindsay Ogunyemi and Iain Franklin comment on expert evidence in claims against Scottish solicitors and share their experience of instructing solicitor experts.

For any professional, receiving a claim from a client is a difficult and upsetting experience. Solicitors may feel this particularly keenly, given the possible reputational consequences of a formal finding of negligence. Actions for professional negligence are complex and nuanced, so it follows that they often involve instruction of an expert.

This article focuses on the input a solicitor instructed as an expert (in Scotland, properly referred to as a skilled witness) may have in an action for professional negligence against a solicitor. We first consider the test applied by the courts in considering professional negligence. Then, we briefly review whether a report is required at all. Finally, we look at the duties of an expert and the material they are likely to rely upon.

The test

When professional negligence claims are made against Scottish solicitors, a pursuer generally requires to establish their claim with reference to the tripartite test set out in Hunter v Hanley (1955 SC 200). This test requires:

• the identification of a usual and normal practice;
• proof the defender has not adopted that practice; and
• evidence that the course adopted is one which no professional of ordinary skill would have taken if acting with reasonable care.

Is a report required?

In Tods Murray W.S. v Arakin Limited ([2010] CSOH 90) Lord Woolman was clear: an allegation of professional negligence against a solicitor must “…always be buttressed by a report from an appropriate witness, which states that the course taken was one that no solicitor exercising ordinary skill and care would have taken”.

More recently, however, this view has come to be questioned. In Cockburn v Hope ([2024] CSOH 69) Lord Sandison reached the conclusion that expert evidence may well be unnecessary where the question being asked is essentially one of what reasonable decisions or courses of action were or were not open to the defender in the circumstances. Essentially, is the issue one which the court could be expected to understand without needing further assistance from an expert? Lord Sandison viewed such a situation as perhaps most frequently arising in professional negligence claims against solicitors or advocates, given the legal training of the judge hearing the action.

A final resolution as to how the Scottish courts will approach the production of expert evidence in claims against solicitors is yet to be reached and is likely to require the intervention of the Inner House. However, what is clear is that the comments made in Cockburn are driving practice: we now see more claims where agents for pursuers suggest that no expert report is necessary. It will, though, be a bold pursuer who proceeds to proof without expert support, particularly if expert evidence is produced on behalf of the defender.

When assessing a claim made against a solicitor, we seek to understand how a court is likely to measure their conduct against the Hunter v Hanley test. In order to do so we instruct a range of experts from various disciplines. It is not necessary for a solicitor proffering an expert opinion to have any particular accreditation. Rather, they require to be able to illustrate to the court that they have sufficient training and experience to give expert evidence (Kennedy v Cordia [2016] UKSC 6, para 42).

In many cases the expert best placed to comment on the practice of ordinarily competent solicitors is someone with extensive practical experience. The key is that the expert understands that their duty is to the court. They are not a fact finder, and their opinion evidence is admissible to assist the court in reaching its own conclusions. The court will attach the most weight to expert evidence which is obviously independent and untainted by bias.

An expert should not advocate for the party they have been instructed by. They should also justify and explain their conclusions rather than simply give an oracular pronouncement of them. The expert must also guard against opining on matters beyond the scope of their role, such as the scope (or existence) of a duty of care or whether the pursuer is advancing a truthful account of events.

Expert material

The primary source of contemporaneous evidence that an expert will rely upon is the solicitor’s file. It is therefore important that the file is kept in good order and provides a comprehensive record of the advice given and the reasoning underpinning that advice.

Meetings with clients should be recorded in a file note or in some other form which shows the advice imparted. If no record is kept the only thing a solicitor can do is give evidence of their usual practice, but this is likely to be accorded significantly less weight by the court than a contemporaneous record.

Additionally, an expert should have regard to other sources which show the ordinary practice adopted in the area of law under consideration. Textbooks such as Conveyancing Practice in Scotland or Drafting Wills in Scotland can be used to show practice across the profession. Even guidance from the Law Society of Scotland or relatively informal sources such as seminars given by practitioners can show the profession’s understanding of its duties.

The expert will also need to understand the thinking of the practitioner who undertook the work that is criticised. A detailed precognition or witness statement is invaluable in allowing the expert to understand the practitioner’s approach.

Conclusion

Facing a claim is a stressful experience. Solicitors can make it easier by ensuring that good records are kept of the advice given to clients and that the rationale for that advice is clear. With the move to electronic working, files tend to be less full than might have previously been the case. To counter this, solicitors must think carefully about how their advice can be preserved.

While it may not be strictly necessary for expert evidence to be obtained when a claim is made, we expect it to be a regular feature of claims against solicitors for the foreseeable future.

Written by Lindsay Ogunyemi, a partner at Beale & Company Solicitors, and Iain Franklin, a senior associate. Both specialise in defending professional negligence claims against professionals including solicitors.