A professional negligence claim against a firm of solicitors, based on their allegedly having failed to give appropriate advice regarding survivorship destinations on the transfer of a property, has been held to have prescribed as time started to run when the disposition was signed, even though it was years later before the pursuer knew he had a potential ground of claim.
Sheriff Alastair Thornton gave the decision at Kirkcaldy Sheriff Court in granting absolvitor to the defenders, the firm of W & A S Bruce and its partners, in an action brought by Ian Ford.
The pursuer had instructed the defenders in 2000 to transfer the title of a house he owned into the joint names of himself and his then fiancée. He averred that he made the defenders aware that he anticipated that if his wife-to-be predeceased him, her share would revert to him. The disposition was completed and registered in October 2000. When his wife died in July 2013, it transpired that rather than provide for such a reversion, her will left the pursuer a liferent of the property, which would pass on his death to her children from a previous relationship. The loss claimed was the pursuer's failure to regain ownership.
He further averred that the defenders negligently failed to advise him as to the possibility of the title including a survivorship destination, and the advantages and disadvantages, which (it was said) was standard practice at the time; in any event had he been made aware of the possibility, he would have elected to do so. The defenders denied they had been at fault, and further pleaded that on the pursuer's averments any negligence occurred in 2000, but the action was not raised until 2018.
For the pursuer it was argued that his loss only crystallised on his wife's death, when her will became operative; until then she could have provided that her share would revert to him. Until he learned of the terms of the will, he was not aware, nor could he reasonably have become aware, of the negligence he alleged. His loss was unquantifiable until his wife's death; the defenders' approach would require prescription to run before there was any “real world” consequence.
Sheriff Thornton noted that previous cases had recognised that a pursuer might not appreciate that a wrong had occurred until a time far removed from when loss was suffered. Although, by statute, in the case of latent physical damage time did not start to run until the creditor became aware of the damage, the situation was different in cases of alleged professional negligence where a client ended up with less in the way of rights than they would have but for the breach – even where there was a possibility that voluntary steps by a third party might remedy, cancel or mitigate the amount of the loss.
He concluded: “In my opinion, on a proper analysis, the pursuer suffered loss immediately he conveyed a one-half pro indiviso share of his property to his fiancée... it is self-evident that what the pursuer obtained in consequence of that conveyance was less than he ought to have got had the defenders duly performed the duties he claims were incumbent upon them... That loss was actual, not merely contingent or potential. He was deprived of a right or entitlement which on his averments he ought to have obtained.”
The result might appear harsh, but the law would be changed when the Prescription (Scotland) Act 2018 was brought into force.
However, the running of the time bar period did not depend on the pursuer's awareness of the defenders' fault, and the case would in any event be bound to fail even if the pursuer proved all that he averred.