Peter Alexander Hope Matthews V. Hunter And Robertson Limited
| Jurisdiction | Scotland |
| Judge | Lord Brodie |
| Neutral Citation | [2008] CSOH 88 |
| Docket Number | A168/07 |
| Court | Court of Session |
| Date | 11 June 2008 |
| Published date | 11 June 2008 |
| OUTER HOUSE, COURT OF SESSION [2008] CSOH 88 | |
| A168/07 | OPINION OF LORD BRODIE in the cause PETER ALEXANDER HOPE MATTHEWS Pursuer; against HUNTER & ROBERTSON LIMITED Defenders: ________________ |
Pursuer: Calum MacNeill, QC; Anderson Strathern
Defenders: Jones, Solicitor-Advocate; BTO
11 June 2008
Introduction
Parties
[1] The late Isabella Urquhart (the "deceased") died on 22 October 2005. The pursuer in this action is her executor nominate who was appointed in terms of a will dated 8 May 2003 and registered in the Books of Council and Session on 28 October 2005. The defenders are a limited company, carrying on business as solicitors, who have succeeded to the liabilities of the former partnership of Hunter & Robertson, solicitors.
Averments
[2] The pursuer sues for damages in respect of the alleged negligence of the defenders' predecessors on the basis of averments to the following effect. The deceased was formerly married to Robert Gordon Urquhart. In 1969, the deceased and Mr Urquhart purchased the subjects known as 2 Rosshall Avenue, Paisley ("the subjects"). The disposition of the subjects (the "Disposition") was granted to Mr Urquhart and the deceased and to the survivor of them. On a date between 1969 and 1975 the deceased and Mr Urquhart separated. In 1975, they agreed that the deceased would purchase Mr Urquhart's one half share in the subjects. It was both parties' intention that the deceased should become the sole owner of the subjects and that Mr Urquhart should retain no rights in it. The deceased instructed the defenders' predecessors in connection with that purchase. The defenders' predecessors obtained the title deeds of the subjects, including the Disposition granted in favour of Mr Urquhart and the deceased. They prepared a disposition. This was granted by Mr Urquhart in favour of the deceased. In terms of the dispositive clause, Mr Urquhart disponed his "whole right, title and interest, present and future, in and to the said one half share pro indiviso of the said subjects". That disposition was made in consideration of the sum of £3,277.24 paid by the deceased to Mr Urquhart, which was one half of the value of the subjects at the time. It was executed by Mr Urquhart on 10 October, 1975. No steps were taken to evacuate the survivorship destination in respect of the deceased's one half share of the subjects. No advice was given by the defenders' predecessors to the deceased to the effect that such steps were necessary, if the deceased did not wish her share of the subjects to pass to Mr Urquhart in the event of her death. No advice was given by the defenders' predecessors to the deceased as to the consequences that might ensue if such steps were not taken. Had such advice been given, the deceased would have instructed the defenders' predecessors to evacuate the survivorship clause in the Disposition. The marriage between the deceased and Mr Urquhart was dissolved by decree of divorce on 2 July 1981. The only child of the marriage predeceased them without issue. The deceased executed a will on 8 May 2003. She appointed the pursuer as her executor. The will did not evacuate the special destination in the Disposition, as it might have done by specific reference to the destination in the will: Succession (Scotland) Act 1964 section 30. The deceased directed that the residue of her estate be divided equally between three charities. In consequence of the unevacuated survivorship destination, a one half pro indiviso share of the subjects did not vest in the pursuer as executor by virtue of sections 14(1) and 36(2)(a) of the Succession (Scotland) Act 1964. Rather, it passed directly to Mr Urquhart.
[3] It is the pursuer's contention that he, as executor of the deceased, has accordingly suffered loss and damage as a result of the negligence of the defenders' predecessors' negligence. The one half share of the subjects transferred by operation of the survivorship destination did not vest in him, whereas had the survivorship destination been evacuated, it would have done. Accordingly, the estate vested in the pursuer arising from the deceased's ownership of the subjects was worth less than it should have been. The subjects were sold by the pursuer following confirmation. The price achieved was £171,280. The pursuer was under an obligation to pay to Mr Urquhart one half of the net proceeds after deduction of the costs associated with the sale. It is this sum for which the pursuer sues.
[4] The defenders deny negligence on the part of their predecessors. They aver that there has been no loss to the deceased's estate. Any loss that has been sustained has been sustained by the beneficiaries. In any event, the defenders aver that such loss that has been caused was caused or at least materially contributed to by fault on the part of the solicitors who accepted instructions to advise the deceased on the preparation of her will in 2003. These solicitors proceeded without checking the terms of the title to the subjects.
Representation and issue
[5] The case called before me for debate on Procedure Roll on 18 October 2007. The pursuer was represented by Mr Calum MacNeill, QC. The defenders were represented by Mr Jones, solicitor-advocate. I heard a debate over two days.
[6] Mr Jones' motion was to uphold his second plea to the relevancy of the action for dismissal. Mr MacNeill moved me to allow proof before answer, with all pleas left standing.
Submissions
Defenders
[7] Mr Jones explained that the issue was whether the defenders' predecessors had ever owed the duty of care which was relied on by the pursuer in the action. The duty founded on was not a duty which had been owed to the deceased. The defenders could not take issue with the proposition that there had been a duty of reasonable care owed by the defenders' predecessors to the deceased, both in contract and in delict, although if that had been the duty founded on by the pursuer in this action questions would arise as to the prescription of any right of action following upon its breach. What the pursuer relied on here (and Mr MacNeill intervened at this point to confirm that this was so) was a duty owed to the estate of the deceased, in delict not in contract, and, accordingly, to anyone who came to be confirmed as her executor.
[8] Put shortly, Mr Jones' submission was that the law did not recognise such a duty. In elaborating this submission he first looked at the duty of care in advising a client on testamentary provision and cases where that duty had been founded on subsequent to the death of the client. He then considered the requirements of the existence of a duty owed by a solicitor to persons other than his client with a view to contending that in the present circumstances these requirements were not met. Mr Jones concluded by considering the position as to loss. Here, he submitted, the pursuer had failed relevantly to aver that he had sustained any loss.
[9] Mr Jones began his consideration of the relevance of the duty of care admittedly owed to the deceased by noting that in Scotland any right to sue in respect of breach of such a duty vests in an executor as part of the estate of the deceased (provided the breach has resulted in loss to the deceased and irrespective whether the action is based in contract or delict). The position is slightly different in England. There, where a solicitor acts negligently towards his client during the latter's lifetime, any cause of action which the client has at the time of his death vests in the client's estate under the Law Reform (Miscellaneous Provisions) Act 1934, section 1, but this will only be the case where the solicitor's liability was in contract as opposed to tort because whereas a cause of action in respect of breach of contract arises as at the date of breach, at least for nominal damages, a tort action for negligence only arises when loss is suffered. Accordingly where a solicitor's negligence is only actionable in tort and causes loss only to the client's estate there is no course of action to transmit: Clerk & Lindsell on Tort 19th Edition, 2006 para. 10-102. Mr Jones then turned to cases where, as a result of a breach of contract by reason of a solicitor advising a testator failing to take reasonable care, a claim had been allowed after the testator's death. In Otter v Church [1953] Ch 280 there had been a failure to advise the deceased to disentail a property. Upjohn J had preferred the analysis that during his lifetime the deceased had a claim, albeit that the damages would have been nominal. On death the quantum of those damages increased as a result of the property being lost to the estate but there the executrix had been pursuing what had been the deceased's claim not a claim in her own right. Otter was approved by the Court of Appeal in Corbett v Bond Pearce (A Firm) [2001] 3 All ER 379 which again was a case where the obligations founded upon by the personal representative (in contract and tort) had been owed to the testatrix and were being sued on as such. In Carr-Glynn v Frearsons (A Firm) [1999] Ch 326 the Court of Appeal found that solicitors preparing a will could be liable for breach of duty to a beneficiary in a case where there was also a claim available to the estate by reason of a breach of duty owed to the testator (the possibility of a duty being owed to a beneficiary by a solicitor retained to prepare a testator's will having been established in White v Jones [1995] 2 AC 207). Carr-Glynn was distinguishable on its facts from the present case because it concerned the preparation of a will and the subsequent failure to sever a joint tenancy. The court's comments in Carr-Glynn (supra at 337 to 339) regarding the personal representatives claiming for loss to "other persons interested in the estate" must be read in their context. It is clear that the breach of duty upon which such an action could be based was breach of the duty owed to the...
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