Matthews v Hunter & Robertson Ltd [2008] ScotCS CSOH

[15] Third, there were no averments of any material facts which might appear to assist the pursuer in establishing the proposition that it would be fair, just and reasonable to impose liability. The circumstances pointed in the opposite direction. The act or omission took place some three decades before the pursuer was appointed. To impose liability upon executors for a breach of duty before the will was even in contemplation was to impose a duty on an undefined class. The imposition of such a duty was unnecessary where the estate may claim for any breach of duty to the deceased or a beneficiary may claim for any breach of duty to him or her. There was no "lacuna" which required to be filled (cf Lord Goff in White v Jones supra at 260). Rather, the comments made in Clarke v Bruce Iance & Co [1988] 1 WLR 881 at pages 888 to 889 applied. To recognise such a duty would be to give rise to potential for conflict between it and that owed to the client. If such a duty were owed to executors it was difficult to see how it could be reconciled with the duty to the client and a possible duty to beneficiaries. Such claims would not be complementary and there would be the real danger of double claims.

[16] Summarising his position in relation to duty, Mr Jones submitted that the principles expressed in Hedley Byrne, Caparo and White v Jones were not authority for the proposition that a solicitor owes a duty in delict to any third party who can establish that but for the solicitor's contractual breach of duty to the client the third party would, or might, have been better off and that this was reasonably foreseeable to the solicitor: Trusted v Clifford Chance [2000] WTLR 1219 at page 1257. The pursuer's pleadings did no more than assert that the executor was a third party who would suffer loss as a result of the defenders' predecessors' acts and omissions and that this was within their "reasonable contemplation". In the circumstances, if the cause proceeded to proof before answer, the pursuer would be bound to fail. If the pursuer intended to maintain that notwithstanding that he was not an executor in 1975, the defenders owed a duty to a potential class of persons that might be appointed as executors-nominate or executors-dative at sometime in the future, the pursuer's pleadings lacked fair notice. There was no authority for the proposition that a party can have a duty of care to a class of persons ex officio and which is not yet in existence or contemplation.

[17] Mr Jones submitted that the pursuer's averments were also irrelevant when considered from the perspective of identification of loss. He emphasised that the pursuer's case was of duty owed to him and loss sustained by him. His pleadings could not be read as advancing a case based upon a breach of duty to the beneficiaries. If the pursuer were to argue that he was pursuing a loss on behalf of the estate arising out of a breach of contractual et separatim delictual duty of care then he had no averments to support such an argument. The averments at page 13 of the Closed Record, that the deceased's estate would suffer loss, and at page 17, that the estate vested in the pursuer was less that it should have been had to be read in context. The context made it clear that the pursuer sought to recover a loss to him and not to the estate. The averment that the estate was worth less than it should have been (page 17 of the Closed Record), thereby occasioning loss to the pursuer, was irrelevant. If that factor created a recoverable loss then had the testator left her estate by will to her former husband there would still have been a loss. The averment at page 17C to D regarding distribution to the beneficiaries was also irrelevant in the context of pursuing a duty owed to the executor. If the pursuer's approach were to be that adopted in Otter v Church then the relevant loss would be the diminution in value of the estate below that intended by the testator and not any loss to the beneficiaries. In Otter v Church the damage sustained by the deceased may have been nominal, prior to death, but it was still sustained. In this case it is implied that no damage was sustained until the death of the deceased (see page 8D). As far as the position after the deceased's death was concerned the pursuer averred no liability to make payment to any beneficiary in respect of any sum which was not under his administration. There was no suggestion of a shortfall in funds to meet liabilities. The pursuer had failed relevantly to aver the loss in respect of which he was suing. For that reason also the action should be dismissed.

Pursuer
[18] Mr MacNeill submitted that there was sufficient averred on record for him to establish a liability on the part of the defenders, as representatives of their predecessors, to compensate the estate of the deceased for the loss caused by the predecessors' fault and negligence. In the circumstances of this case where a client had instructed a solicitor in a transaction, the purpose of which was to dispone to her a one half share of the property of which she was pro indiviso proprietor and where the solicitor had failed in his duty to her to evacuate the special destination which had the potential effect of diminishing this item in her estate, a duty was owed in delict to the client's executor, as her personal representative, to see that the client's instructions were carried out. On a proper analysis of the facts the deceased here had instructed the defenders' predecessors to transfer a one half share of the subjects to her, leaving her husband with no interest in the property. It was averred that there had been a breach of duty in giving the deceased proper advice. It was averred that it was foreseeable that the estate of the deceased would suffer damage in the event that proper advice was not given. What were the potential effects of this breach of duty? That would depend on what happened to the subjects during the deceased's lifetime. For example, they might be sold and disponed to the purchaser. It would also depend on whether the deceased's husband predeceased her. It was Mr MacNeill's position that, notwithstanding the breach of the duty owed to the deceased, there was no loss to her during her life. Accordingly, the only remedy for the loss which emerged on the death of the deceased was an action at the instance of the pursuer: a claim by her estate. There were claims which transferred to an executor on the death of the deceased. But there are also claims, of which this was one, which only arise on the death of the deceased and, accordingly, the claim in such a case is a claim about the estate. Here there was no loss which had been sustained by the deceased during her life. Accordingly this was not a case where the executor could step into the shoes of the deceased.

[19] Agreeing, as he saw it, with Mr Jones, Mr MacNeill submitted that the question was whether there were present in the case the necessary elements for the existence of a duty of care as identified in the decision in Hedley Byrne or the decision in Caparo. As Mr Jones had submitted, one can choose one route or another. It may come to much the same thing. Mr MacNeill submitted that enough had been averred here to establish a duty of care owed to the pursuer whether one adopted the assumption of responsibility to the estate in the person of the executor route, as indicated by Hedley Byrne, or whether one adopted the three part test route set out in Caparo. Under either formulation it must be borne in mind that any client of a solicitor will, in time, decease. Death is not an unforeseeable event. In the event of a client who is infeft in heritage dying there will be an executor appointed. Accordingly, that executor must be regarded as being within the scope of the duty of care owed by the solicitor to act with reasonable care in relation to any assets which, in time, will form part of the estate of the deceased. Accordingly, when considering the question of proximity as between the parties to the contract between solicitor and client and the third party who is the executor, one must have regard to the close proximity as between a client and her executor. In terms of assumption of responsibility, depending on circumstances, a solicitor may be held to have accepted responsibility in relation to particular assets or an entire portfolio of assets. Accordingly, there will be circumstances where the solicitor must face responsibility for these assets being diminished by a negligent act or omission on his part. Accordingly if the executor becomes vested in less than he ought to have been by reason of the negligence of the solicitor, the solicitor requires to face up to that responsibility. Mr MacNeill accepted that the scope of the duty for which he contended was owed to the estate was defined by the instructions given by the client. As there could not be a conflict of interest as between the duty owed to the client and the duty owed to the estate, the precise scope of the duty to the estate is identical to the duty owed to the client.

[20] The alternative formulation to that enunciated in Hedley Byrne was the tripartite test set out in Caparo. Foreseeability of damage was not a difficulty. As far as proximity was concerned, this was not a case of an undefined duty to an innominate class. Rather, it was duty owed to the person who, in due course, would hold the office of executor and who, as such, personified the estate of the deceased. Here, proximity was supported by the facts of the case. The solicitor had been instructed to have the house transferred into the deceased's name with the purpose of preserving and protecting the deceased's assets. The element of reliance had been recognised as not being always necessary and, in particular, as not being necessary in a case, such as White v Jones, where the loss fell on a beneficiary of the deceased. As far as the requirement of the existence of the duty being fair, just and reasonable was concerned, the solicitors had accepted instructions to secure an unqualified title in favour of the deceased, they had failed to take reasonable care and, as a result, the estate of the deceased had been diminished. The consequent loss was the absence of half of the value of the subjects and the consequent frustration of the deceased's wishes in relation to the disposal of her estate. That was a loss of the same sort as is suffered by a disappointed beneficiary (who, on one view, might be said to have lost nothing by reason of the solicitor's negligence). This is a case where a benefit which should have ended up at a particular destination did not do so because of the negligence of the defenders' predecessors.

[21] Mr MacNeill accepted that prescription had a bearing on whether it would be fair just and reasonable to recognise a duty of care and, in particular, if to recognise a duty of care (here to the estate of the deceased) had the result of eliding the effects of prescription of essentially the same claim (here a claim for reparation for breach of the duty of care to the deceased) then that would be a reason not to recognise a separate duty to the estate. However, the period for prescription of an obligation to make reparation for negligence does not begin until the obligation becomes enforceable: Prescription and Limitation (Scotland) Act 1973 sections 6(3) and 7(1). An obligation to make reparation only becomes enforceable on the date when the loss, injury or damage has occurred: 1973 Act section 11 (1). Mr MacNeill accepted that with the registration of the disposition by Mr Urquhart in 1975, no other action being taken, the result of the defenders' predecessors' negligence was that a one half share in the subjects remained outwith the testamentary control of the deceased. However, he stressed that the value of the whole of the subjects in which the deceased was vested, was unimpaired. The deceased had suffered no loss: cf Clerk and Lindsell supra para 10-102, fn 20. Accordingly, there was no enforceable obligation to make reparation. That remained the position until the deceased's death. This was not a case of a right to reparation having prescribed. Rather, the deceased had never had such a right. There was no question of double recovery: cf Jackson & Powell supra, para 11-042.

[22] In England it had been held that a disappointed beneficiary had a cause of action against solicitors whose negligence had had the result that they had been deprived of a benefit which the deceased had intended to confer: White v Jones supra. That right on the part of intended beneficiaries was regarded as complementary to such cause of action as the estate might have, it being of significance that where property has not transmitted to the estate through, for example, failure to sever a joint tenancy (a factual situation not very different from the present case), the court did regard the estate as having suffered loss and as having a remedy against the negligent solicitors: Carr-Glynn v Frearsons supra 326 at 332G, 333G, 335E to 336A and 336H to 338A; Worby & Co v Rosser [2000] PNLR 140 at 144C to E, 147C and 149B to G. Mr MacNeill also mentioned Corbett v Bond Pearce, both in relation to the judgment reported as [2001] 3 All ER 379 and the subsequent judgement reported as [2006] WTLR 967). As is indicated by these cases, the English authorities contemplate the estate being able to sue for diminution in its value or costs that it has required to incur through negligence on the part of the solicitors advising a testator. The analysis that Mr MacNeill proposed was that a solicitor on accepting instructions from a client undertook a duty of care to his estate which, after the client's death, can be enforced by his executor. This he submitted was preferable to the approach which appears to have been taken in England. It may be that in the English cases the notion of nominal damages can act as a bridge as between the loss suffered by the testator and the loss suffered by the estate but in Scotland nominal damages are not recognised. Even in England it is not always the case that a testator who has been in receipt of negligent advice will be held to have suffered loss while in life: Daniels v Thompson [2004] PNLR 33 638. It looks to be an open question in England whether a solicitor owes a duty of care to the "estate" of his client, alongside the duty he owes to the client (the point which counsel for the appellant/claimant applied unsuccessfully to be allowed to take at a late stage in Daniels). In the present case it had been argued on behalf of the defenders that the pursuer had not suffered loss in his capacity of holder of the office of executor. That was to misunderstand the nature of the claim. Here the pursuer was suing to recover a loss that had been suffered by the estate by reason of an asset not becoming part of it.

[23] Mr MacNeill accepted that for his argument to succeed the court required to recognise a duty which had not previously been recognised in Scotland or, at least expressly, in England. However, he relied on Worby and Corbett as examples of cases which recognised liability for loss and damage caused after the death of the deceased. He relied also on Carr-Glynn which can be explained by the fact that a remedy at the instance of the executor would not have benefited the intended beneficiary because an award of pecuniary damages to the executor would have accrued to residue in which the intended beneficiary had no interest. Implicit in that decision is an acceptance that a remedy for the estate would otherwise have been proper in circumstances where there was no loss prior to the death. Mr MacNeill concluded by reiterating that a duty of the nature he contended for had not been articulated in any English case but that either it was implicit or the analysis of the English courts was to say that nominal damages have been sustained by the testator which can be expanded on death. That alternative approach is not one that is available in Scotland.

Defenders' second speech
[24] In a second speech Mr Jones submitted, in the context of consideration as to whether there could be a duty to the "estate" of a deceased, that in principle unless one enjoyed the status of a natural or legal person one could not be owed a duty: Burton v Islington Health Authority [1993] QB 204. There was a risk, in looking at the authorities, in confusing references to a claim by "the estate" with what properly was a claim by the executor in a representative capacity founding on what was a breach of a duty owed to the client, such a claim being one which vests in the executor by virtue of the Succession (Scotland) Act 1964. One should not confuse title and interest to sue with the existence of a separate duty of care.

[25] It was not inevitable, Mr Jones continued, that a person vested in heritage will have an executor. Sequestration may intervene. In 1975 there had been no legal or natural person to whom a duty could have been owed by the defenders' predecessors in respect of the deceased's estate, other than the deceased. Nor had the beneficiaries of that estate been identified. There were accordingly difficulties over proximity and foreseeability which he suggested were insuperable.

[26] The problem in Daniels had been that the pleader had not pled any damage as having occurred prior to death. That is why Otter v Church and Corbett were not referred to. In Worby, the court was not considering the duty owed to the client (supra at 147C), rather simply whether case fell within the ratio of White v Jones. Mr Jones accepted that there are references in Carr-Glynn to a claim by the estate but what was being considered was title to pursue the claim not whether a separate duty was owed. There may be a difference as between cases where there has been a breach of a duty owed to a client and there has been a loss suffered by the client during life and those where there has been no such loss. Mr MacNeill was endeavouring to find a remedy because of what he saw as a lacuna but his suggestion created a number of theoretical difficulties. The duty is averred to have been breached in 1975. Thereafter all manner of things might have happened. The subjects might have been sold in 1976. Would there then be no duty to the estate whereas because the subjects were not sold there is a duty? Is there only a duty where either the testator or her personal representative cannot sue in respect of the duty owed to the testator? It was a relatively radical proposition that a duty comes into existence only where a loss has occurred and another duty (that owed to the testator) cannot be founded on. Normally a duty arises on the occurrence of the relevant circumstances, not some 30 or so years later. The date when the duty arises must be that of the relevant act or omission. The existence of such a duty, parallel to the duty owed to the testator, which only emerges on the testator's death, had no basis in authority.

Discussion
[27] No attack is made on the averments insofar as instructing obligations that were incumbent upon the defenders' predecessors and owed to the deceased. I therefore take it to be relevantly averred that defenders' predecessors were in breach of their contractual obligations to the deceased and, because of the way in which the obligations of a professional adviser are conventionally analysed, negligent by reason of failure properly to discharge the duties owed to their client which were incumbent upon them by reason of their acceptance of their clients' instructions. However, so Mr MacNeill submitted, the deceased suffered no consequential loss (or at least no loss capable of expression in pecuniary terms, which may be the same thing) and accordingly no enforceable obligation to make reparation arose. The position was analogous to that which was being considered by Dyson LJ in Daniels v Thompson supra at 649.

[28] The importance for Mr MacNeill's argument of the proposition that the deceased suffered no loss and therefore never had a right of action is that, if it is accepted that the deceased's estate suffered loss, then it is easier to liken the situation to that described by Lord Goff in White v Jones supra at 259H as the "extraordinary fact" that the only persons who might have a valid claim (in that case the testator and his estate) had suffered no loss, and the only person who has suffered a loss (in that case the disappointed beneficiary) had no claim. Now, in the present case, matters are complicated by questions, understandably not explored in argument, as to whether the disappointed residuary beneficiaries might have a right of action and whether it was an act or omission of the defenders' predecessors as opposed to an act or omission of the solicitors instructed to prepare the deceased's will which was the effective cause of any loss that may have been suffered, but in a case where there is no other effective remedy a court prompted by what Lord Goff described as the impulse to do practical justice is more likely to look favourably on a novel approach, such as that adopted by Mr MacNeill here. In White v Jones Lord Goff considered there to be a lacuna in the law which needed to be filled. The solution was to recognise a duty as being owed, in the circumstances of that case, by the testator's solicitor to the disappointed beneficiary. I took Mr MacNeill to be attempting to tap into the impulse to do justice by emphasising that if his approach were not adopted there would have been loss without a remedy in that the deceased never had a remedy. The other side of that coin, of course, is that if the deceased did have a right of action in reparation then it must almost certainly be taken to have prescribed prior to her death, in terms of section 7 of the 1973 Act. It would be, to say the least, curious if the executor of the deceased had a right of action in circumstances where the deceased had had essentially the same right but lost it due to prescription.

[29] At least for present purposes, I am prepared to accept as correct Mr MacNeill's submission that the deceased never had a right of action against the defenders or their predecessors because the deceased never suffered loss, albeit that I consider that the matter is not free from all difficulty, as is illustrated by the discussion by Dyson LJ in Daniels v Thomson supra of the rule stated in Forster v Outred [1982] 1 WLR 86 and approved in Nykredit Mortgage Bank plc v Edward Erdman Ltd [1997] 1 WLR 1627 at 1630C-G (and see also Johnston Prescription and Limitation, paragraphs 4.31 to 4.64).

[30] According to Mr MacNeill, loss was sustained in consequence of the defenders' predecessors' negligence only when the deceased died and it no longer became possible to evacuate the special destination in favour of her former husband with the result that the estate vesting in the pursuer as executor and available for distribution to, inter alia, her residuary legatees, was diminished by one half of the value of the subjects. Each of the three charities which are the objects of bequests of residue in the deceased's will are the poorer by some £25,000 as a result of the defenders' predecessors' failure properly to discharge their duties to the deceased some 30 years (a passage of time repeatedly referred to by Mr Jones on behalf of the defenders) prior to her death. Mr MacNeill says that this is a loss and that the pursuer can sue in respect of it, notwithstanding the passage of time and such events as have intervened, including the making of the deceased's will (and the opportunity which that gave to evacuate the special destination) in 2003. The pursuer sues not in respect of breach of duty owed to the deceased or to the beneficiaries under the will (who of course had not been identified at the date of the alleged negligence) but in respect of breach of a duty owed to the deceased's "estate". Accordingly, on Mr MacNeill's analysis, the defenders' predecessors, when accepting instructions from the deceased, undertook a duty of care to her estate which, after the deceased's death could be enforced by her executor. Here Mr MacNeill does not invite the court to look at matters from the perspective of the pursuer as administrator or as representative of the deceased or as representative of the legatees. Rather the pursuer sues, if I understand the argument, as the embodiment in a natural person of the entity which is the post mortem estate of the deceased. That estate suffered loss by reason of it amounting to less than would have been the case had the defenders' predecessors not been negligent in their carrying out of the deceased's instructions. That loss, he goes on to argue, is recoverable in an action based, not on breach of the duties owed to the deceased, but on parallel and identical, but separate, duties owed by the defenders' predecessors to the deceased's estate on death. These propositions are nothing if not bold. In both Scotland and England the courts have been prepared to contemplate a solicitor coming under duties of care owed not simply to his client but also to third parties (including disappointed beneficiaries) which might be sued upon in the event of breach after the client's death. In England diminution of a deceased's estate by reason of an act of negligence on the part of the deceased's solicitor during the deceased's life has been regarded as constituting a loss. However, Mr MacNeill's proposition that damages for loss constituted by diminution of the estate can be sued for by an executor on the basis of duty owed directly to the executor is, as I understood Mr MacNeill to concede, entirely unsupported by Scottish authority. Moreover, just as there was an absence of Scottish authority, Mr MacNeill was unable to point to any English authority as affording him very clear support.

[31] For my part, agreeing with Mr Jones, I have not found any support for Mr MacNeill's proposition in the English authorities to which I was referred. It is true that the English cases contain references to a claim or remedy as against negligent solicitors being available (or not being available) to the "estate" of a deceased (eg White v Jones supra at 259H; Carr-Glynn v Frearsons supra at 332H, 335G, 337B to 338B; Worby & Co v Rosser supra at 144C to E, 147C and 149B to G). From a Scottish perspective, it is not always immediately clear what exactly is meant by this but, obviously, any attempt to understand what is said in the English cases must be by reference to English law. It was a matter of agreement between the parties that there are important differences between English law and Scots law in this area. In Scotland, actual loss must have been incurred for a right of action to arise, whether in contract or in delict, and it is only where the deceased had a right of action that there is anything to transmit to his executor. Purely nominal damages will not be awarded: Wilkie v Brown, 30 May 2003 unreported, and, accordingly, where there is iniuria sine damno, there is no right of action and therefore no right of action to transmit to an executor. Parties were agreed that in English law, on the other hand, a cause of action arising from a breach of contract will transmit to a deceased's personal representative, irrespective of whether the deceased suffered any loss, as will a cause of action based on tort if the deceased can be said to have suffered at least nominal damages: Clerk & Lindsell supra, paragraph 10-102. In the context of claims for negligence on the part of solicitors, Clerk & Lindsell supra, under the heading "Duties to client: survival to the estate" refer to a cause of action vesting in the client's "estate" in terms of the Law Reform (Miscellaneous Provisions) Act 1934. Thus, in England there will be circumstances where the representative of a deceased client may have a claim for damages arising from the negligence of a solicitor which would not give a right of action to the executor of a similarly positioned client in Scotland. I would see Otter v Church, the first of the line of authority to which I was referred, as an example of that, at least if Mr MacNeill was correct in his exposition of what is necessary to constitute loss according to the law of Scotland. In Otter the breach of contract by the solicitor consisted of failing to advise the client to disentail his interest in certain property. He died intestate. The property passed in terms of the entail and did not fall into his estate. His mother, as administratrix of his estate, sued the solicitors for damages. Breach of contract was established but the defendants argued that the client's personal representative could not have a higher right than the client himself. It was accepted that the client would have had a claim for damages in his lifetime but they "must necessarily have been nominal, because the mistake having been discovered, it could be rectified at the stroke of a pen." It was also accepted that the deceased's claim passed to the personal representative but it was argued that the claim was one for nominal damages only. Upjohn J rejected that argument. The recoverable damages were those which might naturally be expected to flow from a failure to give proper advice. These damages included the extent of the diminution of his estate in the event that, by reason of the failure to give proper advice, the client had been prevented from increasing it by executing the necessary deed. The sum awarded was equal to the value of the property modestly discounted to allow for contingencies. Now, according to Mr MacNeill, and I proceed on the basis that he is correct on this, in Scotland in similar circumstances the client would not have had a claim during his lifetime and there would be nothing to transmit to his executor. This is not to do with differences as to the recognition of the duty of care as between the two jurisdictions but, rather because of differences as to the requirements for a right or cause of action first to arise and then to transmit on death.

[32] Mr MacNeill relied on what was said in Carr-Glynn v Frearsons (A Firm) supra as supportive of his position, and there are similarities as between what the pursuer claims to be his loss in the present case and the loss in respect of which Chadwick LJ in Carr-Glynn said "the estate itself would have a remedy": supra at 333F. In Carr-Glynn the negligence on the part of the solicitor consisted of not advising the severance of a joint tenancy with the result that the testatrix's share did not pass to a beneficiary under her will as she had intended it to do but, rather, vested in the surviving joint tenant. Although the plaintiff in that case was the disappointed beneficiary rather than the personal representative of the testatrix, the existence of a claim available to the estate was of importance because it meant that this was not a case such as White v Jones where, absent a remedy at the suit of the beneficiary, there was no remedy at all. Chadwick LJ held that the existence of a duty to the testatrix which remained enforceable at the instance of her personal representative (otherwise her estate) was not a bar to an action by the beneficiary, subject to the beneficiary demonstrating damage. The solicitor in the circumstances of that case had owed duties to the testatrix and to the specific legatee which were not inconsistent but complementary one with the other. As I would understand it, the importance of Carr-Glynn for Mr MacNeill's argument is the use of language that supports the notion that an estate can suffer loss and that an estate can have a remedy in respect of that loss. However, these remarks have to be interpreted in the light of previous authority. Chadwick LJ did not refer to Otter v Church in his judgement in Carr-Glynn but it seems clear, and I am reinforced in my view by the discussion by Sir Christopher Slade in his judgement in Corbett v Bond Pearce, that what gives the "estate" its remedy in the English cases to which I was referred and which are analogous to the present, is a breach of the duty of care owed to the deceased client. The only reference to which Mr MacNeill could point of a duty being owed directly to a deceased's representative is found in Daniels v Thompson supra at 652. In that case there was an application by counsel for the claimant to be permitted to a make further submission that the defendant solicitor owed a duty of care to "the claimant as personal representative as owner of the property of the testator [who] could maintain a claim in respect of injury done to the estate after her death." The application was refused as having been made too late and accordingly the proposed submission was not considered by the court.

[33] I therefore approach Mr MacNeill's submission that the defenders' predecessors owed a duty of care to whoever should be confirmed as executor of the deceased's estate as unsupported by Scots, English or (because there was no reference to it) any other authority. Mr MacNeill did not regard this as an insurmountable obstacle to the success of his argument and this is a position that he is entitled to take but it does cause a judge sitting at first instance to pause and reflect. The law must develop but there may be good reasons why something has never been done before. I do not understand the case as presented by Mr MacNeill to be in any way fact specific. On Mr MacNeill's approach, simply by virtue of undertaking duties to their now deceased client the defenders' predecessors must be taken to have undertaken identical duties to her post mortem estate in the person of the individual who eventually came to accept office as executor. The issue between Mr MacNeill and Mr Jones accordingly seemed to me to be one of principle and, accordingly, while I remind myself that in order to dismiss an action based on an averred duty of care, the court must be satisfied that even if the pursuer proves his record on all material points the action would nonetheless be bound to fail, this is not a case where, in respect of the matter in issue, the court is going to be assisted by hearing proof of the exact circumstances (insofar as evidence about events in 1975 is available). Mr MacNeill did not suggest otherwise.

[34] Mr Jones challenged the relevancy of the averments that the pursuer had suffered loss. Certainly, looking at the pursuer as no more than an administrator charged with the ingathering and distribution of what is vested in him for the purpose of administration on the deceased's death, the issue of whether he has suffered loss would seem to be problematic. Nothing done or omitted to be done prior to the deceased's death has made the discharge of the executor's duties more costly, either in time or money. His liability is limited to accounting for such estate as vests in him. There is no question of him having to pay out what he does not in fact have. Looking at the pursuer as the deceased's representative (and, of course, that is not how the claim is presented) then, if Mr MacNeill is correct and no loss was suffered during the deceased's life, there is again no loss to the pursuer, or at least no loss recognised by the law as damage in respect of which the pursuer can stand in the place of the deceased. Looking at matters from the perspective of the residuary legatees, they may be said to have suffered loss in that they have not received the benefit that they otherwise would have received. They are (partly) disappointed beneficiaries just as the specific legatees in Ross v Caunters supra and White v Jones supra were disappointed. However the residuary legatees are not pursuers and, notwithstanding it is averred that sum sued for would otherwise have been available for distribution to them, I did not detect in anything that Mr MacNeill said that the executor was suing on their behalf (had it been otherwise the question would have arisen as to why they were not suing on their own behalfs). Rather, the averments are limited to pointing out that the estate vesting in the pursuer was less than it would have been had there not been a failure to evacuate the special destination. In that sense the estate has been diminished and, as Mr MacNeill pointed out, in the English cases similar diminutions of the estate have been regarded as constituting actionable loss: Otter v Church supra, Carr-Glynn v Frearsons supra.

[35] I can see that it is possible to characterise diminution of the deceased's estate as a loss. Whether it is a kind of loss the avoidance of which there can be said to have been a duty of care breach of which gives rise to a right of action at the instance of the pursuer as executor on behalf of the estate may be another matter.

[36] The principal tools that parties offered me to resolve the question of principle as to whether Scots law might impose duties on a solicitor, owed to the post mortem estate mirroring those owed to the client, were the tests that can be derived from, on the one hand, Hedley Byrne v Heller & Partners Ltd and, on the other, from Caparo Industries v Dickman. The object of the tests in the former case can be seen as positive in their effect, in other words focusing on the special circumstances that can result in liability being imposed for economic loss caused by words, whereas the object of the tests in the latter case can be seen to be negative in effect, in other words focusing on a series of circumstances which might result in liability being excluded, but the respective tests share the quality of not being very hard-edged or objective. Much depends on the impression formed by the decision-maker.

[37] I shall have occasion to return to the Hedley Byrne and Caparo tests but I have to declare at this stage that my impression of the supposed duty of care put forward by Mr MacNeill is not a favourable one.

[38] At risk of stating the obvious, this case concerns an attempt to recover purely economic loss caused, so it is averred, by a failure to take action. Mr MacNeill contends that there can be said to have been a duty to avoid the averred financial loss owed, not only to the deceased, but also to her estate. I paraphrase his argument in that way because I understood him to say that the precise content of the duty to the estate is determined by the content of the duty to the deceased. One duty is, as it were, the clone of the other: identical in make-up but having a separate existence. I see this as productive of a number of conceptual difficulties which I mention in no particular order. If Mr MacNeill is correct his proposition, hitherto unrecognised in the law of Scotland, would seem to apply in a wide variety of circumstances. The defenders' predecessors were instructed in a property transaction. They were not specifically instructed in relation to the post mortem disposal of the deceased's estate. This is not a case, for example, about the preparation of a will. The proposed rule of law, because that is what it comes to be, cannot therefore be limited to cases where the advice sought specifically relates to how the client's estate should be disposed of on her death. There is then the question as to whether the supposed duty on which the pursuer founds here is in fact a mirror image or clone of the duty owed to the deceased. In Caparo supra at 627 Lord Bridge said this: "It is never sufficient to ask simply whether A owes B a duty of care. It is always necessary to determine the scope of the duty by reference to the kind of damage from which A must take care to save B harmless." The kind of damage from which the pursuer here says that the defenders' predecessors had to take care to save him harmless: diminution of the post mortem estate, is a loss which the deceased herself could never suffer, as Mr MacNeill's submissions seemed to stress. If that is so, whatever other duties they may have owed the deceased, the defenders' predecessors could not have owed her a duty to take care to save her harmless from that particular kind of damage. In argument Mr MacNeill equated diminution of the post mortem estate with frustration of the deceased's testamentary intentions. Now, as far as the averments are concerned, in 1975 the deceased had yet to evince any testamentary intentions, which is to repeat the point that this is not a will case, but frustration of testamentary intention is not something that Mr MacNeill suggests sounds in damages whereas diminution of the estate, according to him, does. That would seem to indicate that they are different, which leaves the pursuer suing in respect of a duty which was never owed to the deceased under a theory which I have taken to be premised upon the duties owed to the post mortem estate being identical to the duties owed to the deceased. Although, as I understood it, the duties owed to the post mortem estate are, on Mr MacNeill's approach, identical in content to the duties owed to the deceased during her life, they are separate, with an independent existence. They are capable of being breached with consequential loss even although the equivalent duties owed to the deceased during her life, when breached never gave rise to the right to bring an action of reparation. Thus Mr MacNeill's proposition involves the somewhat awkward notion that duties can be owed to a person and, quite separately, to his or her estate. I say somewhat awkward because one usually thinks of the estate at death as being composed of the interests which immediately before death were vested in the deceased. That there might arise, during the lifetime of a deceased, a suite of duties owed to her estate on death, with their correlative rights, which were never owed to her or her estate during life seems a little odd and, at first sight, superfluous, given that, on the analysis proposed by Mr MacNeill, every primary duty owed to deceased's estate on death mirrors a primary duty owed to the deceased during life. One might think that if one individual (the debtor) assumes responsibility for the proprietorial interests of another individual (the creditor), the consequent primary obligation and any secondary obligation to make reparation arising in the event of breach should simply be analysed in terms of a duty owed by the debtor and a right held by the creditor without further elaboration. The other reason why the formulation looks awkward is that duties are owed to and rights are held by natural and juristic persons. The estate of a deceased is not a natural or juristic person. Rather, it is a fund of property vested in an executor for the purposes of administration in respect of which debtors and beneficiaries have claims. It only vests on the death of the person in whom it was formerly. The intervention of the pursuer as executor, who is of course a natural person, is required in order to enforce the duty but, on Mr MacNeill's theory, the defenders' predecessors, on accepting the instructions of the deceased, undertook a duty of care to her estate at a time when there was no person, other than the deceased herself, who might be the recipient of the duty. That does not seem to fit very easily with the principle that a duty is an obligation owed by one person to another person. Nor does it fit with the principle that a duty is the correlative of a right and that a right must have a right-holder. Who, it might be asked rhetorically, was holding the right in respect of which the pursuer now sues prior to his appointment as executor?

[39] I turn now to consider how the duty founded on by the pursuer fares when looked at in the light of the tests derived from the leading cases of Hedley Byrne and Caparo.

[40] In Hedley Byrne it was held that there could be liability in tort for loss caused by following negligent advice where on the one hand there was reasonable reliance and on the other an assumption of responsibility: Hedley Byrne supra at 483, 486, or 502 to 503. The special circumstances in which liability might arise were summarised by Lord Devlin as where there was a relationship equivalent to a contract: supra at 530. Mr Jones and Mr MacNeill were agreed, however, that reliance has not always been held to be necessary, citing White v Jones supra, and I understood them to accept that the test was objective, it is not so much that responsibility is consciously assumed as that it is recognised as imposed by law: Phelps v London Borough of Hillingdon [2001] 2 AC 619 at 653. In the present case Mr MacNeill accepted that there had been no reliance by the pursuer upon the defenders' predecessors. That may be seen as an inevitable concession given that the pursuer was only appointed in 2003, some 28 years after the transaction in question, but it underlined that, on Mr MacNeill's approach, the deceased, who was the client of the defenders' predecessors and therefore clearly within the ambit of the duty of care in the giving of advice, is a quite distinct person from the pursuer, her executor. Mr MacNeill nevertheless submitted that the defenders' predecessors should be taken to have accepted responsibility, if not to the pursuer who had of course yet to be appointed, then at least in respect of the deceased's assets and, in particular, the subjects. That would seem to involve the proposition that the solicitor has undertaken something additional to responsibility to his client and therefore in respect of his client's then proprietary interests. There is nothing in the pursuer's pleadings in this case to point to such an assumption of additional responsibility. Now I can see that that might not be essential given that what Mr MacNeill is effectively arguing for is a rule of law of quite general application (albeit hitherto unrecognised). Nevertheless I see what was described in argument as the Hedley Byre route to be fact specific to the extent that a duty will be held to be imposed where there was something close to a contract. While there was of course a contract between the defenders' predecessors and the deceased, any existing rights in respect of which would have transferred to her executor on her death, I do not see that to have been the case as between the defenders' predecessors and the pursuer. First, because the pursuer was not available to be a party to it. Second, because if it is the contract between the deceased and defenders' predecessors which is being relied upon I do not see why, and I get no assistance on this from the pursuer's averments, the contract should necessarily be taken as having included an obligation to assume responsibility beyond that necessarily assumed to the deceased.

[41] I have characterised the three part foreseeability; proximity; fair, just and reasonable criteria set out in Caparo as potentially exclusionary in effect. The party, such as the pursuer here, who claims to have sustained an economic loss for which he seeks to be compensated by reason of breach of what he says was a duty of care owed to him by another party in respect of that kind of loss must satisfy the court that he can surmount each of the three hurdles placed in his way. Putting it slightly differently, the court, armed with this threefold test, is able to appraise, in a relatively systematic way, any supposed duty of care with a view to preventing it extending liability beyond what is pragmatically acceptable. The categories rather shade one into the other but the court, by finding any one of the tests not to have been met, negatives the existence of a duty of care. As I have already mentioned, as I have reflected upon his submissions, it has seemed to me that Mr MacNeill was not so much arguing for recognition of a duty of care specific to the particular facts but invoking a hitherto unrecognised rule of law. However, that is not how he presented it. Both he and Mr Jones argued for application of the tests. Mr MacNeill submitted that the pursuer passed them. Mr Jones submitted that he did not. I agree with Mr Jones.

[42] I am content to proceed upon the basis that what I have accepted may be regarded as a loss was foreseeable. Bearing in mind that these are no more than convenient labels, as Lord Bridge put it in Caparo supra at 618B, I have more difficulty with proximity and fairness. Mr MacNeill inferred sufficient proximity from the foreseeability of death and the consequential appointment of an executor to the estate of someone dying vested in heritage and "the close proximity as between a client and her executor". He had previously acknowledged that this is not a case where he could point to any actual reliance by the pursuer on anything said or done or not said or not done by the defenders' predecessors and therefore the features referred to by Lord Bridge at 620H to 621B and by Lord Oliver at 638C to D in Caparo as giving rise to a sufficiently proximate relationship the generality of negligent advice cases were inapposite. Given the unusual nature of this claim I am not prepared to assent to the proposition that there necessarily is close proximity as between the client and her executor, let alone close proximity between the client's solicitor and the client's executor. If what was being considered were a situation where the executor was acting as no more than the representative of the deceased client in respect of an interest held by the client during life then Mr MacNeill's assertion would seem to be unexceptionable (if unnecessary). However that is not the case here. What is posited is a relationship between a solicitor instructed in respect of a specific transaction and a yet to be appointed executor of the solicitor's client in respect of an interest that the client could never have. I do not regard that as proximate. I regard that as remote. Given my previously articulated impression of Mr MacNeill's proposed duty, it is perhaps unsurprising that I do not find it fair, just and reasonable that such a duty be imposed but I would add this. As the facts in this case illustrate, a duty such as is proposed would have a very long temporal reach. Recognising a duty owed directly to an individual's executor in respect of a loss that can only eventuate on that individual's death postpones the beginning of any prescriptive period to a point in time which may be many years distant from the act or omission which is said to have been negligent. If Mr MacNeill is correct about what sort of loss is necessary to give rise to a right of action, that situation may also arise in respect of duties owed by a solicitor to a client. Many years may pass before actionable loss arises. Nevertheless, I regard it as a factor pointing away from the conclusion that it would be fair, just and reasonable to impose Mr MacNeill's supposed duty that it its breach inevitably only becomes actionable and therefore subject to prescription at the date when the client dies, possibly a number of decades after the conclusion of the relevant transaction. I accept that it is fair that losses caused by fault are compensated but it is also fair that after a defined period of time liabilities can be taken as extinguished.

[43] I shall uphold the defenders' second plea-in-law and dismiss the action. I reserve all questions of expenses.

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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Matthews v Hunter & Robertson Ltd [2008] ScotCS CSOH_88 (11 June 2008) URL: http://www.bailii.org/scot/cases/ScotCS/2008/CSOH_88.html Cite as: [2008] CSOH 88, [2008] ScotCS CSOH_88

Scottish Court of Session Decisions