High Court rules Scottish law firm with no English office can be sued in England for professional negligence

About this case:

• Citation:
  [2022] EWHC 441 (Ch)
• Judgment:
  External link
• Court:
  England and Wales High Court
• Judge:
  Chief Master Shuman

Wright, Johnston and Mackenzie LLP, a firm with no registered office in England, argued that the work it did for the claimant, Cornwall Renewable Developments Ltd, was all carried out in Scotland, making it the place of performance of the contract. Alternatively, it argued that the claim should be dismissed on the ground of forum non conveniens.

The case was heard by Chief Master Karen Shuman in the Chancery Division of the High Court of Justice. Charles Phipps appeared for the applicant and defendant and Christopher Burdin for the claimant and respondent.

English law contracts

In June 2012, the claimant entered into agreements with the owners of two sites in Cornwall with the intention of obtaining planning permission for the construction of wind farms. The following year it contacted the defendant for fee estimates in connection with the work, the director of the company having previously been introduced to a dual qualified partner at the firm, Donna Kelly-Gilmour. Ms Kelly-Gilmour went on to provide advice on the documentation required for a planning application and provide a draft agreement between the claimant and the owners of one of the sites.

Cornwall Council rejected the claimant’s applications in October 2013, stating that the documentation supplied did not fit their criteria. An appeal was filed against this decision, but it was later formally withdrawn. In July 2019, the claimant issued a claim form against the defendant’s registered office in Scotland on the grounds that they had acted negligently in preparing the draft agreement and advice.

The defendant contended that, although the work carried out related to English law contracts concerning sites in England, the main consideration for jurisdiction was that Ms Kelly-Gilmour was in Scotland when she carried out the work. The fact that the work related to English law contracts concerning sites in England was irrelevant.

Alternatively, it was contended that Scotland would be the preferred legal jurisdiction if it were possible to raise an action in both England and Scotland. Scotland was the location of the defendant’s offices from which it conducted its practice and performed its retainer, and there were no special circumstances of which justice required that the trial take place in England.

Centre of gravity

In her judgment, Master Shuman began: “Unquestionably the defendant is solely based in Scotland and the work was carried out by Ms Kelly-Gilmour, a former member in the defendant, based in Glasgow. However, Ms Kelly-Gilmour was a dual qualified solicitor who was providing a service to an English client, as a solicitor qualified to act in England, concerning a development and sites in England.”

However, she continued: “The obligation at the heart of this claim was for Ms Kelly-Gilmour to provide advice and draft agreements as a solicitor qualified to act in England and Wales regulated by the Law Society in England and Wales, to an English client, in respect of parties in England, relating to land in England satisfying planning requirements of an English Council so that the development in England could proceed. The agreements and advice were provided to the claimant and its director, in England. I am satisfied that the place of performance of the contract was England. I also further observe that the centre of gravity in this case was England.”

Turning to the defendant’s submissions on forum non conveniens, Master Shuman noted: “Most, but not all of the evidence, will be provided by parties resident within the English jurisdiction. Mr Dart [the claimant’s sole director] remains based in Cornwall. It is probable that there will be witness evidence from [the site owners] who Mr Dart says now reside in Southampton.”

She concluded: “The losses alleged to have been suffered by the claimant were suffered in England. An expert valuing the site is likely to need knowledge of this type of development and therefore some local knowledge. Whilst Scotland is a forum in which this claim could be tried, I am not satisfied that the claim would be tried more suitably there for the interests of all the parties and the ends of justice.”

For these reasons, Master Shuman concluded that the appropriate legal forum for the claim was England and refused the defendant’s application.