Solicitor held liable for expenses over ‘inadequate conduct’ of case ahead of aborted proof

A judge in the Court of Session ruled that while the defender had a “stateable defence” her solicitor’s “inadequate conduct” of the case led to delays in medical records being obtained and expert reports and counsel being instructed late, which meant that the proof was aborted.

Lord Boyd of Duncansby heard that the pursuer John Russell raised an action against his brothers Andrew and Paul and Paul’s daughter Vikki.

Action for reduction

The pursuer sought reduction of a disposition executed by his now deceased parents John Russell and Elizabeth Russell on 28 September 2004 disponing a flat at 263 Cumbernauld Road, Denniston, Glasgow to themselves in liferent and Vikki Russell (the third defender) in fee, on the grounds that when it was executed both of the deceased lacked the capacity to do so because he was suffering from “chronic cognitive impairment” after a stroke and she had Alzheimer’s disease.

Only the third defender lodged defences, but on the eve of the proof before answer she withdrew her defences, as a result of which the diet of proof was discharged and decree of reduction was granted.

Thereafter the pursuer, executor nominate of his late father’s will, enrolled a motion seeking the expenses of the action from the defenders and as well as solicitor William Renfrew, who acted for Vikki in the action, as the pursuer had a duty to maximise the estate for the beneficiaries.

The court was told that third defender’s solicitor was advised by counsel in early 2015 that he had doubts about Mr Russell’s capacity and that an expert should be instructed, but it took more than a year for Dr Ian Fergie, a speciality doctor in old age psychiatry, to be instructed.

Precognitions were also taken from the third defender, in which she claimed that in the summer of 2004 her grandparents had both mentioned to her that they wished to gift the flat to her; that her grandfather was “entirely cognitively competent” despite suffering a stroke; and that there was “nothing mentally wrong with her grandmother”.

Dr Fergie produced two reports but he had not received the full medical records from the solicitor, although his position was and remained that there was nothing which categorically stated that they did not have capacity to execute the disposition.

Following receipt of a note of Mr Renfrew’s meeting with Dr Fergie counsel advised in May 2016 that in his opinion it was likely that the pursuer would be successful and that the third defender’s chances of success were less than 50%.

He recommended that settlement discussions take place, but these were unsuccessful and the defences were ultimately withdrawn on the third defender’s instructions.

Motion for expenses

In moving the motion against Mr Renfrew, counsel for the legally aided pursuer Brian Heaney submitted that he had acted for a client, namely the third defender, who also had legal aid, and as such he had duties to the public purse, to the court, to his opponents as well as his client.

It was argued that no responsible solicitor would have allowed their client to get to the “door of the court” before advising that there was no tenable defence.

So far as the motion for expenses against the second defender was concerned he submitted that such a motion could be made against a third party where such a person was a dominus litus i.e. had control over the litigation or guided it.

Mr Heaney submitted that the second defender had “significant influence” over the conduct of the defence by the third defender, who had an “obvious interest” and she had instructed a solicitor to act for her, but it was right that the second defender should “share the burden” of expenses.

Mr Gardiner, counsel for Mr Renfrew, submitted that a solicitor could only be personally liable if he maintained a defence where there was no defence available either in fact or in law, and there was no Scots case where a solicitor had been found personally liable for maintaining a stateable case.

‘Hopeless but stateable defence’

In a written opinion, Lord Boyd of Duncansby said: “The pursuer’s agents appear to have proceeded on the basis that all they need do is to found on the medical records for the proposition that at the time the disposition was executed both deceased did not have the requisite capacity. There is no doubt in my mind that there was a strong prima facie case to that effect. But it was not conclusive. The presence of Alzheimer’s disease for example does not mean that the person has no capacity. It depends on the stage of the disease and the nature of the decision which the person is making.

“Given the medical records for both of the deceased one is bound to be suspicious about the third defender’s response and those of the principal witnesses as revealed in the precognitions. There are obvious discrepancies between what appears to be shown on the face of the records and what is in the precognitions. These raise question marks over their veracity but in the absence of parole evidence I am not prepared to hold that they are untruthful.

“The heart of the matter is whether or not the deceased had the capacity to execute the dispositions and Dr Fergie’s evidence does not rule that out…For these reasons I am not prepared to hold that the defence was an abuse of process and that either the third defender or her solicitor maintained a defence which they knew to be factually misconceived. It may have been pretty hopeless but it was stateable.”

Solicitor’s ‘inadequate conduct’

However, the judge did find the solicitor liable to the pursuer for the expenses due to his “less than adequate” conduct of the case.

Lord Boyd explained: “First he failed to respond to the request for the conveyancing file first made by the pursuer’s agents on 24 March 2014… Secondly there was an obvious discrepancy in the date of execution of the disposition.

“Thirdly, the second round of precognitions which he took were frankly inadequate to deal with the obvious points which arose from the medical records. They were superficial at best repeating the opinion of witnesses that both deceased had capacity when the disposition was signed.

“Fourthly the conduct of the litigation was leisurely…This was a straight forward case which could and should have been dealt with in a relatively short period of time.

“None of these criticisms are sufficient in themselves to establish fault on the part of the solicitor. Where the fault arises in my opinion is in the failure to properly instruct Dr Fergie and to ensure that he had all the medical records.

“The failure by the solicitor to give full, proper and timeous instructions to the expert resulted in his final advice not being received until 13 days before the proof. The further delay in instructing counsel compounded the problem and resulted in an abortive diet of proof. This was against a background of inadequate conduct of the case by the solicitor which fell below the standard which one would normally expect of a solicitor conducting litigation in the Court of Session.”

The judge added: “In my opinion it would be unfair to expect either of the parties or SLAB to bear the cost of the proceedings after that date. Accordingly I will find Mr William Renfrew liable to the pursuer in the expenses of process from 1 April 2016 to date. For the avoidance of doubt that includes the expenses associated with the motions for expenses.”