Background

In 2014, McCann was seriously injured in a road traffic accident in Beith. Her injuries were described as “life-changing”, leaving her permanently disabled and unable to pursue meaningful work. She instructed solicitors to pursue a claim against the driver’s insurers. In 2016, an initial offer of £125,000 was made by insurers pursuant to a letter of claim. A medical expert report was instructed by the defender and described the pursuer’s injuries as “life changing injuries which have left her with permanent disability”. In 2017, the pursuer met with the defender to discuss the expert report. She was advised at that meeting that contributory negligence would, on a “best case scenario”, be calculated at 70% and a full valuation of the claim, taking into account contributory negligence, was suggested to be in the range of £500,000-800,000. 

An improved offer of £168,224 was made. The defender advised the pursuer said offer was a reasonable one and the pursuer accepted that advice and the offer in settlement of her claim. McCann argued that this advice was negligent because liability and quantum were not properly investigated, depriving her of the chance to secure a much higher award.

The case came before Lady Haldane on the Procedure Roll at the instance of the defender and turned on whether McCann had pled a relevant case in causation. The defender relied on Perry v Raleys [2020] AC 352, which distinguishes between what a claimant would have done (proved on balance of probabilities) and what others might have done (assessed as loss of chance). The defender was critical of the pursuer’s pleadings and claimed that she failed to specify what competent advice she should have received and how she would have acted differently – without this “connective tissue,” her pleadings were said to be deficient.

In response, the pursuer took the court to Kyle v P&J Stormonth Darling WS 19932 SC 57 and Darknell-King v Slater & Gordon [2024] CHOH 100 where the court accepted that it is virtually impossible to plead the exact terms of hypothetical negotiations. The pursuer emphasised that the negligence lay in advising her to settle prematurely, not in failing to advise her to take specific steps. She also argued that she had lost a valuable opportunity to pursue her claim fully, consistent with principles in Yeoman v Ferries [1967] SC 255.

The judgment 

In her decision, Lady Haldane reminded practitioners that the proper approach is to consider the extent, if at all, to which the pursuer’s losses depend on steps she would have taken, as opposed to what a third party (the insurer of the driver or the court) would have done. In this case specifically, the pursuer’s loss is essentially predicated on what either an insurer or the court would have done, rather than depending more on what she would or would not have done. Lady Haldane found that the pursuer’s averments in this regard were sufficient for the purposes of proof to lay the ground for the proposition that competent advice – meaning that the offer made in settlement was insufficient having regard to the chances of establishing breach of duty and the nature of the injuries suffered – would have been accepted by the pursuer. The defender’s second plea in law was repelled and proof before answer allowed. 

Key takeaways

  • The judgment produced helpful guidance on how to plead a loss of chance case. It highlights that the requirements are not onerous and reminds us that, as per recent authorities, a counterfactual set of averments is not a pre-requisite in every case either as a matter of relevancy or fair notice.
     
  • For clients, the case is a reminder of the importance of thorough investigation before settling. For solicitors, it underscores the duty to provide clear, well-founded advice—because once a claim is compromised, the chance to fight for a higher award may be gone forever.