Background 

The pursuer in this action sued the judicial factor appointed to her father’s estate alleging breaches of duty. The case came before Lord Sandison, at Procedure Roll, where he considered several pleas advanced by the defender challenging the relevancy and competency of the pursuer’s case. The principal issue concerned whether an expert report was required to substantiate claims of professional negligence. 

The judgment

In addressing this question, the court analysed key authorities, including Tods Murray WS v Arakin Ltd and JD v Lothian Health Board, which outline the general expectation of expert evidence in negligence claims. Lord Sandison concluded that, although expert reports are commonly required, they are not mandatory in every case. On the facts before the court, Cockburn’s allegations did not neatly fit within the traditional framework of professional negligence. As a result, an expert report was not unequivocally necessary. Certain pleas were therefore repelled, while others were allowed to proceed to proof, reflecting the court’s recognition of the complexities inherent in cases involving fiduciary obligations. 

Lord Sandison was careful to highlight the need to strike a careful balance between procedural formality and substantive justice. While he acknowledged the established role of expert evidence in professional negligence claims, he emphasised the distinct position occupied by judicial factors. Rather than operating solely as professionals exercising specialised expertise, judicial factors function as trustees owing fiduciary duties. Alleged breaches are therefore more accurately characterised as failures in the proper execution of those duties, rather than as professional malpractice in the conventional sense. This distinction enables the court to assess the conduct of a judicial factor by reference to legal standards of fiduciary responsibility without automatically requiring expert testimony.

In addition, Lord Sandison cautioned against an overly rigid application of authorities such as Tods Murray WS. He rejected the notion that the absence of expert evidence necessarily renders a claim irrelevant. Instead, he affirmed that, particularly in cases involving fiduciary duties, the court is capable of determining whether conduct fell below the required standard by assessing the reasonableness of the actions taken, even in the absence of expert input.

Key takeaways

  • The judgment represents a significant development in Scots law relating to fiduciary duty claims against judicial factors. By clarifying that expert reports may not always be required, the court recognises the distinctive nature of fiduciary roles. 
  • This approach may ease the procedural burden on pursuers, particularly where the cost or availability of expert evidence presents a barrier to litigation.
  • At the same time, it places a heightened responsibility on the courts to rigorously scrutinise the conduct of fiduciaries to ensure fair and principled outcomes.

The aftermath of Cockburn

The sentiments in Cockburn ran strong in a case which followed shortly thereafter, Darknell King v Slater and Gordon UK Ltd [2024] CHOH 100. In this case, which also came before Lord Sandison, the profession listened and responded to the judgement in Cockburn, dropping the point contained in their note of argument that the absence of an expert report meant the case should be dismissed. Lord Sandison noting in his written judgement, “in those circumstances, counsel accepted the force of the criticism set out in Cockburn and modified the argument so that it became one which turned on the adequacy of the expert reports and whether the pursuer offered to prove the factual foundation for them”.