All is fair in fair notice: the importance of specification and fair notice in professional negligence claims

The recent decision in J&M Properties v George Weightman [2026] SC AIR 12 echoes the long-standing principle that specification and the provision of fair notice is essential for effective pleadings.

Overview

The case concerns a professional negligence action by a partnership against its former insurance broker. The pursuer alleged that the broker negligently misrepresented why a former insurer, American International Group (AIG), declined to renew cover, leading to a misdeclaration on a subsequent Aviva proposal form, Aviva’s repudiation of a later fire claim, and significant financial loss. After a lengthy procedural history, the sheriff dismissed the action at debate, sustaining the defender’s pleas of irrelevancy and lack of specification.

Facts and procedural background

The pursuer owned a commercial unit in Larkhall insured by AIG for 2013/14. When renewal was sought, the defender advised that AIG was “no longer in the market for risks such as yours”. In fact, AIG refused renewal because they believed repairs were outstanding. Relying on the broker’s statement, the pursuer applied to Aviva through a new broker and repeated the incorrect reason for AIG’s refusal. Aviva issued a policy but, after a fire destroyed the property, refused the claim due to material misdeclaration. The pursuer sold the damaged property at a fraction of its value and sued the original broker for the insured value and lost rent.

The action, raised in 2016, had a protracted history with multiple sists, adjustments and amendments. When the defender insisted on debate on relevancy and specification, the pursuer sought discharge to amend again. The sheriff refused, noting the pursuer had already had ample opportunity.

Issues at debate

The defender argued: 

• Irrelevancy (causation): no coherent causal chain was pled. 
• Lack of specification (quantum): no relevant basis for calculating damages.

The pursuer maintained both issues were matters for proof.

The decision

The sheriff dismissed the action, finding that the pursuer’s pleadings were so incomplete on two essential elements – causation and quantum – that even if everything pled were proved, the case would still fail. In relation to causation, the sheriff held that the chain was not pled in a legally sufficient way. To establish causation, the pursuer needed to aver that Aviva would have insured the property even if the true reason for AIG’s refusal (the outstanding repairs) had been disclosed and that Aviva would have paid out after the fire. Neither was pled and the sheriff emphasised that the “but for” test requires a counterfactual: in this case, what would have happened if the defender had not been negligent?

In relation to quantum, the sheriff held that the claim for damages was wholly unspecified. The pursuer simply pled the insured value. This was held to be irrelevant as the policy was not pled as a valued policy; in indemnity insurance, the insurer pays actual value at the date of loss, not the sum insured and there was a lack of averments made about the property’s value before the fire, the value after the fire, the extent of the damage or any valuation evidence. There was therefore no fair notice of the case on damages and no proper basis to quantify the loss. 

Analysis

The decision highlights strict pleading requirements in professional negligence and insurance litigation:
 
• A complete causal chain, including a counterfactual, must be pled. 
• In indemnity insurance, the pursuer must plead how indemnity would operate, not simply the policy limit.

In October 2025, we discussed another Sheriff Court Case (Cochrane v Harper Macleod LLP [2025] SC GLA 75), where the pursuer’s pleadings were subject to pleas of relevancy and specification. This case echoes Cochrane where similar criticisms in respect of a lack of specification relating to causation and loss were made.

J&M Properties underlines the risks of relying on adjustment periods, sists and amendment procedures, particularly in long-running actions. It is understandably a point of frustration for pursuers when investigating and raising a professional negligence case that there are so many elements that need to be investigated and understood before they can start the court process. Equally, it is understandably a point of frustration for defenders facing a claim where they can’t ascertain the case against them, including the losses the pursuer is seeking to recover, and can’t adequately assess the risks and potential liability they could face.

Pleading out a clear and well-supported case early on is key for all parties but particularly pursuers – pursuing an action without being well-prepared can present risks in potential expenses exposure (for both the process of amending pleadings and an action which fails on relevancy and/or specification) and, in regard to prescription, if there are concerns over an impending time-bar date. The court’s patience is not infinite.

Our professional negligence team has acted in disputes involving lawyers, accountants, architects, engineers, insolvency practitioners, surveyors and construction professionals. Please do reach out if you would think we could provide assistance or if you would like further information about what we do. 

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