Tods Murray v Arakin 2010 CSOH 90

13 July 2010

The pursuer sued the defender for payment of professional fees. The defender counterclaimed for damages alleging among other things professional negligence.

At debate counsel for the pursuer, Iain Ferguson QC and Alastair Duncan of Axiom, argued that the counterclaim should be dismissed as an abuse of process. Counsel argued that proceedings for professional negligence against a solicitor could not responsibly be raised and maintained in the absence of an opinion from a suitably qualified expert that was supportive of negligence. To do otherwise, it was argued, would be an abuse of process. It was argued that the appropriate sanction would be dismissal of the counterclaim.

The Lord Ordinary (Lord Woolman) was satisfied that the defender's averments were unsupported by expert opinion. He upheld the arguments for the pursuer on abuse of process  and dismissed the counterclaim. He also found that the counterclaim was irrelevant lacking in specification. The Lord Ordinary's opinion contains useful observations regarding the duties of the pleader.

http://www.scotcourts.gov.uk/opinions/2010CSOH90.html