Megan Cockburn v Carole Hope (Court of Session) [2024] CSOH 69 (18 July 2024)

Megan Cockburn v Carole Hope (Court of Session) [2024] CSOH 69 (18 July 2024)

A judicial factor is not a member of a recognised profession for the purposes of professional negligence; breach of duty by a judicial factor is a matter of law for the court and does not require an expert report. The pursuer's pleadings, construed benevolently, set out a case of breach of duty not requiring expert evidence. The pursuer has no title to sue for losses to the estate as a whole, only for her own loss. Prescription issues are complex and require proof before answer.

Citation
[2024] CSOH 69
Parties
Pursuer: Megan Cockburn; Defender: Carole Hope, as Judicial Factor on the estate of the late Scott Edward Cockburn
Jurisdiction
Scotland
Judgment Date
18 July 2024
Procedural Posture
Civil (court of Session Outer House) / Procedure Roll Debate on Preliminary Pleas
Outcome
First conclusion of the summons dismissed; prescription plea reserved for proof before answer; plea on expert evidence repelled; case put out by order for further procedure.
Legal Topics
Judicial Factors, Breach of Fiduciary Duty, Prescription, Title to Sue, Expert Evidence in Negligence Claims
Trusts and Estates Civil Procedure Judicial Factors Breach of Fiduciary Duty Prescription Title to Sue Expert Evidence in Negligence Claims

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Parties

Megan Cockburn

Pursuer

Carole Hope, as Judicial Factor on the estate of the late Scott Edward Cockburn

Defender

Procedural Posture

Civil (court of Session Outer House) / Procedure Roll Debate on Preliminary Pleas

Legal Issues

  1. 1 Whether a claim against a judicial factor for breach of duty requires an expert report as in professional negligence
  2. 2 Whether the pursuer's claims are time-barred by prescription
  3. 3 Whether the pursuer has title to sue for losses to the estate as a whole

Ratio Decidendi

A judicial factor is not a member of a recognised profession for the purposes of professional negligence; breach of duty by a judicial factor is a matter of law for the court and does not require an expert report. The pursuer's pleadings, construed benevolently, set out a case of breach of duty not requiring expert evidence. The pursuer has no title to sue for losses to the estate as a whole, only for her own loss. Prescription issues are complex and require proof before answer.

Court Disposition

First conclusion of the summons dismissed; prescription plea reserved for proof before answer; plea on expert evidence repelled; case put out by order for further procedure.

Orders

  • Sustain defender's fourth plea-in-law and dismiss first conclusion of the summons
  • Reserve defender's eighth plea-in-law (prescription) for proof before answer