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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Davidson & Anor v. Bank of Scotland [2002] ScotCS 50 (21st February, 2002) URL: http://www.bailii.org/scot/cases/ScotCS/2002/50.html Cite as: 2002 SCLR 481, [2002] ScotCS 50

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Davidson & Anor v. Bank of Scotland [2002] ScotCS 50 (21st February, 2002)

OUTER HOUSE, COURT OF SESSION
A3061/00	OPINION OF LORD KINGARTH in the cause MRS LISA DAVIDSON or HOLMES AND ANOTHER, Pursuers; against THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND, Defenders:   ________________

 

 

Pursuers: Tyre, Q.C.; Brodies, W.S.

Defenders: Glennie, Q.C.; McClure Naismith

21 February 2002

1. The pursuers are the only niece and the only nephew respectively of the late Miss Mary Davidson, who died on 21 February 1999. They aver that on 7 July 1988 the deceased made a Will in terms of which she provided for payment of various legacies, including a legacy of £10,000 to each of the pursuers. After deduction of various legacies, the residue of the deceased's estate was to be made over and paid to the deceased's sister, Mrs Ethel Goldstein. It is averred, however, that in about early 1999 the deceased was in failing health and her death was imminent. She was aged 86. She wanted to alter her testamentary arrangements. She consulted the defenders and gave instructions for a new Will to be drawn up to give effect to her said wishes. On 4 February 1999 she issued detailed written instructions to the manager of the defenders' Polworth branch instructing the said changes to her Will to be made. The new Will was to provide for the heritable property, comprising the deceased's dwellinghouse and the contents thereof, to be bequeathed to Mrs Ethel Goldstein. Thereafter, following payment of certain expenses, tax liabilities and pecuniary legacies, the residue was to be bequeathed equally to the first and second pursuers. Notwithstanding these instructions, the deceased died without having executed a new Will.
2. The pursuers claim damages for losses said to have been caused by the fault and negligence of the defenders. In particular, the pursuers aver that the defenders' said Polworth branch manager was aware that the deceased was elderly and was in failing health; that notwithstanding this, he took no steps to have the new Will executed until on or about 19 February 1999, by which time she was too ill to see him and to attend to her affairs - a state from which it is said she never recovered. In these circumstances it is averred that the defenders owed a duty of care to the deceased to carry out her instructions and to do so timeously and further that they also owed these duties to the first and second pursuers "as disappointed beneficiaries who have been adversely affected by the defenders' failure to give effect to the deceased's instructions". It is averred that it was the defenders' duty to prepare the new Will and arrange for it to be executed by the deceased within a reasonable time and in particular within at most four or five days of receiving the deceased's instructions. In these duties it is said the defenders failed. It is further averred that had the new Will been executed each pursuer's share of the residue would have amounted to £208,898.94. Taking account of the legacies of £10,000 which have in fact been received, each pursuer claims to have lost (and concludes for payment of) £198,898.94.
3. The action came before me on Procedure Roll when the defenders sought dismissal.
4. The defenders' primary argument was that the pursuers' action, based upon an averment that in the circumstances the defenders owed a duty of care to the first and second pursuers as disappointed beneficiaries, was fundamentally irrelevant. Although the defenders were a bank, they undertook duties to prepare and have executed a Will which could be no higher than those owed by solicitors undertaking to do similar work. There was long-standing, and binding, Scots authority to the effect that, absent any special facts (such for example as an independent promise made to beneficiaries), a solicitor engaged by a testator in connection with the making of a will could not be said to owe a duty of care to intended beneficiaries. No such special or additional facts were averred in this case. Statements of the underlying applicable principle, forming part of the ratio of the decision, were to be found in Robertson v Fleming 1861 4 Macq. 167, and in particular in the speeches of the Lord Chancellor (Lord Campbell), at p. 177, Lord Cranworth, at pps. 184 and 185, and Lord Wensleydale, at pps. 199 and 200. Although the facts of the case were different, insofar as their Lordships expressly rejected the notion that a disappointed legatee could sue a solicitor employed by the testator (in particular, the Lord Chancellor and Lord Cranworth), these statements were illustrative of the ratio of the decision and were not obiter. The analysis of Robertson v Fleming to this effect by Lord Weir in Weir v J.M. Hodge & Son 1990 S.L.T. 266 was correct and should be followed. The decision had also been found to be binding by Lord Cameron of Lochbroom in MacDougall v MacDougall's Executors 1994 S.L.T. 1178. The principle applied in Robertson v Fleming was also applied in two binding Inner House decisions in the 1890s - Tully v Ingram 1891 19 R. 65 and Auchincloss v Duncan 1894 21 R. 1091 -albeit in relation to facts different from the present circumstances. Although in England in Ross v Caunters 1980 Ch. 297 Sir Robert Megarry V.C. had held that solicitors did owe a duty of care to disappointed beneficiaries and although (albeit for different reasons) the majority of their Lordships in White v Jones 1995 2 AC 207 supported the view that such a claim could be made, it could not be said to be clear that a Scots court would follow the same approach. It was a matter which would require fuller argument before a higher court, where in particular the possible availability of contractual remedies in similar circumstances under the jus quaesitum tertio could be fully explored. Although in White v Jones Lord Goff of Chieveley (who gave the leading speech of the majority of three) had indicated that statements such as those of the Lord Chancellor in Robertson v Fleming about the absence of rights of action for disappointed legatees "did not form part of the ratio decidendi of the case, in which the question at issue in the present case did not fall to be decided", it could only be supposed that he was referring, for the purposes of the argument before him, to the concept of ratio decidendi in a loose sense. Notwithstanding what might be argued by the pursuers, the matter could not be said to have been decided by the Second Division in the unreported case of Robertson v Messrs Watt & Co (4 July 1995) - a case in which effectively the whole issue was reserved pending proof of the facts. If, contrary to these submissions, the matter was thought to be at large for the court, the pursuers' claim was inconsistent with long-standing principles (such as those referred to in the dissenting speeches of Lords Keith and Mustill in White v Jones) and there was no good reason for a Scots court to follow the same line as was adopted in that case unless, at any rate, the pursuers were able clearly to demonstrate in argument that a similar lacuna existed in Scotland as had been found to exist in similar circumstances in England.
5. Certain subsidiary arguments were also advanced by counsel for the defenders. First, it was submitted that even if it could be said that there were sufficient relevant averments to instruct a duty of care owed to the pursuers, there were insufficient relevant averments to instruct a duty to avoid the type of loss which the pursuers were claiming - effectively loss of the whole legacies to which they would have been entitled. A duty of care required to be limited by reference to the kind of loss which the defenders could reasonably be said to have had a duty to avoid. Reference was made to Banque Bruxelles Lambert S.A. v Eagle Star Insurance Company Ltd 1997 AC 191, in particular to the speech of Lord Hoffmann at p.212. In the present case there was nothing in the averments to suggest that the testatrix had had in mind a complete change in the ultimate destination of her property, as opposed to what might be described as a tidying up exercise in which the pursuers would obtain earlier the benefits which it could reasonably be anticipated they would receive in any event on the death of Mrs Goldstein. In these circumstances, on the basis of the present averments, there was no reason to suppose that the defenders should have had in contemplation the potential total loss of the residuary legacies as opposed, for example, to the loss of interest, and possible tax consequences, which would flow from the fact that the sums which would have been received on the death of the testatrix would be received later. Secondly, in any event, the averments of loss were irrelevant - absent any clear averment that the pursuers would not benefit significantly anyway from the funds forming part of the testatrix's estate, whether on the intestacy of Mrs Goldstein or by her disposition, testamentary or otherwise. Thirdly, there were no relevant averments to instruct a duty on the defenders to arrange for the Will to be executed "within at most four or five days of receiving the deceased's instructions". Although there were averments that following the deceased's written instruction on 4 February 1999 and within about three days of that instruction, the second pursuer's father had telephoned the defenders' Mr Allan, warning him that the deceased was seriously and perhaps terminally ill and that he should not delay in putting her testamentary wishes into effect and that at about the same time, and again within about three days of the deceased's written instruction of 4 February, that the first pursuer's husband had telephoned Mr Allan warning him in similar terms, the averments did not suggest that there was any indication in these telephone calls that the deceased's condition had worsened following meetings which the defenders had already had with her or that she could be expected to die in the next day or so. Further, although there were averments that the first pursuer's husband had also telephoned one of the defenders' staff around the weekend of 5 to 6 December 1998 and on 17 February 1999 - apparently to impress on the defenders' branch manager that the execution of the deceased's Will was a matter of the greatest urgency in view of her failing health - these averments could have no relevance to the particular duty alleged, given in particular the direct contact which the deceased and the defenders' representatives had, at the beginning of February 1999 and given further that the alleged phonecall of 17 February 1999 came, on the pursuers' own averments, apparently too late. At least the averments about these telephone calls should not be admitted to probation.
6. Counsel for the pursuers argued, on the main issue, that the pursuers' averments were plainly sufficiently relevant to entitle them to a proof before answer. The court should not regard itself as bound to follow the comments made in Robertson v Fleming or either of the two 19^th century Inner House cases referred to. The passages in Robertson v Fleming relied on were clearly obiter, as correctly identified by Lord Goff in White v Jones. Weir v J.M. Hodge & Son and MacDougall v MacDougall's Executors were in this respect wrongly decided. On a proper analysis the ratio of Robertson v Fleming was confined to the question of whether the particular form of issue which had been used and approved in that case - which included the words "whether the Defender was employed by the same Robert Hamilton to prepare and complete for behoof of the Pursuers.... a bond of relief and assignation of a lease...." - meant as a matter of construction "for the benefit of" (which the court accepted would be too wide) or "on behalf of" or "on account of" (which the court agreed was the issue which the jury should have been asked to determine). Alternatively the ratio, in a case which did not concern a disappointed legatee, was confined to expression of a general, but not necessarily universal, principle. On the contrary, the court was bound to follow the decision of the Second Division in the unreported case of Robertson v Messrs Watt & Co. It was clear from that decision that the court held not only that Robertson v Fleming should not be regarded as binding, and that the law had moved on from the time when that case was decided, but also that, consistent with White v Jones, the law in Scotland would recognise a claim by a disappointed beneficiary in similar circumstances. A similar interpretation had apparently been reached by Lord MacLean in Strathford East Kilbride Ltd v H.L.M. Design Ltd 1999 S.L.T. 121, at p.125. The circumstances of the present case were essentially the same as the circumstances in White v Jones (in which the plaintiffs also claimed that the defending solicitors negligently failed to fulfil the deceased's instructions in the preparation of a new will). Although counsel in these circumstances argued (as had counsel for the defenders for different reasons) that it was not necessary for the court to decide the issue of principle, if the matter was at large the court should find that Scots law would recognise a claim in delict by a disappointed beneficiary in circumstances similar to those pertaining in White v Jones. There was no reason why the court should not broadly follow the same reasoning as was adopted by the majority of their Lordships in White v Jones. In particular the same policy reasons discussed in that case, which made it appropriate to allow the disappointed beneficiaries to sue, would apply in Scotland. If it was to be suggested that there existed no similar lacuna in Scotland, and in particular if it was to be suggested that the pursuers could have a contractual right of action under the jus quaesitum tertio (as suggested by counsel for the defenders), it was for the defenders to persuade the court of that by appropriate argument. There was no apparent authority in any event to support such a contention. Although Lord Weir in Weir v J.M. Hodge & Son had felt compelled to follow Robertson v Fleming, he had been right to take the view that that case was now to be regarded as out of sympathy with the modern law of negligence. It was a case, some 150 years old, which pre-dated the development of the law of negligence from Donoghue v Stevenson 1932 SC (HL) 31 onwards, and in particular the development of the concept of voluntary assumption of responsibility as a basis for delictual liability in cases from Hedley Byrne & Co Ltd v Heller & Partners Ltd 1964 AC 465 to Henderson v Merrett Syndicates Ltd 1995 2 AC 145.
7. On the subsidiary issues, counsel argued that the pursuers' averments were sufficient to instruct a duty on the defenders to avoid the type of loss which was claimed. It was no doubt right to describe a duty of care by reference to the type of loss which it could reasonably be said it was the duty of defenders to avoid. Banque Bruxelles Lambert S.A. v Eagle Star Insurance Company Ltd, was concerned however with the particular situation of defenders whose duty was to provide information to another for the purposes of a future decision. In the present case, the defenders' duty was the more straightforward duty to comply with the instructions of the testatrix. Prima facie the loss which they could reasonably be said to have foreseen if they failed was loss of the legacies to be provided. The motives of the testatrix were irrelevant. So too was the magnitude of the intended bequest (Hooper v Fynmore 2001 T.L.R. 463). The pursuers were suing for the same type of loss as was awarded after appeal in White v Jones. As to the averments of loss themselves, the pursuers did aver that they "have no expectation that they would benefit under the Will of Mrs Goldstein". That was all that they could reasonably be expected to aver. If there was any more particular reason for supposing that they would expect to benefit from the estate of the testatrix beyond the £10,000 legacies which they obtained in terms of the original Will it was for the defenders to aver and prove that. As to the particular duty alleged (namely the duty to arrange for the Will to be executed within at most four or five days of receiving the deceased's instructions) the pursuers were effectively offering to prove on the basis of all the facts averred - including the various telephone calls - that "no reasonably competent bank official holding himself out as having expertise in testamentary affairs" (page 16 A-B) would have delayed beyond that period. This was a matter for evidence.
8. It will be apparent from these arguments that on the main issue counsel on both sides contended that the matter had been authoritatively determined - whether, as the defenders argued, by Robertson v Fleming, or, as the pursuers argued, by the more recent case of Robertson v Messrs Watt & Co. In light of these arguments I turn to consider the latter case first. The action was brought by the pursuer as an individual and as executrix dative of her late husband William Robertson. The defenders were a firm of solicitors. The pursuer as an individual claimed to have sustained loss and damage by reason of the fault and negligence of the defenders. The case came before the Second Division on appeal from the sheriff in Arbroath, who, after debate, inter alia had sustained the defenders' second plea-in-law (which was a general plea to the relevancy and specification of the pursuer's averments) insofar as it related to the defenders' alleged breach of duty to the pursuer as an individual prior to her late husband's death. One of the grounds of appeal was that the sheriff had erred in law in holding that the pursuer had not pled a relevant case in this respect. Although the detail of the averments is not apparent from the Second Division's opinion, parties were able to provide me with a copy of the appeal print of the Record etc. From this it is plain that the essence of the pursuer's claim as an individual was that the defenders, instructed by her later husband prior to his death, failed to advise him to make another will in circumstances where the will which he had already made (in terms of which the pursuer was left the whole estate - which, it was claimed, remained his testamentary intention) could not be found - all to the loss of the pursuer, who on her husband's death received in the event only prior and legal rights under the laws of intestacy. The defenders in disputing any liability to the pursuer claimed inter alia that they were not instructed in connection with the deceased's testamentary intentions but only in relation to a dispute concerning access to a drainage pipe. The sheriff in sustaining the defenders' plea to the relevance of the pursuer's case dealt with the matter succinctly. "I was unable" he said

"to accept that the pursuer had pled a relevant case so far as it relates to the defenders' alleged breach of duty in failing to advise her late husband to make a new Will. Prior to his death there is no case based on contract and accordingly it rests solely on the proposition that the defenders in acting for her husband owed a duty of care to the pursuer as universal legatee under the Will. I share the sentiments expressed by the Lord Ordinary in Weir v J M Hodge & Son in relation to the decision in Robertson v Fleming when viewed from the modern perspective. I also share his inability to do anything about it. Arbroath has a tradition of independent thought and expression. Even imbued with that spirit I cannot see my way to set to one side an authority of the House of Lords. Therefore, for the reasons advanced by the Lord Ordinary in the foregoing case, I feel unable to do so."

In the Division, the Lord Justice Clerk delivered the Opinion of the Court in which inter alia pursuer's appeal was allowed and a proof before answer allowed on the pursuer's whole averments.

9. It is perhaps appropriate to rehearse in its entirety what was said on the relevant question:

"The pursuer also raised the question of whether the sheriff had been well-founded in holding that the pursuer had not pled a relevant case of breach of duty to her as an individual in relation to matters prior to her husband's death. It is clear from the sheriff's Note that he sustained the defenders' second plea-in-law in so far as it related to the defenders' alleged breach of duty to the pursuer prior to her husband's death because he felt bound by the decision in Robertson v Fleming (1861) 4 Macq. 167. Here again the sheriff's decision has been overtaken by events and in particular by a subsequent decision of the House of Lords. In White v Jones (1995) 2 WLR 187, the majority in the House of Lords held that the law had moved on from the time of Robertson v Fleming, and that the court was free to depart from the views expressed in Robertson v Fleming. In Robertson v Fleming at page 177, the Lord Chancellor had said:

'If this were the law a disappointed legatee might sue the solicitor employed by a testator to make a will in favour of a stranger, whom the solicitor never saw or before heard of, if the will were void for not being signed and attested. I am clearly of opinion that this is not the law of Scotland nor of England, and it can hardly be the law of any country where jurisprudence has been cultivated as a science'.

In White v Jones, it was observed that the dictum was obiter, and did not form part of the ratio decidendi.

Before this court counsel for the defenders subjected the speeches of the majority in White v Jones to a careful analysis. At this stage, however, it does not appear to us to be necessary to pursue such a course. Suffice it to say that the majority in White v Jones expressed the view that the court could

'extend to the intended beneficiary a remedy under the Hedley Byrne principle by holding that the assumption of responsibility by the solicitor towards his client should be held in law to extend to the intended beneficiary who (as the solicitor can reasonably foresee) may, as a result of the solicitor's negligence, be deprived of his intended legacy in circumstances in which neither the testator nor his estate will have a remedy against the solicitor'. (per Lord Goff of Chieveley at page 206 to 207).

Having regard to these views expressed in White v Jones, we have come to the conclusion that the sheriff was not well-founded in sustaining the defenders' second plea-in-law to this extent. Whether or not the pursuer is entitled to a remedy in terms of the principle enunciated by the majority of the House of Lords in White v Jones will depend upon the circumstances, and until the circumstances have been established in evidence, it is not possible to say whether the pursuer will be held to be entitled to a remedy against the defenders. We are, however, satisfied that the pursuer has averred sufficient regarding the circumstances to entitle her to an enquiry on this branch of her case. Moreover since there is to be an enquiry, it is preferable that we should say no more about the submissions made to us in relation to White v Jones."

10. In my view, although the expressed reasons are short, this decision can properly be read, in the first place, as authority that a court in Scotland would not now regard itself as being bound by Robertson v Fleming. Whether this was because the court considered the law had moved on from the time of that decision or on the basis that the court agreed that anything there said about the absence of a duty owed by a solicitor to a disappointed beneficiary was obiter (or both) is perhaps not clear, but if the court had considered itself bound by Robertson v Fleming (as the sheriff had) they would not, it seems, have allowed a proof before answer. There is for example no suggestion that the court thought that the sheriff had been wrong because on the facts of the case the observations in Robertson v Fleming might be said not to apply. Rather, the decision to allow proof before answer was taken "Having regard to these views expressed in White v Jones......". It also seems reasonably clear from the specific references made to White v Jones that "these views" included the view not only that the law had moved on from the time of Robertson v Fleming, but also that the quoted dictum of the Lord Chancellor did not form part of the ratio decidendi in that case.
11. Further, although it is perhaps less clear, I have come to the view that the opinion can also be regarded as an authoritative indication that the "principle enunciated by the majority in White v Jones" would be followed in Scotland. Although the court does not expressly say so, nevertheless having specifically acknowledged the views of the majority that the court could extend to the intended beneficiary a remedy under the Hedley Byrne principle (by holding that the assumption of responsibility by a solicitor towards his client should be held in law to extend to the intended beneficiary who as the solicitor could reasonably foresee, might, as a result of the solicitor's negligence be deprived of his intended legacy, in circumstances in which neither the testator nor his estate, would have a remedy against the solicitor) they concluded "Whether or not the pursuer is entitled to a remedy in terms of the principle enunciated by the majority of the House of Lords in White v Jones will depend upon the circumstances, and until the circumstances have been established in evidence, it is not possible to say whether the pursuer would be held to be entitled to a remedy against the defenders". That last observation is, in my view, only reasonably consistent with an understanding that at the end of the proof the question would be whether White v Jones could be said to apply to the facts of the case and not whether White v Jones could be said to apply at all. On this matter, I have come to the same view apparently reached by Lord MacLean in Strathford East Kilbride Ltd v H.L.M. Design Ltd (at pp.125 and, in particular also, 126). It can, I think, at the very least be inferred from the way the Opinion of the Court is expressed that the court saw no reason to suppose that White v Jones would not be followed in Scotland.
12. In the light of Robertson v Watt & Co, I do not regard myself as bound by Robertson v Fleming.
13. Specific reference was of course made in the former case to the dictum of the Lord Chancellor in the latter. In addition to that, counsel for the defenders referred me to the speech of Lord Cranworth at pp.184 and 185 where he said:

"My noble friend states very clearly that no duty was by the law of Scotland cast on the appellant except such, if any, as arose by reason of contract. The doctrine contended for at the bar, that where A employs B, a professional man, to do some act professionally, under which, when done, C would derive a benefit, if, then, B is guilty of negligence towards his employer, so that C loses the contemplated benefit, B is, as a matter of course, responsible to C, is evidently untenable. Such a doctrine would, as is pointed out by my noble friend, lead to the result, that a disappointed legatee might sue the testator's solicitor for negligence in not causing the will to be duly signed and attested, though he might be an entire stranger both to the solicitor and the testator."

and to Lord Wensleydale's speech, at p.199, where he said:

"It is said, however, by the law of Scotland, quite independently of the question who the contracting parties are, whenever an attorney or agent is employed by anyone to do an act which when done will be beneficial to a third person and that act is negligently done, an action for negligence may be maintained by the third person against the attorney or agent. I cannot think that any such proposition is made out to be part of the law of Scotland..." and, at p.200, where he said "It is rightly said on behalf of the appellant that if that proposition was true, numberless legatees and heirs or entail, disappointed of their expectations by erasures and informalities, would have invoked its aid to indemnify them, but no one ever did."

14. Quite apart from Robertson v Watt & Co, it would, I think, now be difficult standing the speech of Lord Goff in White v Jones (whose reasoning was expressly adopted by Lord Browne-Wilkinson and Lord Nolan) to maintain that such views were not obiter. His Lordship was, it seems, referring not only to the dictum of Lord Campbell when he said (at p.259) that:

".... the law has moved on from those days. Nowadays questions such as that in the present case have to be considered anew, and statements of the law, such as that of Lord Campbell, cannot be allowed to foreclose the argument of the plaintiffs in the present case; indeed, although they demonstrate the importance attached to the doctrine of privity of contract in 1861, nevertheless they did not form part of the ratio decidendi of the case, in which the question at issue in the present case did not fall to be decided. It follows that, although the views expressed on the point in Robertson v Fleming are still entitled to great respect, your Lordships are in my opinion free to depart from them without having recourse to Practice Statement (Judicial Precedent) 1966 1 W.L.R. 1234 for that purpose."

These views must be regarded as highly persuasive and, notwithstanding Lord Weir's carefully expressed contrary opinion in Weir v J.M. Hodge & Son (a decision which has been the subject of some unfair criticism in certain quarters) it is, I think, difficult, at least on a strict view, to disagree with them. Robertson v Fleming involved a claim by cautioners against a solicitor employed by the debtor to prepare and to have intimated (which latter he failed to do) a bond of relief and assignation in favour of the pursuers. In the House of Lords questions arose as to whether the pursuers could be said to have averred a relevant claim at all and more particularly as to whether the Issue in the cause which had been approved before trial and which had included as part of the question "Whether the defender was employed by the said Robert Hamilton to prepare and complete, for behoof of the pursuers" the relevant security meant prepare and complete "for the benefit of the pursuers" or "on behalf of or on account of the pursuers" (the pursuers and respondents contending for the latter interpretation). The respondents also contended, in the event that the latter interpretation was held to be incorrect, that the Issue had nevertheless been appropriate. The Lord Chancellor found in favour of the pursuers and respondents on the basis that they had averred a relevant claim and that the Issue should be read as meaning "on behalf of". Anything he said thereafter about the alternative position of the pursuers and respondents must, it seems, be regarded as obiter. It was for that reason that immediately before the reference to a disappointed legatee he said (with my underlining):

"I never had any doubt of the unfairness of the doctrine, unnecessarily (and I must say unwisely) contended for by the respondents' counsel that A employing B a professional lawyer to do any act for the benefit of C, A having to pay B and there being no intercourse of any sort between B and C, - if through the gross negligence or ignorance of B in transacting the business, C loses the benefit intended for him by A, C may maintain an action against B, and recover damages for the loss sustained."

On the other hand, the majority of their Lordships not only found against the pursuers and respondents as to the interpretation of the Issue (which, agreeing with counsel for the pursuers in the present action, was part of the ratio), but also decided, and required to decide, that the pursuers and respondents' fallback argument fell to be rejected. It was in rejecting that argument that Lords Cranworth and Wensleydale made their observations about disappointed legatees. On a strict view these observations can, it seems to me, properly be regarded as obiter. It is not simply that the court itself was not dealing with a claim by disappointed legatees, but rather that the argument which their Lordships were concerned to reject was apparently one to the effect that, in all circumstances, where A employed B to do any act for the benefit of C, C losing the benefit intended for him by A, that C could maintain an action against B, - as Lord Cranworth described it, "as a matter of course". Lord Wensleydale referred to the argument as taking as its premise "whenever an attorney or agent is employed by anyone...". In these circumstances the ratio of this part of the decision appears to have been to reject that apparently all-embracing contention and to hold it inapplicable to the facts of the case. At best perhaps the ratio can be said to be affirmation of the general principle that in circumstances such as those figured in argument an action of damages would not lie. For these reasons therefore I have come to the view that, even if I was wrong as to the interpretation, on this matter, of Robertson v Messrs Watt & Co, I would not be bound (in considering the present action) by the views expressed in Robertson v Fleming, nor indeed by anything said in Tully v Ingram and Auchincloss v Duncan which followed it.

15. If White v Jones fell to be followed in Scotland there was no dispute but that the pursuers had, on the main issue, made sufficient relevant averments. The basis of the pursuers' claim in the present case was essentially the same as the claim allowed in White v Jones where a solicitor failed timeously to implement instructions to prepare a new Will. Although in passing counsel for the pursuers referred me to decisions in the Court of Appeal in England in which the approach adopted in White v Jones had been extended to other circumstances (Carr-Glynn v Frearsons 1999 Ch. 326 and the unreported decision of 23 May 2001 in Dean v Allin & Watts), it was effectively agreed that it was unnecessary for me to consider these cases.
16. If, however, I was wrong to interpret Robertson v Watt & Co as authoritatively indicating that White v Jones would be followed, the question would remain as to whether the pursuers have averred enough to entitle them to a proof before answer. Had I had to decide that question - although conscious, having regard to approach adopted by both counsel, that I was not favoured with full argument on the point - I would have reached the view that the pursuers had averred enough. Although White v Jones is an English case, the law of negligence in the two jurisdictions has tended to progress as one. In Junior Books Ltd v Veitchi Co Ltd (1982 SCHL 244) Lord Roskill observed that there was no relevant difference between the Scots law of delict and the English law of negligence. In Strathford East Kilbride Ltd v HLM Design Ltd Lord MacLean, rejecting an argument that since 1982 English law had moved away from the law of Scotland, said (at p.123):

"I do not think that this assertion is well-founded. Consistently in the years following Junior Books, the Scottish Courts have regarded decisions of the House of Lords in this field as authoritative and persuasive because they have considered, as did Lord Roskill and Lord Brandon (at p.279) in Junior Books, that the laws of the two jurisdictions were the same."

He further went on to say, with particular reference to D & F Estates Ltd v Church Commissioners for England 1989 AC 177 and Murphy v Brentwood District Council 1991 1 AC 398, that: "In a whole series of cases it has been held, expressly or impliedly, that these two authorities, or one or other of them, represents Scots law". In these circumstances the views of the majority in White v Jones must inevitably be regarded as highly persuasive.

17. As to the reasoning itself, Lord Goff, though unable to support the previous approach of Sir Robert Megarry V-C in Ross v Caunters, stressed (particularly at pps.259 and 260 in a chapter headed "The Impulse to do Practical Justice") a number of reasons which, in his view, prompted judges and academic writers to conclude that a duty should be owed by the testator's solicitor to a disappointed beneficiary. In the forefront stood what he described as "the extraordinary fact" that if such a duty was not recognised the only persons who might have a valid claim (i.e. the testator and his estate) would have suffered no loss and the only person who had suffered a loss (i.e. the disappointed beneficiary) had no claim. Recognising that inter alia the law of contract in England provided no solution (in particular the doctrine of privity of contract excluding recognition of a jus quaesitum tertio) he addressed what he described as a "lacuna", and held (in the passage quoted in the Opinion of the Court in Robertson v Watt & Co) that the principle of assumption of responsibility in Hedley Byrne should be extended to cover the circumstances in question.
18. Before me counsel for the defenders, while not, as I understood him, seriously disputing the apparent injustice of the situation if there was no remedy, argued that it should not be supposed - in the absence of detailed submissions from the pursuers - that a similar lacuna could be said to exist in Scotland. It should not in particular be supposed that a remedy under the jus quaesitum tertio was not open; a remedy which could give rise to different questions on the merits - in particular implied terms could be relevant - and on damages. I would, however, have been inclined to agree with counsel for the pursuers that, in the absence of any authority to suggest that a claim such as the present could be brought on the basis of enforcement of a jus quaesitum tertio, prima facie a similar lacuna could be said to exist in Scotland, and that it would be for the defenders to persuade the court that it did not.
19. Had it been necessary, I would therefore have come to the view - notwithstanding the conceptual difficulties trenchantly set out in the speeches of Lord Keith and Lord Mustill in White v Jones - that there was no obvious reason why Scots law would not extend the principle of Hedley Byrne in the same way. As indicated above, it seems the court in Robertson v Watt & Co at least saw no reason to suppose the contrary. By contrast, as counsel for the pursuers stressed, the views expressed in Robertson v Fleming pre-date the whole development of the law of negligence from Donoghue v Stevenson onwards - including the law in Caparo Industries plc v Dickman & Others 1990 2 AC 605 and in Hedley Byrne, as developed in cases such as Henderson v Merrett Syndicates Ltd. As Lord Weir said in Weir v J.M. Hodge & Son (at p.290): "The situation has now been reached when, in my view, the decision in Robertson v Fleming is to be regarded as out of sympathy with the modern law of negligence."
20. On the main issue argued before me I have come therefore to the view that the defenders' argument falls to be rejected and that the pursuers' case is relevant to go to proof before answer. On the subsidiary arguments which were presented, it is enough, I think, - without I hope doing injustice to the careful presentation on both sides of the argument - to indicate that on all these too I prefer, for the reasons advanced, the arguments of the pursuers.
21. In all the circumstances I shall allow a proof before answer.