The other day, I got an enquiry from a potential client about a tenancy deposit dispute.
Having heard the details, I told him I didn’t think there would be any basis for making a claim.
He wanted to continue to discuss the matter, so I had to tell him that I was not going to change my mind and, if he did not accept my advice, he should consider getting a second opinion from another solicitor.
At that point, he told me that he had already spoken to several other firms of solicitors in Elgin about the same issue.
So, I asked him what advice they had given him.
He said: “The same advice that you have given me about it.”
I smiled wryly as he said that and the call ended amicably.
I had mixed feelings about it.
Of course, I would like to feel that possible clients are coming to me with their enquiries as their “first choice” solicitor – which was clearly not the case here.
More strongly, though, it struck me as ironic that several solicitors had all apparently given him the same advice on the same topic.
He was shopping around in the hope that, eventually, someone would give him the advice he wanted to hear.
Why lawyers agreeing with each other is unusual
Professionals giving advice, especially lawyers, will often disagree with each other.
It is not really surprising. The fact situations can be complex and, in many cases, there is not a “right” answer; only a continuum of possible answers, some of which may be more likely than others.
Why the seniority of a judge matters
Imagine you asked 9 of the country’s top judges for their opinion on a single legal issue.
Imagine that, among them, they came up with 3 different answers: 5 judges took one view, 3 another view and 1 judge took a view all of his own.
Which view would prevail?
The view favoured by the 5 judges?
Not necessarily.
A recent decision of the Supreme Court is an illustration of the level of disagreement there can be between judges – and the consequences, depending on the seniority of the judges involved.
The case had input from a total of 9 judges and you could argue that it was the view favoured by only 3 of the judges which prevailed.
Jackson –v- Murray
The case of Lesley Jackson –v- Andrew Murray was a pedestrian RTA claim. It concerned a court action for compensation arising out of a tragic accident which occurred on the A98, near Fraserburgh in rural Aberdeenshire, in which a 13-year-old girl was knocked down by a car.
The case illustrates the appeals system for civil cases in Scotland from the Court of Session.
Three court hearings in total
At the first hearing, before a single judge in the Outer House of the Court of Session, the court heard evidence about the circumstances of the accident in order to determine liability for the accident.
There was then an appeal by Miss Jackson to the Inner House of the Court of Session and that appeal was heard by 3 judges.
She further appealed the decision to the Supreme Court, where the appeal was heard by 5 judges.
The outcomes of the hearings
After the first hearing, she established her claim but subject to 90% contributory negligence (i.e. she would receive only 10% of the full value of her claim because the judge considered that most of the blame for the accident lay with her).
After the appeal to the Inner House, she had improved her position and reduced the finding of contributory negligence against her to 70% (the view of all 3 judges).
Finally, after the appeal to the Supreme Court, she got to 50% contributory negligence. In other words, she was entitled to receive one-half of the (by then) agreed value of her claim.
This was the final position, with no further right of appeal available to either side.
The judges in the Supreme Court divided 3-2 in her favour. The minority’s view was that the decision of the Inner House should stand.
The views on the different percentages of contributory negligence, therefore, were:
- 90% – 1 judge
- 70% – 5 judges
- 50% – 3 judges
The 50% outcome prevailed because the 3 judges in favour of it were all in the Supreme Court.
This type of scenario is not all that uncommon
Take the example of, arguably, the most famous personal injury case of all – Donoghue –v- Stevenson – which was appealed all the way to the House of Lords (now, the Supreme Court).
Again, 9 judges in all gave their opinions. 6 found against Mrs Donoghue and only 3 in her favour; but the 3 were in the majority in the House of Lords, so she won.
How we can help
If you have any questions arising from this article or about any aspect of our personal injury claims services, feel free to contact us.
You can phone me (Peter Brash) or my colleague, Marie Morrison, on 01343 544077 or send us a Free Online Enquiry.
All initial discussions are free of charge and without obligation. We’re always glad to try and help.
