Scotland: England was place of performance, judge rules
A Scottish law firm with no presence in England can be sued for negligence south of the border over advice given by a dual-qualified solicitor on plans for a Cornish wind farm, the High Court has ruled.
Mr Recorder Richard Smith, sitting as a High Court judge, said Chief Master Shuman was entitled to conclude that Cornwall Renewable Developments had a “good, arguable case” that the law firm’s main obligation was to provide advice and agreements for negotiation and execution in England.
The court heard that dual English and Scottish-qualified Donna Kelly-Gilmour was a partner at Glasgow-based Wright Johnston & Mackenzie when the initial advice and agreements were drawn up in 2013.
The firm’s standard terms of business contained a Scottish governing law clause and were subject to the exclusive jurisdiction of the Scottish courts.
However, for the purposes of the jurisdiction challenge, it was accepted that there was no evidence that the firm sent the claimant a retainer letter or that the claimant was aware of the exclusive jurisdiction clause.
Cornwall Council rejected the company’s planning application for the wind farm, with an appeal later withdrawn. The company issued its claim for professional negligence almost five years later, in 2019.
Delivering judgment in Cornwall Renewable Developments v Wright Johnston & Mackenzie [2022] EWHC 3259 (Ch), Mr Recorder Smith said the law firm’s “one overarching ground” on appeal was that Chief Master Shuman was wrong to hold that England was the “place of performance of the defendant’s relevant contractual obligation”.
The claimant argued that the “place of performance” was where it received the work product (England), the defendant where the underlying legal work was carried out (Scotland).
Chief Master Schuman concluded that the English courts had jurisdiction to hear the case under rule 3(a) of schedule 4 of the Civil Jurisdiction and Judgments Act 1982.
Mr Recorder Smith said the master was “entitled to conclude that the claimant had a good arguable case that the principal ‘obligation in question’ was to provide advice and agreements to the claimant for negotiation and execution by parties in England, with the intention that they would satisfy Cornwall Council’s planning rules” and that permission would be granted.
“She did so after a careful evaluation of the facts and the claimant’s pleaded case. She did not fall into any legal error. As such, there is no basis for me to disturb her findings.”
The chief master had acknowledged that instructing a firm of Scottish solicitors with no presence in England might suggest that the place where the drafting was undertaken held some importance, “albeit diminished where the draftsperson was also qualified in England”. But she was entitled to conclude that nothing turned on it.
Mr Recorder Smith rejected further grounds of appeal, one of them involving a Court of Appeal ruling on jurisdiction relating to the 2007 Lugano Convention.
He dismissed the law firm’s appeal and said it was not necessary to consider the company’s cross-appeal.
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