Tods Murray W.S. v. Arakin Limited [2010] CSOH 90

The pursuers sought recovery of £87,831.11, a sum due to them in professional fees and outlays for their legal services, provided to the defenders over the period 1986 to 1994. The defenders disputed the pursuers' entitlement to the sum claimed for, on three main grounds. First, the defenders maintained that on a proper calculation, they had actually overpaid the pursuers; secondly, that as the pursuers had not issued any VAT invoices for the sums claimed, no debt was due; thirdly and finally, the defenders submitted that in any event, they were entitled to offset any debt due against their counterclaim. The defenders' counterclaim alleged that the pursuers' legal services were deficient in a number of aspects and as a result, they sought a sum of over £62,000,000.

In rejecting the defenders' counterclaim, the court found that it had no jurisdiction to consider the defenders' claims of professional misconduct, with the court only able to concern itself with questions of professional negligence. Such a determination on professional negligence would require to be supported by the evidence of expert witnesses, to prove that the course of action employed was one that no solicitor exercising ordinary skill and care would have taken. The defenders were not able to offer any such expert evidence, and accordingly, the court found the defenders' accusations of professional negligence were based entirely on their own unfounded complaints. The court accordingly dismissed the defenders' counterclaim, holding it to be an abuse of process. Counterclaim dismissed; proof before answer allowed on the sole issue of the sums paid by the defenders in respect of the taxed accounts and whether any sum is due by them to the pursuers.