Loss of a chance – Solicitor’s negligence – Plaintiff subject of forfeiture proceedings – Solicitor settling in plaintiff’s absence without her consent – Plaintiff succeeding in part
In 1982 the plaintiff purchased a property with a 100% mortgage from Cheltenham & Gloucester Building Society. Under the terms of the lease, a ground rent and a service charge were payable. From about the end of 1983 the flat began to suffer from ingress of water and the plaintiff complained to the managing agents of Nessdale Ltd (the landlord). Some works were subsequently carried out to the property. Further problems ensued. The plaintiff withheld the service charge and ground rent to encourage the landlord to deal with outstanding repairs to the exterior and to carry out works to the interior of the property. The plaintiff had instructed solicitors, of which the three named defendants were partners, to bring proceedings on her behalf against the landlord. While the plaintiff was absent from the country and before any claim on her behalf had commenced, the landlord claimed possession of the property on the grounds of forfeiture and arrears of rent and service charges. Cheltenham & Gloucester were joined as defendants to the proceedings. The plaintiff sought relief against forfeiture and claimed damages for breach of repairing and service covenants in the lease. The defendants filed a defence and counterclaim on her behalf in October 1988.
In September 1991, the defendants settled, without the plaintiff’s consent. Under the settlement the plaintiff was obliged to pay the landlord £9,621.88, plus interest, that being the difference between the landlord’s claim and the value of the plaintiff’s counterclaim, which had been assessed at £4,000. The building society obtained a possession order in respect of the property in 1992.The plaintiff alleged that the defendants had mishandled her case and, had she been properly advised, she would not have entered into the settlement. The plaintiff sought damages, notably, for her loss of opportunity to persue her counterclaim.
Held The plaintiff succeeded in part.
It was possible to say that there was a substantial chance that the final outcome of the trial could well have been one in which the counterclaim, including interest, was of a similar sum to the landlord’s claim plus interest. The settlement adopted on the plaintiff’s behalf was not only a low estimate of the counterclaim, but was one that no reasonably competent solicitor could have reached. Accordingly, the plaintiff succeeded on liability. The damages were to be calculated on the basis of loss of that substantial chance: Allied Maples Ltd v Simmons & Simmons [1995] 1 WLR 1602 applied. The consequences of a “balanced outcome” would likely to have been judgment for the landlord on the claim and judgment for the plaintiff in a similar sum on her counterclaim. The cost orders would likely have been mirror image orders, without any legal aid shield order in respect of the landlord’s costs. The orders would probably have been of the same order of magnitude and would have cancelled each other out. The plaintiff’s claims for further damages arising out of events that occurred after the dissolution of the firm in 1991 failed. The value of the loss of chance as at the present day was assessed in the sum of £10,000.
The plaintiff appeared in person; Glenn Campbell (instructed by Reynolds Porter Chamberlain) appeared for the defendants.
Sarah Addenbroke, barrister
