Damages – Solicitors’ negligence – Loss of chance – Defendant solicitor failing to submit claim form within time limit in respect of claimant’s action for medical negligence – Court determining value of claimant’s lost chance of pursuing claim – Whether claimant showing more than minimal loss sustained by defendant’s negligence – Judgment for claimant
The claimant retained the defendant firm of solicitors to advise and act for him in proceedings against a national health trust. As a result of the defendant’s delay in serving the claim form, the claimant lost the opportunity to pursue his claim and was forced to discontinue his action.
The claimant brought proceedings against the defendant claiming damages for negligence. The defendant admitted negligence and accepted that the claimant would have had the financial resources to pursue his claim against the trust. Accordingly, the value of the claimant’s lost chance of pursuing his claim fell to be determined.
The court was asked to determine whether any damage had been suffered by the claimant in consequence of the defendant’s negligence and the sum of damages, if any, that the defendant was obliged to pay.
Held: Judgment was given for the claimant.
In valuing the claimant’s lost chance of pursuing his claim, the legal burden lay on the claimant to prove that he had lost something of value, that is, that his claim had a real and substantial, rather than merely a negligible, prospect of success. The evidential burden lay on the defendant to show that despite having acted for the claimant in the litigation and charging for its services, the litigation was of no value to the client, so that he had lost nothing by its negligence in causing the litigation to be struck out. Plainly, the burden was heavier in a case where a solicitor had failed to advise his client of the hopelessness of his position, and heavier still where two firms of solicitors successively had failed to do so. If a solicitor had advised his client on the merits of his claim, such advice was likely to be highly relevant.
If, and in so far as, the court might now have greater difficulty in discerning the strength of the claimant’s original claim than it would have had at the time of the original action, such difficulties should count not against the claimant, but against his negligent solicitor. It was likely that the delay would have caused such difficulty, which was why the original action was struck out. That, however, was not inevitable; it would not be the case where: (i) the original claim turned on questions of law or the interpretation of documents; or (ii) the only possible prejudice from the delay was to the other party’s case.
If and when the court decided that the claimant’s chances in the original action were more than merely negligible, it would have to evaluate them. That required the court to make a realistic assessment of what would have been the claimant’s prospects of success had the original litigation taken place. Generally speaking, one would expect the court to consider a generous assessment given that it was the defendant’s negligence that had lost the claimant the opportunity of succeeding in full or fuller measure: Mount v Barker Austin (a firm) [1998] PNLR 493 considered.
When a court was called upon to put a value on a claimant’s lost chance of pursuing litigation against a third party, its task was not normally to determine definitively how that litigation would have been decided. It was the prospects and not the hypothetical decision in the lost trial that had to be investigated. The court’s task was to try to assess the claimant’s prospects of establishing negligence. In all the circumstances, the claimant’s chances of establishing negligence would be estimated at 40%. That was not the same as his prospects of establishing liability and the claimant’s overall prospects of success against the trust would be reduced by a further 10% to reflect the litigation risks of not being able to establish that some harm had been caused by the negligence: Hanif v Middleweeks (a firm) [2000] Lloyd’s Rep PN 920, Dixon v Clement Jones Solicitors [2004] EWCA Civ 1005; [2005] PNLR 6 and Hatswell v Goldbergs (a firm) [2001] EWCA Civ 2084; [2002] Lloyd’s Rep PN 359 considered.
Marc Rivalland (instructed by Charles Hoile, of Newbury) appeared for the claimant; Julian Picton (instructed by Beachcroft LLP, of Bristol) appeared for the defendant.
Eileen O’Grady, barrister
