Allied Maples Group Ltd v Simmons and Simmons: CA 12 May 1995

Lost chance claim – not mere speculative claim

Solicitors failed to advise the plaintiffs sufficiently in a property transaction. A warranty against liability for a former tenant’s obligations under leases had not been obtained. The trial judge held that, on a balance of probabilities, there was a real and not a merely speculative chance that the plaintiffs, had they been properly advised, would have successfully re-negotiated with the vendor to obtain proper protection.
Held: The judgment was upheld. To avoid an action for damages against solicitors being struck out, the plaintiff must satisfy the court that he had at least a ‘real’ or ‘substantial’ chance that he would have succeeded in the primary action, not merely a speculative chance. The court rejected the proposition that in order to succeed the plaintiff was required to prove on a balance of probabilities that the third party (there another party to a commercial transaction) would have acted so as to confer the relative benefit on the plaintiff. A plaintiff must prove that he has (or had) a real or substantial chance (as opposed to a speculative chance) of that occurring, that chance then being evaluated having regard to how it stands in the spectrum between something that just qualifies as real or substantial on the one hand and near certainty on the other. If a chance having been found to be real or substantial was evaluated at less than 50%, an award of damages would follow. ‘In many cases the plaintiff’s loss depends on the hypothetical action of a third party, either in addition to action by the plaintiff, as in this case, or independently of it. In such a case, does the plaintiff have to prove on balance of probability, … that the third party would have acted so as to confer the benefit or avoid the risk to the plaintiff, or can the plaintiff succeed provided he shows that he had a substantial chance rather than a speculative one, the evaluation of the substantial chance being a question of quantification of damages? . . . I have no doubt that … the second alternative is correct.’
Stuart Smith LJ said: ‘the plaintiff must prove as a matter of causation that he has a real or substantial chance as opposed to a speculative one. If he succeeds in doing so, the evaluation of the chance is part of the assessment of the quantum of damage, the range lying somewhere between something that just qualifies as real or substantial on the one hand and near certainty on the other. I do not think that it is helpful to seek to lay down in percentage terms what the lower and upper ends of the bracket s
Hobhouse LJ said: ‘The plaintiffs have satisfied the court that the loss they have suffered is not nominal. They are not obliged to prove more than that they have lost something of substance. This they have done by showing that they had a measurable chance of negotiating significantly better terms. They are entitled to an assessment of their damages.
I agree with Stuart-Smith L.J. that the correct approach is that summarised by Lord Reid in Davies v. Taylor [1974] A.C. 207′

Stuart-Smith LJ, Hobhouse LJ
[1995] 1 WLR 1602, [1995] 4 All ER 907, [1995] EWCA Civ 17, [1995] NPC 83, 46 Con LR 134, [1996] CLC 153, (1995) 70 P and CR D14, [1955-95] PNLR 701
England and Wales
CitedMcWilliams v Sir William Arrol and Company Ltd HL 21-Feb-1962
Damages were sought after the death of the pursuer’s husband working for the respondent. The trial judge had been satisfied that even if the defendants had performed their duty at common law and pursuant to statute, and had provided the deceased . .
AppliedDavies v Taylor HL 1974
The plaintiff’s husband was killed in a road accident caused by the defendant’s negligence. They were childless. She had deserted him five weeks before his death and thereafter, he learned about her adultery with a fellow employee. He tried to . .

Cited by:
CitedBrown and Another v Bennett and Others (No 2) ChD 16-Nov-2001
The power to make a wasted costs order did not apply only against advocates in court, and not only against the applicant’s own representatives. The test was as to the causing of additional costs. In this case several barristers had been involved at . .
CitedProsser v Castle Sanderson Solicitors (a Firm), Geoffrey Martin and Co (A Firm) CA 31-Jul-2002
The claimant sought damages from the respondent solicitors and insolvency practitioners for professional negligence. He had substantial business interests, but fell into financial difficulties, and sought assistance from the defendants. He failed to . .
CitedEquitable Life Assurance Society v Ernst and Young (A Firm) ComC 10-Feb-2003
The company complained that its auditors had failed to give appropriate warning of the Society’s exposure to risk in awarding larger bonuses than were justified, and that had the true position been known, it xould have put itself up for sale . .
CitedHerring v Ministry of Defence CA 10-Apr-2003
The claimant had suffered serious injury in a parachuting accident which deprived him of the opportunity of pursuing his chosen career in the police force. The judge found ‘to the extent of virtual certainty’ that he would have applied to join the . .
CitedEquitable Life Assurance Society v Ernst and Young CA 25-Jul-2003
The claimant sought damages from its accountants, saying that had they been advised of the difficulties in their financial situation, they would have been able to avoid the loss of some 2.5 billion pounds, or to sell their assets at a time when . .
CitedMount v Barker Austin (a Firm) CA 18-Feb-1998
The plaintiff sought damages for professional negligence from his former solicitors in respect of their conduct of a claim on his behalf. He succeeded, but was awarded no damages because the judge had found that his action would be bound to fail. He . .
CitedHarrison and Another v Bloom Camillin ChD 28-Oct-1999
When assessing the losses suffered by a plaintiff alleging that, through the professional negligence of his solicitors, he had lost the opportunity to pursue a similar action against his accountants, it was right to acknowledge, and allow for the . .
CitedCoudert Brothers v Normans Bay Limited (Formerly Illingworth, Morris Limited) CA 27-Feb-2004
The respondent had lost its investment in a Russian development, and the appellants challenged a finding that they had been negligent in their advice with regard to the offer documents.
Held: As to the basis of calculation of damages as to a . .
CitedDixon v Were QBD 26-Oct-2004
The claimant and others were being driven by the defendant. All had drunk, and none wore seat belts. The claimant sought damages for his injuries. General damages were agreed, and the issue was as to loss of future earnings.
Held: The claimant . .
CitedJackson and Another v Royal Bank of Scotland HL 27-Jan-2005
The claimants sought damages, alleging that a breach of contract by the defendant had resulted in their being unable to earn further profits elsewhere. The defendant said the damages claimed were too remote. The bank had, by error, disclosed to one . .
CitedGregg v Scott HL 27-Jan-2005
The patient saw his doctor and complained about a lump under his arm. The doctor failed to diagnose cancer. It was nine months before treatment was begun. The claimant sought damages for the reduction in his prospects of disease-free survival for . .
CitedThe Football League Ltd v Edge Ellison (A Firm) ChD 23-Jun-2006
The claimants operated football leagues, and asked the defendant solicitors to act in negotiating the sale of television rights to ONdigital. The broadcasts went ahead, but no guarantees were taken for the contract. The claimants alleged . .
CitedLawson v Glaves-Smith, Executor of the Estate of Dawes (Deceased) QBD 14-Nov-2006
The claimant sought damages saying that she had been falsely imprisoned, raped and drugged by the defendant who had since died.
Held: The court had only the evidence of the claimant, and must be careful in examining it. On that evidence the . .
CitedVeitch and Another v Avery CA 12-Jul-2007
The claimants appealed the award of only nominal damages after they succeeded in their claim against their solicitors for negligence in their conduct of the defence of a mortgage possession action.
Held: The appeal failed. The judge was . .
Cited4 Eng Ltd v Harper and Another ChD 29-Apr-2008
The claimant sought damages for deceit in the purchase of shareholdings fropm the defendants. The defendants objected that the damages claimed were for a loss of chance and were irrecoverable.
Held: Such damages might be recoverable in an . .
CitedParker and Another v SJ Berwin and Co and Another QBD 17-Dec-2008
The claimants sought damages from their former solicitors. They set out to purchase a football club, expending substantial sums for the purpose, relying on the defendants’ promised provision of service in finding and arranging the funding. They said . .
CitedMartin v Triggs Turner Bartons (A Firm) and Others ChD 31-Jul-2009
The claimant sought damages alleging professional negligence against her solicitors for herself and her late husband’s estate. She said that the will should have allowed advances of capital for all but pounds 100,000 of the estate, rather than the . .
CitedChagger v Abbey National Plc and Another CA 13-Nov-2009
The claimant appealed against the limitation of 2% placed on the uplift of his award of damages for having failed to comply with relevant dispute procedures. The tribunal had found exceptional reasons for reducing the uplift given the size of the . .
CitedJoyce v Bowman Law Ltd ChD 18-Feb-2010
The claimant asserted negligence by the defendant licensed conveyancers in not warning him of the effect of an option in the contract. He had been advised that it would allow him to choose to buy additional land, but it was in fact a put option. The . .
CitedParabola Investments Ltd and Others v Browallia Cal Ltd and Others CA 5-May-2010
The second defendant appealed against the level of damages awarded against him after he was found guilty of a fraud on the claimant, saying that the loss of profits element was unproven.
Held: The appeal failed. Where a claimant’s investment . .
CitedChannon (T/A Channon and Co) v Ward QBD 12-May-2015
The claimant had lost significant sums through his accountancy practice, but now claimed that his insurance broker, the defendant had negligently failed to renew his professional indemnity policies, even though he had supplied policy numbers to the . .
CitedPerry v Raleys Solicitors SC 13-Feb-2019
Veracity of a witness is for the court hearing him
The claimant, a retired miner, had sued his former solicitors, alleging professional negligence in the settlement of his claim for Vibration White Finger damages under the government approved scheme for compensation for such injuries. At trial, the . .

Lists of cited by and citing cases may be incomplete.

Damages, Professional Negligence

Leading Case

Updated: 02 November 2021; Ref: scu.180542