Category: Professional Negligence

Roberts v Gill and Co and Another: CA 15 Jul 2008

The claimant sought damages in negligence against solicitors who had advised the executors in an estate of which he was a beneficiary. He now sought to amend his claim to make a claim in his personal and in derivative capacities. Sums had been paid out of the estate which had defeated the inheritance rights of the claimant. A new claim would now be out of time.
Held: The appeal was dismissed. There was no objection on the basis that the claimant in a derivative claim was publicly funded. The claimant had to be assumed to have known of the defect in his action and of the need to have acted earlier. The matter was in any event covered by CPR 19.5.
If Mark Roberts’ application to amend so as to plead a derivative claim were allowed, the administrator had to be joined as a party. Since the limitation period had expired, joinder of the administrator could only be permitted if the addition were ‘necessary’ (CPR 19.5(2)(b)) to enable the existing action to be pursued. The addition of the administrator was not necessary for the existing, personal, claim to be properly carried on, and permission to amend to plead the derivative claim only (without joining the administrator) was refused since that amendment would not enable the claimant to proceed to judgment on the derivative claim because the relevant parties had not been and could not be joined.

Judges:

Lord Justice Pill, Lady Justice Arden and Mr Justice Patten

Citations:

[2008] EWCA Civ 803, Times 18-Aug-2008, [2009] 1 WLR 531, [2008] WTLR 1429, [2009] PNLR 2, [2009] CP Rep 3

Links:

Bailii

Statutes:

Limitation Act 1980, Civil Procedure Rules 19.5

Jurisdiction:

England and Wales

Citing:

Appeal from – Roberts v Gill and Co and Another ChD 2007
. .
Cited – Lancaster v Evors 1841
A creditor of the deceased’s estate could enforce a cause of action vested in an estate which the executors were not willing to enforce. . .
Cited – Yeatman v Yeatman 1877
An action was brought by a residuary legatee against her mother-in-law’s executors and another member of the family, who it was alleged, had failed to account for partnership monies to the mother-in-law.
Held: A beneficiary of a trust could . .
Cited – Meldrum v Scorer 1887
The plaintiff, as a beneficiary under a will, sued the executors of the will and the trustees of a settlement made by him.
Held: The court directed that the other beneficiaries of the trust should be joined as defendants to avoid multiplicity . .
Cited – In re Field 1971
The plaintiff had an order for maintenance against the deceased’s estate. She brought proceedings in her own name against an insurance company which had wrongly paid a claim to the widow and not to the estate. The insurer sought a strike out. The . .
Cited – Performing Right Society Limited v London Theatre of Varieties Limited HL 1924
The parties, the plaintiff who was the equitable assignee of performing rights and the infringing defendant, joined specific issue on the absence of the legal owner of the rights.
Held: His absence was critical. PRS failed to obtain a . .
Cited – Vandepitte v Preferred Accident Insurance Corp. of New York PC 1933
The plaintiff was injured in a motor accident. He failed in a direct claim against the insurers of the negligent defendant driver. The insurance was effected by the father (Mr Berry) of the negligent driver and provided that an indemnity would be . .
Cited – Harmer v Armstrong CA 1934
The court considered the position where the assignor of a contract was required to attend court as a party when the assignee sought to enforce the debt.
Held: A beneficiary under a bare trust could bring proceedings in his own name and, where . .
Cited – Bradstock Trustee Services Ltd v Nabarro Nathanson ChD 1995
The plaintiffs were trustees of an occupational pension scheme. It began professional negligence proceedings to recover an expected surplus paid to the employer by the solicitors whose advice had been acted on. The anticipated costs were . .
Cited – Hayim v Citibank NA PC 1987
(Hong Kong) The plaintiffs were the testator’s sons, who were beneficiaries under his American will. He also executed a Hong Kong will under which the residue of his property outside the United States was to be held on trust for sale on the trusts . .
Cited – Giles v Rhind CA 17-Oct-2002
An action by a company under a shareholder’s agreement was compromised. The other shareholder now sought to commence an action against the party in breach for his personal losses. The defendant argued that the company’s compromise was binding also . .

Cited by:

Appeal from – Roberts v Gill and Co Solicitors and Others SC 19-May-2010
The claimant beneficiary in the estate sought damages against solicitors who had acted for the claimant’s brother, the administrator, saying they had allowed him to take control of the assets in the estate. The will provided that property was to be . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Limitation, Civil Procedure Rules

Updated: 17 July 2022; Ref: scu.270705

Matthews v Hunter and Robertson Ltd: SCS 11 Jun 2008

Judges:

Lord Brodie

Citations:

[2007] ScotCS CSOH – 88

Links:

Bailii

Citing:

Cited – Clarke v Bruce Lance and Co CA 1988
The defendant solicitors drafted a will, which the testator executed in 1973. The testator later granted a lease of a service station which had been disposed of in the will, and then granted an option for its purchase at a fixed price, which the . .
Lists of cited by and citing cases may be incomplete.

Scotland, Professional Negligence

Updated: 15 July 2022; Ref: scu.268803

Malmesbury and others v Strutt and Parker (A Partnership) and Another: QBD 11 May 2007

Citations:

[2007] EWHC 999 (QB), [2007] PNLR 570

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Les Laboratoires Servier and Another v Apotex Inc and others ChD 9-Oct-2008
The claimant had alleged that the defendant was producing generic drugs which infringed its rights in a new drug. The patentee had given a cross-undertaking in damages, but the patent was later ruled invalid. The court had to assess the damages to . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Damages

Updated: 15 July 2022; Ref: scu.252377

Farraj and Another v King’s Healthcare NHS Trust and Another: QBD 26 May 2006

The claimants sought damages after the birth of their child with a severe hereditary disease which they said the defendant hospital had failed to diagnose after testing for that disease. The hospital sought a contribution from the company CSL who had carried out the test. The third party said that the claim was out of time.
Held: A duty of care existed from CSL to the claimants. The claimants should have been aware of the involvement of the third parties from the day of the service of the defence, and time ran from that date. The claim was therefore out of time unless the court exrecised its discretion under section 33. In this case the claimant was not misled or mistaken. However the proposed defendant was not significantly affected by any delay. The court exercised its discretion to disapply the limitation period.

Judges:

Swift J DBE

Citations:

[2006] EWHC 1228 (QB)

Links:

Bailii, Gazette

Statutes:

Civil Liability (Contribution) Act 1978 1(1), Limitation Act 1980 14(1)

Jurisdiction:

England and Wales

Citing:

Cited – Hedley Byrne and Co Ltd v Heller and Partners Ltd HL 28-May-1963
Banker’s Liability for Negligent Reference
The appellants were advertising agents. They were liable themselves for advertising space taken for a client, and had sought a financial reference from the defendant bankers to the client. The reference was negligent, but the bankers denied any . .
Cited – Smith v Eric S Bush, a firm etc HL 20-Apr-1989
In Smith, the lender instructed a valuer who knew that the buyer and mortgagee were likely to rely on his valuation alone. The valuer said his terms excluded responsibility. The mortgagor had paid an inspection fee to the building society and . .
Cited – Rees v Darlington Memorial Hospital NHS Trust HL 16-Oct-2003
The claimant was disabled, and sought sterilisation because she feared the additional difficulties she would face as a mother. The sterilisation failed. She sought damages.
Held: The House having considered the issue in MacFarlane only . .
Cited – Groom v Selby CA 18-Oct-2001
The defendant negligently failed to discover the claimant’s pregnancy. A severely disabled child was born. The question was as to the responsibility for payment of excess costs of raising a severely disabled child, a claim for economic loss. The . .
Cited – Caparo Industries Plc v Dickman and others HL 8-Feb-1990
Limitation of Loss from Negligent Mis-statement
The plaintiffs sought damages from accountants for negligence. They had acquired shares in a target company and, relying upon the published and audited accounts which overstated the company’s earnings, they purchased further shares.
Held: The . .
Cited – Parkinson v St James and Seacroft University Hospital NHS Trust CA 11-Apr-2001
A mother had undergone a negligent sterilisation, and in due course she gave birth to a disabled child.
Held: The right to bodily integrity is the first and most important of the interests protected by the law of tort. The cases saying that . .
Cited – MacFarlane and Another v Tayside Health Board HL 21-Oct-1999
Child born after vasectomy – Damages Limited
Despite a vasectomy, Mr MacFarlane fathered a child, and he and his wife sought damages for the cost of care and otherwise of the child. He appealed a rejection of his claim.
Held: The doctor undertakes a duty of care in regard to the . .
Cited – Whitfield v North Durham Health Authority CA 1995
In 1987, and before the claim was issued in 1992 the claimant had issued a claim which had never been served. She sought to extend the limitation period arguing that she had not acquired the requisite knowledge until later,
Held: She had had . .
Cited – Spargo v North Essex District Health Authority CA 13-Mar-1997
The test of ‘When a plaintiff became aware of the cause of an injury’ is a subjective test of what passed through plaintiff’s mind. ‘(1) the knowledge required to satisfy s14(1)(b) is a broad knowledge of the essence of the causally relevant act or . .
Cited – Spargo v North Essex District Health Authority QBD 1996
A plaintiff’s knowledge that her injury could be attributed to hypoxia, is not knowledge that the injury is attributable to the act or omission alleged to constitute negligence as might be pleaded in a statement of claim and no ordinary plaintiff . .
Cited – White and Another v Jones and Another HL 16-Feb-1995
Will Drafter liable in Negligence to Beneficiary
A solicitor drawing a will may be liable in negligence to a potential beneficiary, having unduly delayed in the drawing of the will. The Hedley Byrne principle was ‘founded upon an assumption of responsibility.’ Obligations may occasionally arise . .
Cited – Walkin v South Manchester Health Authority CA 3-Jul-1995
A claim for damages for an unwanted pregnancy occurring after a failed sterilisation. The plaintiff claimed damages for her economic losses. She issued only four years after the birth.
Held: The limitation period ran from the date of . .
Cited – Haward and others v Fawcetts HL 1-Mar-2006
The claimant sought damages from his accountants, claiming negligence. The accountants pleaded limitation. They had advised him in connection with an investment in a company which investment went wrong.
Held: It was argued that the limitation . .
Cited – Simpson v Norwest Holst Southern Ltd CA 1980
The court considered the effect on limitation of a person taking steps to disguise the identity of a potential defendant.
Held: Where the employer’s identity had been ‘hidden’ under mere reference to a corporate group, the date of knowledge . .
Cited – Cressey v E Timm and Son Ltd and E Timm and Son Holding Ltd CA 24-Jun-2005
The claimant sought to counter a defence that his claim was out of time, saying that he had been misinformed as to the name of his employer.
Held: A person could not sue simply ‘his employer’. He must find a name, particularly as against a . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Limitation

Updated: 15 July 2022; Ref: scu.242312

Robert Cunningham Catherine Good Gelande Corp. Ltd. v Collett and Farmer (A Firm): QBD 9 Feb 2006

The claimants sought damages for professional negligence against their architects in connection with the management of works of construction.

Judges:

His Honour Peter Coulson Q.C.

Citations:

[2006] EWHC 148 (TCC)

Links:

Bailii

Jurisdiction:

England and Wales

Professional Negligence, Construction

Updated: 15 July 2022; Ref: scu.239907

Hicks v Russell Jones and Walker: CA 29 Feb 2008

The claimant appealed against a on order finding him liable to pay the legal fees incurred in litigation conducted by them on his behalf. The court had found the defendant solicitors to have acted negligently, but that the negligence had not led to any loss.

Judges:

Lloyd, Toulson LJJ

Citations:

[2008] EWCA Civ 340

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Hicks v Russell Jones and Walker CA 22-May-2007
. .
See Also – Hicks v Russell Jones and Walker CA 12-Jul-2007
Claimants application – appeal against finding of professional negligence against defendant solicitors but with only nominal damages. . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence

Updated: 14 July 2022; Ref: scu.266779

Appleton v El Safty: QBD 23 Mar 2007

The claimant sought damages for loss of earnings from his career as a footballer.
Held: The court made findings in relation to past losses on a balance of probabilities in relation to the first three years after the injury and on a percentage chance basis in the fourth year. For the future, his assessment was based on the percentage chance of different scenarios being realised.

Judges:

Christopher Clarke J

Citations:

[2007] EWHC 631 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Collett v Smith and Another QBD 11-Aug-2008
The claimant had been an eighteen year old playing football for Manchester United reserves when he was injured by a foul tackle which ended his football career. The defendant admitted liability, but denied that he would have gone on to be a premier . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence

Updated: 14 July 2022; Ref: scu.250620

Vision Golf v Weightmans (a Firm): ChD 26 Jul 2005

The defendant solicitors were joint tortfeasors, having failed to make an application to court in a timely fashion, when it might have succeeded. It defended the claim saying that had the claimant issued proceedings against a second firm that firm would also have been liable.
Held: The ‘but for test’ set out in Iraqi Airways was satisfied in this case. The claim fell within the purpose of the law imposing liability for professional negligence. Nothing prevented the claim against the defendant. The possible liability of a second party did not absolve the defendant.

Judges:

Lewison J

Citations:

Times 01-Sep-2005

Jurisdiction:

England and Wales

Citing:

Cited – Kuwait Airways Corporation v Iraqi Airways Company and Others (Nos 4 and 5) HL 16-May-2002
After the invasion of Kuwait, the Iraqi government had dissolved Kuwait airlines, and appropriated several airplanes. Four planes were destroyed by Allied bombing, and 6 more were appropriated again by Iran.
Held: The appeal failed. No claim . .

Cited by:

Cited – Finecard International Ltd (T/A the Ninja Corporation) v Urquhart Dyke and Lord (A Firm) and Another ChD 10-Nov-2005
The defendants sought an interim ruling that they were not the cause of the claimant’s losses. They had acted as patent agents to license to exploit the claimant’s patent in the UK. They alleged that the failure to complete the registration of the . .
See Also – Vision Golf Ltd v Weightmans (A Firm) ChD 21-Jul-2006
. .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Damages

Updated: 13 July 2022; Ref: scu.229997

Kamar v Nightingale and Another: QBD 14 Dec 2007

The claimant sought damages from his barrister saying that he should have introduced evidence of his good character during the trial. The defendant appealed against the order permitting extension of the limitation period.
Held: The court had not allowed the defendant the difficulty he would face in establishing the condition of the claimants mental health at the trial to defend te claim for damages. Nor would it be possible to reconstruct after such a long period the details of the trial so as to assess what would have happened if the defendant had done as it was suggested he should have. The defendant had been prejudiced by the delay which was long and largely unexplained.

Judges:

Eady J

Citations:

[2007] EWHC 2982 (QB)

Links:

Bailii

Citing:

Cited – Donovan v Gwentoys Ltd HL 1990
The plaintiff, then a 16 year old girl slipped and fell whilst employed at the defendant’s factory. The limitation period expired on her 21st birthday. She commenced proceedings five and a half months after that date. The judge extended time under . .
Cited – Steedman, Clohosy, Smith, Kiernan, Newman, Creevy, Anderson v The British Broadcasting Corporation CA 23-Oct-2001
The claimants had issued defamation proceedings. The defendant said they were out of time, having begun the action more than one year after the alleged publication, but accepted that they had not been prejudiced in their defence. The court refused . .
Cited – Hartley v Birmingham City District Council CA 1992
The writ was issued one day late; there had been early notification of the claim; and the defendant’s ability to defend the case was unaffected. The plaintiff asked the court to exercide its discretion to allow the claim t proceed.
Held: The . .
Cited – Spargo v North Essex District Health Authority CA 13-Mar-1997
The test of ‘When a plaintiff became aware of the cause of an injury’ is a subjective test of what passed through plaintiff’s mind. ‘(1) the knowledge required to satisfy s14(1)(b) is a broad knowledge of the essence of the causally relevant act or . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Limitation

Updated: 12 July 2022; Ref: scu.263259

Roe v Minister of Health: CA 8 Apr 1954

The plaintiffs sought damages after being severely paralysed after what should have been minor spinal anaesthetic procedures. The nupercaine had been contaminated by seepage. A part time anaesthetist, not employed directly by the hospital had been found negligent.
Held: Lord Denning cautioned against the use of hindsight in assessing whether an alleged tortfeasor has been negligent, since it was easy to be wise after the event. The standard of care is to be judged on the basis of scientific and technical knowledge at the time of the alleged negligence. The maxim ‘res ipsa loquitur’ has no magical qualities. The hospital was liable for the negligence of those who administer treatment in its hospital, regardless of their exact employment status.

Judges:

Somervell, Denning, Morris LJJ

Citations:

[1954] EWCA Civ 7, [1954] 2 All ER 131, [1954] 2 QB 66, [1954] 2 WLR 915

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Woodland v Essex County Council CA 9-Mar-2012
The claimant had been injured in a swimming pool during a lesson. The lesson was conducted by outside independent contractors. The claimant appealed against a finding that his argument that they had a non-delegable duty of care was bound to fail. . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence

Updated: 12 July 2022; Ref: scu.262845

Hicks v Russell Jones and Walker: CA 12 Jul 2007

Claimants application – appeal against finding of professional negligence against defendant solicitors but with only nominal damages.

Citations:

[2007] EWCA Civ 844

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Hicks v Russell Jones and Walker CA 22-May-2007
. .

Cited by:

See Also – Hicks v Russell Jones and Walker CA 29-Feb-2008
The claimant appealed against a on order finding him liable to pay the legal fees incurred in litigation conducted by them on his behalf. The court had found the defendant solicitors to have acted negligently, but that the negligence had not led to . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Damages

Updated: 12 July 2022; Ref: scu.261605

Dineley v Lothian Health Board: SCS 29 Aug 2007

Opinion

Judges:

Lord Hodge

Citations:

[2007] ScotCS CSOH – 154

Links:

Bailii

Citing:

Cited – Hucks v Cole CA 1968
(Reported 1993) A doctor failed to treat with penicillin a patient, the plaintiff, in a maternity ward. She was suffering from septic spots on her skin though he knew them to contain organisms capable of leading to puerperal fever. Several . .
Lists of cited by and citing cases may be incomplete.

Scotland, Professional Negligence

Updated: 11 July 2022; Ref: scu.259074

Hicks v Russell Jones and Walker: CA 22 May 2007

Judges:

Toulson LJ

Citations:

[2007] EWCA Civ 566

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

See Also – Hicks v Russell Jones and Walker CA 12-Jul-2007
Claimants application – appeal against finding of professional negligence against defendant solicitors but with only nominal damages. . .
See Also – Hicks v Russell Jones and Walker CA 29-Feb-2008
The claimant appealed against a on order finding him liable to pay the legal fees incurred in litigation conducted by them on his behalf. The court had found the defendant solicitors to have acted negligently, but that the negligence had not led to . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Damages

Updated: 11 July 2022; Ref: scu.254359

Birch v University College London Hospital NHS Foundation Trust: QBD 29 Sep 2008

The claimant said that the angiogram procedure she had undergone had caused her personal injury and damage but that the authority had failed properly to obtain her informed consent.

Judges:

Cranston J

Citations:

[2008] EWHC 2237 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Professional Negligence

Updated: 10 July 2022; Ref: scu.276490

Mclouglin v Jones and others: CA 27 May 2005

Application for permission to appeal against striking out of part of damages schedule.
Held: Limited leave given.

Judges:

Neuberger, Moore-Bick JJ

Citations:

[2005] EWCA Civ 764

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – G v G (Minors: Custody Appeal) HL 25-Apr-1985
The House asked when a decision, on the facts, of a first instance court is so wrong as to allow it to be overturned on appeal.
Held: The epithet ‘wrong’ is to be applied to the substance of the decision made by the lower court. ‘Certainly it . .
Lists of cited by and citing cases may be incomplete.

Damages, Professional Negligence

Updated: 10 July 2022; Ref: scu.228151

LP v Wye Valley NHS Trust: QBD 22 Nov 2018

Application by the Claimant LP acting by her litigation friend and husband, MP for an interim payment on an account of damages in the sum of pounds 400,000, the purpose of which is to fund future care and more particularly to enable the purchase and adaptation of a suitable single storey property.

Citations:

[2018] EWHC 3039 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Professional Negligence, Damages

Updated: 10 July 2022; Ref: scu.630747

Vision Golf Ltd v Weightmans (A Firm): ChD 21 Jul 2006

Judges:

Nugee QC DHCJ

Citations:

[2006] EWHC 1766 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Vision Golf v Weightmans (a Firm) ChD 26-Jul-2005
The defendant solicitors were joint tortfeasors, having failed to make an application to court in a timely fashion, when it might have succeeded. It defended the claim saying that had the claimant issued proceedings against a second firm that firm . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Damages

Updated: 07 July 2022; Ref: scu.243988

Toth v Jarman: CA 19 Jul 2006

The claimant appealed dismissal of his claim for damages for nervous shock, associated with the alleged negligence of the defendant doctor in treating his son. It was said that the medical expert had not disclosed a conflict of interest.
Held: The presence of a conflict of interest in an expert need not necessarily disqualify an expert, though ‘where an expert has a material or significant conflict of interest, the court is likely to decline to act on his evidence or indeed to give permission for his evidence to be adduced.’ The test was as to the independence of his opinion. The court made suggestions for the Rules committee as to possible amendments to the expert’s standard declaration.

Judges:

Sir Mark Potter President, Arden LJ, Wall LJ

Citations:

[2006] EWCA Civ 1028, Times 17-Aug-2006, [2006] 4 All ER 1276

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Whitehouse v Jordan HL 17-Dec-1980
The plaintiff sued for brain damage suffered at birth by use of forceps at the alleged professional negligence of his doctor. The Court of Appeal had reversed the judge’s finding in his favour.
Held: In this case most of the evidence at issue . .
Cited – North Glamorgan NHS Trust v Walters CA 6-Dec-2002
A new mother woke in hospital to see her baby (E) fitting. E suffered a major epileptic seizure leading to coma and irreparable brain damage. E was transferred to a London hospital and the following day the claimant was told by a consultant that E’s . .
Cited – Liverpool Roman Catholic Archdeacon Trustees Inc v Goldberg (No 2) 2001
The claimant brought proceedings for professional negligence against a barrister specialising in tax. The Defendant wished to rely upon the expert evidence of another tax barrister in the same set of chambers as him, who was a friend of many years’ . .
Cited – Pollivitte Ltd v Commercial Union Assurance Company Plc 1987
An expert witness should provide independent assistance to the court by way of objective unbiased opinion in relation to matters within his expertise. . .
Cited – Field and Another v Leeds City Council CA 8-Dec-1999
The parties were involved in a dispute as to repairs on a tenanted property. The court had ordered an independent surveyor’s report. The claimant objected to the use by the defendant of an employee for this purpose, and was involved in their claims . .
Cited – National Justice Compania Naviera S A v Prudential Assurance Company Ltd (‘The Ikarian Reefer’) 1993
Cresswell J spoke of the nature of the duty owed by expert witnesses: ‘The duties and responsibilities of expert witnesses in civil cases include the following:

1. Expert evidence presented to the Court should be, and should be seen to be, the . .
Cited – Alcock and Others v Chief Constable of South Yorkshire Police HL 28-Nov-1991
The plaintiffs sought damages for nervous shock. They had watched on television, as their relatives and friends, 96 in all, died at a football match, for the safety of which the defendants were responsible. The defendant police service had not . .

Cited by:

See Also – Toth v Jarman CA 21-Nov-2006
. .
Cited – Chester City Council and Another v Arriva Plc and others ChD 15-Jun-2007
The claimant council alleged that the defendant had acted to abuse its dominant market position in the provision of bus services in the city.
Held: It was for the claimant to show that the defendant had a dominant position. It had not done so, . .
Cited – Kennedy v Cordia (Services) Llp SC 10-Feb-2016
The appellant care worker fell in snow when visiting the respondent’s client at home. At issue was the admission and status of expert or skilled evidence.
Held: Mrs Kennedy’s appeal succeeded. ‘There are in our view four considerations which . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Personal Injury, Litigation Practice, Evidence

Updated: 07 July 2022; Ref: scu.243326

Glyn v McGarel-Groves: CA 14 Jul 2006

The claimant had employed a French veterinary surgeon to treat her horse ‘Anna’. She engaged the defendant English veterinary surgeon to attend the treament and observe. The horse died at the principal negligence of the French vet. The English vet appealed a finding of contributory negligence, saying that he had not taken the responsibility asserted.
Held: (Ward LJ dissenting) The defendant had faild to enquire as to the proposed course of treatment. Had he done so he would have known that that course would prove disastrous. He was asked to be present as a vet, not as a statue. He was liable.

Judges:

Ward LJ, Rix LJ, Gage LJ

Citations:

[2006] EWCA Civ 998, Times 22-Aug-2006

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Griffiths v Evans CA 1953
The parties disputed the terms on which the solicitor had been engaged, and in particular as to the scope of the duty undertaken by and entrusted to the solicitor as regards advising the client.
Held: Where there is a dispute between a . .
Cited – Midland Bank Trust Co Ltd v Hett Stubbs and Kemp (a firm) ChD 1978
A solicitor had failed to register an option as a land charge over property. The court was asked what steps should have been taken by a solicitor in the conduct of a claim: ‘Mr Harman [leading counsel for the plaintiff] sought to rely upon the fact . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence

Updated: 07 July 2022; Ref: scu.243323

Mount v Baker Austin: CA 18 Feb 1998

The Defendant solicitors had allowed the Plaintiff’s claim to be struck out for want of prosecution. The court considered how to calculate the value of the loss of the chance of pursuing the claim: ‘1. The legal burden lies on the plaintiff to prove that in losing the opportunity to pursue his claim (or defence to counterclaim) he has lost something of value i.e. that his claim (or defence) had a real and substantial rather than merely a negligible prospect of success. (I say ‘negligible’ rather than ‘speculative’ — the word used in a somewhat different context in Allied Maples Group Ltd v Simmons and Simmons [1995] 1WLR 1602 — lest ‘speculative’ may be thought to include considerations of uncertainty of outcome, considerations which in my judgement ought not to weigh against plaintiff in the present context, that of struck out litigation.)
2. The evidential burden lies on the defendants to show that despite their having acted for the plaintiff in the litigation and charged for their services, that litigation was of no value to their client, so that he lost nothing by their negligence in causing it to be struck out. Plainly the burden is heavier in a case where the solicitors have failed to advise the client of the hopelessness of his position and heavier still where, as here, two firms of solicitors successively have failed to do so. If, of course, the solicitors have advised their client with regard to the merits of his claim (or defence) such advice is likely to be highly relevant.
3. If and insofar as the court may now have greater difficulty in discerning the strength of the plaintiff’s original claim (or defence) than it would have had at the time of the original action, such difficulties should not count against him, but rather against his negligent solicitors. It is quite likely that the delay will have caused such difficulty and quite possible, indeed, that that is why the original action was struck out in the first place. That, however, is not inevitable: it will not be the case in particular (a) where the original claim (or defence) turned on questions of law or the interpretation of documents, or (b) where the only possible prejudice from the delay can have been to the other side’s case.
4. If and when the court decides that the plaintiff’s chances in the original action were more than merely negligible it will then have to evaluate them. That requires the court to make a realistic assessment of what would have been the plaintiff’s prospects of success had the original litigation been fought out. Generally speaking one would expect the court to tend towards a generous assessment given that it was the defendants’ negligence which lost the plaintiff the opportunity of succeeding in full or fuller measure. To my mind it is rather at this stage than the earlier stage that the principle established in Armory v Delmire (1722) 1 Stra. 505 comes into play.’

Judges:

Simon Brown LJ

Citations:

[1998] PNLR 493, [1998] EWCA Civ 277

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Armory v Delamirie KBD 1722
A jeweller to whom a chimney sweep had taken a jewel he had found, took the jewel out of the socket and refused to return it. The chimney sweep sued him in trover. On the measure of damages, the court ruled ‘unless the defendant did produce the . .

Cited by:

Cited – The 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 . .
Cited – Haithwaite v Thomson Snell and Passmore (A Firm) QBD 30-Mar-2009
The claimant sought damages from his former solicitors for admitted professional negligence. The court considered the loss suffered in the handling of his claim against a health authority. The solicitors received advice after issuing that the . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Damages

Updated: 07 July 2022; Ref: scu.242868

Scott v Lothian University Hospitals NHS Trust: SCS 13 Jun 2006

Outer House

Judges:

Lord Hodge

Citations:

[2006] ScotCS CSOH – 92

Links:

Bailii, ScotC

Citing:

Cited – Hucks v Cole CA 1968
(Reported 1993) A doctor failed to treat with penicillin a patient, the plaintiff, in a maternity ward. She was suffering from septic spots on her skin though he knew them to contain organisms capable of leading to puerperal fever. Several . .
Lists of cited by and citing cases may be incomplete.

Scotland, Professional Negligence

Updated: 06 July 2022; Ref: scu.242479

Browning and Another v Messrs Brachers (A Firm): QBD 13 Feb 2004

Judges:

Jack J

Citations:

[2004] EWHC 16 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – William Browning, Maureen Browning v Messrs Brachers (A Firm) QBD 15-May-2003
The claimants sought damages for professional negligence, in having failed to pursue a claim for professional negligence against a previous firm of solicitors who had acted for the claimant. . .

Cited by:

See Also – Browning v Messrs Brachers CA 20-Jun-2005
. .
Lists of cited by and citing cases may be incomplete.

Professional Negligence

Updated: 06 July 2022; Ref: scu.227079

A v Bottrill: PC 9 Jul 2002

PC (New Zealand) The defendant was a pathologist who carried out cervical smears. His actions were found to be negligent.
Held: The Board considered whether it would be correct to require an additional prerequisite of intention or conscious recklessness before an award of exemplary damages. Such a requirement would always bring evidential difficulties and ‘courts in common law countries have remained true to the underlying rationale of the exemplary damages jurisdiction. Courts in all countries have openly recognised the exceptional and unusual nature of this jurisdiction. They have recognised the need to confine this remedy to truly exceptional and unusual cases. Punishment is primarily a matter for criminal law. They have, further, been well aware of the importance, and the difficulty, of confining the use of this remedy in cases of negligence. ‘ However ‘as a matter of principle and authority, intentional wrongdoing or conscious recklessness is not an essential prerequisite to an order for payment of exemplary damages. Legal principle does not require that the court’s jurisdiction should be limited in this way.’ At the same time: ‘their Lordships cannot over-emphasise what has already been indicated more than once. The cases where it is appropriate to make an award of exemplary damages are exceptional. The cases where it is appropriate to make an award of exemplary damages in the absence of intentional wrongdoing or conscious recklessness will be exceptional and rare indeed.’

Judges:

Lord Nicholls of Birkenhea, Lord Hope of Craighead, Lord Hutton, Lord Millett, Lord Rodger of Earlsferry

Citations:

[2002] UKPC 44, [2003] 1 AC 449, (2003) 70 BMLR 198, [2002] 3 WLR 1406

Links:

PC, Bailii, PC

Jurisdiction:

England and Wales

Citing:

Cited – McLaren Transport Ltd v Somerville 1996
(New Zealand) Tipping J discussed the award of exemplary damages: ‘Exemplary damages for negligence causing personal injury may be awarded if, but only if, the level of negligence is so high that it amounts to an outrageous and flagrant disregard . .
Cited – Kuddus v Chief Constable of Leicestershire Constabulary HL 7-Jun-2001
There is no rule of law preventing the award of exemplary damages against police officers. The fact that no case of misfeasance in public office had led to such awards before 1964, did not prevent such an award now. Although damages are generally . .
Cited – Rookes v Barnard (No 1) HL 21-Jan-1964
The court set down the conditions for the award of exemplary damages. There are two categories. The first is where there has been oppressive or arbitrary conduct by a defendant. Cases in the second category are those in which the defendant’s conduct . .
Cited – Cassell and Co Ltd v Broome and Another HL 23-Feb-1972
Exemplary Damages Award in Defamation
The plaintiff had been awarded damages for defamation. The defendants pleaded justification. Before the trial the plaintiff gave notice that he wanted additional, exemplary, damages. The trial judge said that such a claim had to have been pleaded. . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Damages, Professional Negligence

Updated: 06 July 2022; Ref: scu.177982

Palmer v Tees Health Authority and Another: QBD 1 Jun 1998

A Health authority was not liable in negligence for failing to restrict the freedom of a mental health out-patient who had threatened to kill and did so. The threat was not specific enough to allow action.

Citations:

Times 01-Jun-1998

Jurisdiction:

England and Wales

Cited by:

Appeal from – Palmer (Administratrix of the Estate of Rose Frances Palmer) v Tees Health Authority and Hartlepool and East Durham NHS Trust CA 2-Jun-1999
A claim for damages on behalf of a murdered child’s estate and the child’s mother for psychiatric damage against a health authority for negligence in having failed to manage a psychiatric outpatient who had abducted and murdered the child, was bound . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence

Updated: 06 July 2022; Ref: scu.84545

Axo v Salisbury NHS Foundation Trust: QBD 10 Jun 2019

Claim for damages brought on behalf of a boy born prematurely at Salisbury General Hospital in 2008. Shortly after birth, he received a tenfold overdose of pancuronium bromide (referred to hereafter as pancuronium), which is a muscle relaxant used to facilitate mechanical ventilation. It is alleged that this caused him to sustain significant brain damage which has resulted in cerebral palsy.

Judges:

Yip DBE J

Citations:

[2019] EWHC 1454 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Professional Negligence

Updated: 06 July 2022; Ref: scu.638225

Moda International Brands Ltd v Gateley Llp and Another: QBD 23 May 2019

‘claim for professional negligence in connection with a property transaction. It raises questions as regards whether there was professional negligence, whether there was any resulting loss, and, if so, whether damages are to be calculated on the basis of the balance of probabilities or loss of a chance. ‘

Judges:

Freedman J

Citations:

[2019] EWHC 1326 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Damages, Professional Negligence

Updated: 06 July 2022; Ref: scu.638213

Haward and others v Fawcetts: HL 1 Mar 2006

The claimant sought damages from his accountants, claiming negligence. The accountants pleaded limitation. They had advised him in connection with an investment in a company which investment went wrong.
Held: It was argued that the limitation period was to be extended until three years after the discovery by the claimant of why it was that the advice he had received was negligent. Such an extension would defeat the balance sought to be struck by parliament, and was not justifiable. It was for the claimant to establish his state of mind at different times so as to allow calculation of when the limitation period started. The claimant in this case had not discharged that burden so as to establish the date of commencement for time he argued. His claim failed.
Lord Mance said: ‘Under section 14A the onus is on a claimant to plead and prove that he first had the knowledge required for bringing his action within a period of three years prior to its bringing.’
Where the claim rests on an allegation of negligent advice, the claimant must ‘know that the advice may be flawed, though he need not know that it was negligent’ Lord Nicholls said: ‘This feature of the advice cannot be brushed aside as a matter of detail. Nor can it be treated, as it was by the judge, as a matter going only to particulars. Far from it. This feature is the very essence of Mr Hawards’s claim. Stated in simple and broad terms, his claim is that Mr Austreng did not do his job properly. Time did not start to run against Mr Haward until he knew enough for it to be reasonable to embark on preliminary investigations into this possibility.
There may be cases where the defective nature of the advice is transparent on its face. It is not suggested that was so here. So, for time to run, something more was needed to put Mr Haward on inquiry. For time to start running there needs to have been something which would reasonably cause Mr Haward to start asking questions about the advice he was given.’

Judges:

Lord Nicholls of Birkenhead, Lord Scott of Foscote, Lord Walker of Gestingthorpe, Lord Brown of Eaton-under-Heywood, Lord Mance

Citations:

[2006] UKHL 9, Times 03-Mar-2006, [2006] 1 WLR 682, [2007] Lloyd’s Rep PN 19

Links:

Bailii

Statutes:

Limitation Act 1980 14

Jurisdiction:

England and Wales

Citing:

Cited – Cartledge v E Jopling and Sons Ltd HL 1963
The plaintiffs were steel dressers who, in the course of their employment, had inhaled quantities of noxious dust which had caused them to suffer from pneumoconiosis. They issued proceedings on 1 October 1956 but were unable to show any breach of . .
Cited – Pirelli General Cable Works v Oscar Faber and Partners HL 2-Jan-1983
The plaintiff asked the defendant consulting engineer to design an extension to their factory in 1969. Not later than in April 1970, cracks developed in the chimney. In 1977 the cause of the damage was discovered. It arose from design faults in the . .
Cited – Wilkinson v Ancliff (BLT) Ltd CA 1986
In order to be fixed with sufficient knowledge to start the limitation period running, it was not necessary for the plaintiff to have knowledge sufficient to enable his legal advisers to draft a fully and comprehensively particularised statement of . .
Cited – Halford v Brookes CA 1991
The plaintiff, the mother and administratrix of the estate of a 16 year old girl, alleged that her daughter had been murdered by one or both of the Defendants. The claim was for damages for battery. Rougier J at first instance had decided that: . .
Appeal from – Haward and Others v Fawcetts (A Firm) and Another CA 11-Mar-2004
The court looked at the date from which the limitation period ran in an action for professional negligence: ‘It is clear from the words of the section itself . . that it is concerned with knowledge of facts, as opposed to knowledge of matters of . .
Cited – Hendy v Milton Keynes Health Authority 1992
A potential plaintiff may have sufficient knowledge of the damage suffered to set the limitation period running, if she appreciates ‘in general terms’ that her problem was capable of being attributed to the operation, even where particular facts of . .
Cited – Spargo v North Essex District Health Authority CA 13-Mar-1997
The test of ‘When a plaintiff became aware of the cause of an injury’ is a subjective test of what passed through plaintiff’s mind. ‘(1) the knowledge required to satisfy s14(1)(b) is a broad knowledge of the essence of the causally relevant act or . .
Cited – Broadley v Guy Clapham and Co CA 9-Sep-1993
The limitation period starts when a reasonable person would have sought medical help. Section 14(1)(b) requires that ‘one should look at the way the plaintiff puts his case, distil what he is complaining about and ask whether he had in broad terms . .
Cited – Nash v Eli Lilly and Co CA 1993
The court considered whether a solicitor acting for a potential plaintiff was considered to be an expert for the purposes of the section.
Held: Purchas LJ said: ‘Of course as advice from a solicitor as to the legal consequences of the act or . .
Cited – A’court v Cross 1835
The Chief Justice commented on the 1623 Act, saying that he was ‘sorry to be obliged to admit that the courts of justice [had] been deservedly censured for their vacillating decisions’ and: ‘When by distinctions and refinements, which, Lord . .
Cited – Hallam-Eames and Others v Merrett Syndicates Ltd and Others CA 25-Jan-1995
Members of Lloyd’s who faced re-insurance underwriting liabilities alleged negligence on the part of the active underwriter, their members’ agents and their syndicates’ managing agents. Limitation defences were raised.
Held: Mere knowledge of . .
Cited – Dobbie v Medway Health Authority CA 11-May-1994
The plaintiff had a lump on her breast. The surgeon, without first subjecting the lump to a microscopic examination in order to determine whether it was cancerous or benign, removed the breast. This was in 1973. The lump was subsequently found to be . .
Cited – Smith v Central Asbestos Co Ltd; Central Asbestos Co Ltd v Dodd HL 1973
The House considered at what point an injured person was to be deemed to have become aware of his injury so as to start the limitation period.
Held: A majority rejected the proposition that knowledge of ‘material facts’ for section 1(3) . .
Cited – HF Pension Trustees Ltd v Ellison and Others ChD 24-Feb-1999
In an allegation of professional negligence which had lead to a transfer of funds, time ran for limitation purposes from the time of the transfer, and not from the point later when it became apparent that the legal advice may have been negligent. A . .
Cited – Hillsdown Holdings plc v Pensions Ombudsman 1997
The court had to answer the question of whether the Pensions Ombudsman could make orders which the court could not.
Held: It could not, Knox J said: ‘there is a real distinction between ordering compensation for inconvenience and distress . .
Cited – Cooper v Phibbs HL 1867
There is an exception to the general rule that a mistake of law does not vitiate a contract where the mistake was as to private rights. . .
Cited – Forster v Outred and Co CA 1981
A mother signed a mortgage deed charging her property to H as security for a loan to her son. She claimed the solicitor had been negligent in his advice. The solicitor replied that the claim was out of time. The loss accrued not when demand for . .
Cited – Guidera v NEI Projects (India) Ltd CA 30-Jan-1990
The word ‘attributable’ in the Act means ‘capable of being attributed’, rather than ’caused by’. . .
Cited – Kathleen Magaret Oakes v Mr P W Hopcroft CA 27-Jul-2000
The claimant needed correct medical advice and legal advice before she knew that she had settled her original personal injury claim at too low a figure. . .
Cited – Ali v Courtaulds Textiles Ltd CA 26-May-1999
A claimant was not fixed with knowledge of the source of his injury by being referred for medical opinion. He could not be expected to understand the source of this injury without expert assistance, and time did not run until such assistance was . .
Cited – Perry v Moysey 1998
. .

Cited by:

Cited – Law Society v Sephton and Co (a Firm) and Others HL 10-May-2006
A firm of solicitors had a member involved in a substantial fraud. The defendant firm of accountants certified the firm’s accounts. There were later many calls upon the compensation fund operated by the claimants, who sought recovery in turn from . .
Cited – Farraj and Another v King’s Healthcare NHS Trust and Another QBD 26-May-2006
The claimants sought damages after the birth of their child with a severe hereditary disease which they said the defendant hospital had failed to diagnose after testing for that disease. The hospital sought a contribution from the company CSL who . .
Cited – M, Regina (on The Application of) v Secretary of State for Home Department Admn 2-Dec-2010
. .
Cited – St Anselm Development Company Ltd v Slaughter and May ChD 1-Feb-2013
The claimants appealed against rejection of their claim in negligence said to have been out of time. They had set out to sublet flats but their mistiming disallowed reclaiming of certain rents under the 1993 Act.
Held: The two flats were to be . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Limitation

Updated: 05 July 2022; Ref: scu.238772

Whitehouse v Jordan: HL 17 Dec 1980

The plaintiff sued for brain damage suffered at birth by use of forceps at the alleged professional negligence of his doctor. The Court of Appeal had reversed the judge’s finding in his favour.
Held: In this case most of the evidence at issue was that of expert witnesses, and the court might therefore be more ready to depart from findings of fact by the judge.
Lord Wilberforce said as to expert evidence: ‘While some degree of consultation between experts and legal advisers is entirely proper, it is necessary that expert evidence presented to the court should be, and should be seen to be, the independent product of the expert, uninfluenced as to form or content by the exigencies of litigation. To the extent that it is not, the evidence is likely to be not only incorrect but self defeating.’

Judges:

Lord Wilberforce, Lord Edmund-Davies, Lord Fraser of Tullybelton, Lord Russell of Killowen, Lord Bridge of Harwich

Citations:

[1980] UKHL 12, [1981] 1 WLR 246, [1981] 1 All ER 267

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Bland v Ross (Ship Julia) (Admiralty) PC 1860
The court considered the care needed in an appellate court in reversing a decision on the facts. Lord Kingsdown said that: ‘They, who require this Board, under such circumstances to reverse a decision of the court below upon a point of this . .
Cited – The Glannibanta CA 1876
‘Now we feel, as strongly as did the Lords of the Privy Council in the cases just referred to [The Julia 14 Moo P.C. 210 and The Alice L.R. 2 P.C. 245], the great weight that is due to the decision of a judge of first instance whenever, in a . .
Cited – Clarke v Edinburgh and District Tramways Co HL 1919
The House considered the ability of an appellate court to reconsider the facts.
Held: The privileges enjoyed by a trial judge extend not only to questions of credibility.
Lord Shaw said that the judge enjoys ‘those advantages, sometimes . .
Cited – SS Hontestroom v SS Sagaporack HL 1927
The court discussed the weight to be given by an appellate court to findings of fact made by the court of first instance.
Held: Not to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the trial . .
Cited – Bolam v Friern Hospital Management Committee QBD 1957
Professional to use Skilled Persons Ordinary Care
Negligence was alleged against a doctor.
Held: McNair J directed the jury: ‘Where some special skill is exercised, the test for negligence is not the test of the man on the Clapham omnibus, because he has not got this special skill. The test . .
Mentioned – Chin Keow v Government of Malaysia PC 1967
. .
Cited – Powell v Streatham Manor Nursing Home HL 1935
Where the Judge at the trial has come to a conclusion upon the question which of the witnesses, whom he has seen and heard, are trustworthy and which are not, he is normally in a better position to judge of this matter than the appellate tribunal . .
Approved – SS Hontestroom v SS Sagaporack HL 1927
The court discussed the weight to be given by an appellate court to findings of fact made by the court of first instance.
Held: Not to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the trial . .

Cited by:

Cited – Meadow v General Medical Council Admn 17-Feb-2006
The appellant challenged being struck off the medical register. He had given expert evidence in a criminal case which was found misleading and to have contributed to a wrongful conviction for murder.
Held: The evidence though mistaken was . .
Cited – Toth v Jarman CA 19-Jul-2006
The claimant appealed dismissal of his claim for damages for nervous shock, associated with the alleged negligence of the defendant doctor in treating his son. It was said that the medical expert had not disclosed a conflict of interest.
Held: . .
Cited – National Justice Compania Naviera S A v Prudential Assurance Company Ltd (‘The Ikarian Reefer’) 1993
Cresswell J spoke of the nature of the duty owed by expert witnesses: ‘The duties and responsibilities of expert witnesses in civil cases include the following:

1. Expert evidence presented to the Court should be, and should be seen to be, the . .
Cited – Armchair Passenger Transport Ltd v Helical Bar Plc and Another QBD 28-Feb-2003
Objection was made to the use of an expert witness who had formerly been a senior employee of the defendant.
Held: The court set out criteria for testing the independence of a proposed expert witness: ‘i) It is always desirable that an expert . .
Cited – The Queen v Crawford PC 11-Nov-2015
From the Court of Appeal of the Cayman Islands – The crown appealed against the quashing of the respondent’s conviction for possession of an unlicensed firearm. A gun was found where he had been seen to discard a gun whilst being chased. The . .
Cited – Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital HL 21-Feb-1985
Explanation of Medical Risks essential
The plaintiff alleged negligence in the failure by a surgeon to disclose or explain to her the risks inherent in the operation which he had advised.
Held: The appeal failed. A mentally competent patient has an absolute right to refuse to . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Professional Negligence

Updated: 05 July 2022; Ref: scu.238567

Fulham Leisure Holdings Ltd v Nicholson Graham and Jones: ChD 14 Feb 2006

The defendant solicitors were being sued for professional negligence. The claimants had taken legal advice after termination of the retainer which led to the present action, and sought to rely upon part of counsel’s opinion. The defendants sought full disclosure of the papers relating to the advice.
Held: The court would order further limited disclosure of the advice given but not full disclosure. Such an order would not lead to any opening of the floodgates in terms of disclosing all the advice received.

Judges:

Mann J

Citations:

[2006] EWHC 158 (Ch), Times 23-Feb-2006

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Nea Karteria Maritime Co Ltd v Atlantic and Great Lakes Steamship Corporation (No 2) 11-Dec-1978
The court considered disclosure of a legally privileged note of an interview: ‘I believe that the principle underlying the rule of practice exemplified by Burnell v British Transport Commission is that, where a party is deploying in court material . .
Cited – Balkanbank v Taher and Others 19-Feb-1994
Disclosure of legal advice. . .
Cited – General Accident Fire and Life Assurance Corporation v Tanter (‘The Zephyr’) 1984
When considering the extent to which a court should order partial disclosure of legally privileged advice, the test is one of fairness in the conduct of the trial. It should be left to the trial judge to determine whether a party in the evidence . .
Approved – In re Konigsberg (A Bankrupt) 1989
The court considered in the context of legal privilege the distinction between the disclosure of a document and its use at trial. Parties who grant a joint retainer to solicitors do not retain any confidence as against one another.
A bankrupt’s . .
Cited – Paragon Finance Plc (Formerly Known As National Home Loans Corporation Plc); etc v Freshfields (a Firm) CA 11-Mar-1999
A client who sues his former solicitor, waives his legal privilege protection, as regards that legal relationship, but that does not require a waiver also, of other privilege with later solicitors instructed in related matters. Lord Bingham LCJ . .
Cited – Regina v Secretary of State for Transport ex parte Factortame and others (5) Admn 7-May-1997
There was no obligation to disclose further documents against legal professional privilege where the issues are severable. . .
Cited – Regina v Derby Magistrates Court Ex Parte B HL 19-Oct-1995
No Breach of Solicitor Client Confidence Allowed
B was charged with the murder of a young girl. He made a confession to the police, but later changed his story, saying his stepfather had killed the girl. He was acquitted. The stepfather was then charged with the murder. At his committal for trial, . .
Cited – Berkeley Administration Inc v McClelland CA 1990
There is no legally acceptable basis on which the benefit of an undertaking, to which a member of a group of companies is entitled, may be claimed on behalf of the group as a whole. The court discussed who had the benefit of cross undertakings given . .
Cited – GE Capital Corporate Finance Group v Bankers Trust Co and Others CA 3-Aug-1994
Irrelevant parts of documents required to be disclosed may be blanked out on discovery by the party giving discovery. Hoffmann LJ: ‘It has long been the practice that a party is entitled to seal up or cover up parts of a document which he claims to . .
Cited – Derby and Co Ltd And Others v Weldon And Others (No 10) CA 1991
A document had been disclosed by mistake.
Held: The inspecting parties must have realised that the documents had been disclosed by mistake. Fairness on the opposite party is the basis for the courts to hold for a waiver of legal privilege.

Cited by:

Principal Judgment – Fulham Leisure Holdings Ltd v Nicholson Graham and Jones ChD 5-Oct-2006
. .
Cited – ZS v FS (Application To Prevent Solicitor Acting) FD 24-Oct-2017
Discosure of Confidences must be at risk
H sought to restrain W’s solicitors from acting. The firm was one of six firms approached to consider representing H, and he now said that certain matters had been diviluged to the firm.
Held: The legal principles were clear, and it was for H . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Legal Professions

Updated: 05 July 2022; Ref: scu.238514

Honisz v Lothian Health Board and others: SCS 10 Feb 2006

Inner House

Judges:

Lord Hodge

Citations:

[2006] ScotCS CSOH – 24

Links:

Bailii

Jurisdiction:

Scotland

Citing:

Cited – Hucks v Cole CA 1968
(Reported 1993) A doctor failed to treat with penicillin a patient, the plaintiff, in a maternity ward. She was suffering from septic spots on her skin though he knew them to contain organisms capable of leading to puerperal fever. Several . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence

Updated: 05 July 2022; Ref: scu.238400

Everett v Griffiths: CA 1920

The plaintiff, who had been detained as a lunatic as the result of the decision of Griffiths, a Justice of the Peace and Chairman of the Board of Guardians in reliance on a medical certificate signed by Anklesaria, a Doctor, sued them both in negligence.
Held: A workhouse doctor owed a duty of care to a person whom he certified to be insane.

Judges:

Bankes LJ and Atkin LJ

Citations:

[1920] 3 KB 163, 89 LJKB 929, 123 LT 280, 84 JP 161

Jurisdiction:

England and Wales

Cited by:

Cited – Hedley Byrne and Co Ltd v Heller and Partners Ltd HL 28-May-1963
Banker’s Liability for Negligent Reference
The appellants were advertising agents. They were liable themselves for advertising space taken for a client, and had sought a financial reference from the defendant bankers to the client. The reference was negligent, but the bankers denied any . .
Appeal from – Everett v Griffiths HL 1921
The plaintiff had been committed to a mental hospital. The question was whether the doctor (Anklesaria) who signed the certificate to support his committal was liable to him in negligence.
Held: The House affirmed the judgment of the Court of . .
Cited – JD v East Berkshire Community Health NHS Trust and others HL 21-Apr-2005
Parents of children had falsely and negligently been accused of abusing their children. The children sought damages for negligence against the doctors or social workers who had made the statements supporting the actions taken. The House was asked if . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Health Professions

Updated: 05 July 2022; Ref: scu.216357

Rogers v Whitaker: 19 Nov 1992

High Court of Australia – Negligence – Breach of duty – Medical practitioner – Duty to warn of possibility of adverse effect of proposed treatment – Extent of duty.
The patient complained that the doctor when proposing a form of treatment to his left eye had not explained the associated risks. Those risks had become realised. The plaintiff was already blind in the other eye, giving the risk a greater significance than it would otherwise have had. In addition, she had asked anxiously about risks.
Held: Why should the patient’s asking a question make any difference in negligence, if medical opinion determines whether the duty of care requires that the risk should be disclosed? The patient’s desire for the information, even if made known to the doctor, does not alter medical opinion. ‘Whether a medical practitioner carries out a particular form of treatment in accordance with the appropriate standard of care is a question in the resolution of which responsible professional opinion will have an influential, often a decisive, role to play; whether the patient has been given all the relevant information to choose between undergoing and not undergoing the treatment is a question of a different order. Generally speaking, it is not a question the answer to which depends upon medical standards or practices. Except in those cases where there is a particular danger that the provision of all relevant information will harm an unusually nervous, disturbed or volatile patient, no special medical skill is involved in disclosing the information, including the risks attending the proposed treatment.’
The court restated the test of the materiality of a risk so as to encompass the situation in which, as the doctor knows or ought to know, the actual patient would be likely to attach greater significance to a risk than the hypothetical reasonable patient might do: ‘a risk is material if, in the circumstances of the particular case, a reasonable person in the patient’s position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it.’

Judges:

Mason CJ, Brennan, Dawson, Toohey, Gaudron, McHugh JJ

Citations:

[1992] HCA 58, (1992) 175 CLR 479

Jurisdiction:

England and Wales

Cited by:

Cited – Montgomery v Lanarkshire Health Board SC 11-Mar-2015
Change in Doctors’ Information Obligations
The pursuer claimed that her obstetrician had been negligent, after her son suffered severe injury at birth. The baby faced a birth with shoulder dystocia – the inability of the shoulders to pass through the pelvis. The consultant considered that a . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Professional Negligence

Updated: 04 July 2022; Ref: scu.544327