The defendant firm had negligently allowed a claim for damages against a firm of accountants to become statute barred. The defendants said the claim was of no or little value, since the claimant would have proceeded anyway.
Held: The court had to bear in mind the distinction between the loss of chance directly through the professional negligence of a defendant, and the assessment where the chance lost was to sue for professional negligence. Questions of causation were relevant in the first case, but in the latter the task was to assess the value of the underlying claim. There was no requirement on the claimant to prove that she would not have proceeded if she had the right advice.
Rix LJ said: ‘There is no requirement in such a loss of a chance case to fight out a trial within a trial, indeed the authorities show as a whole that that is what should be avoided. It is the prospects and not the hypothetical decision in the lost trial that has to be investigated . . .The test is not to find out what the original decision of the underlying mitigation would have been as if that litigation had been fought out, but to assess what prospects were.’
Judges:
Lord Justice Rix, Lord Justice Carnwath, Lord Slynn of Hadley
Citations:
[2004] EWCA Civ 1005, Times 02-Aug-2004, [2007] Lloyds Rep PN 20
Links:
Jurisdiction:
England and Wales
Citing:
Cited – Lackersteen v Lackersteen 1860
The court has power to rectify a settlement notwithstanding that it is a voluntary settlement and not the result of a bargain, such as an ante-nuptial marriage settlement. . .
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 – Mount 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 . .
Cited – Allen v Sir Alfred McAlpine and Sons Ltd CA 1968
The court described the peculiarly difficult position of a solicitor sued for the negligence of losing litigation for his client by reason of having his client’s claim struck out: ‘It is true that if the action for professional negligence were . .
Cited – Sharif and Others v Garrett and Co CA 31-Jul-2001
The applicants sought damages from the defendant solicitors who had failed to prosecute properly a claim for damages. Their building was damaged by fire, but they had not been insured. The action was against the brokers. The court had awarded them . .
Cited – Hatswell v Goldbergs (a firm) CA 2002
The claimant sought damages from his solicitors where his claim for medical negligence was struck out for delay. The High Court declared his claim as of no value.
Held: The underlying claim in medical negligence was made simply impossible by a . .
Cited by:
Cited – Pritchard Joyce and Hinds v Batcup and Another QBD 17-Jan-2008
The claimant solicitors sought contributions from counsel to the damages they had been obliged to pay to their client in negligence.
Held: Underhill J said: ‘My task is not to seek to decide definitively whether LL were liable in negligence to . .
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 . .
Cited – Hannon and Another v News Group Newspapers Ltd and Another ChD 16-May-2014
The claimants alleged infringement of their privacy, saying that the defendant newspaper had purchased private information from police officers emplyed by the second defendant, and published them. The defendants now applied for the claims to be . .
Cited – Perry 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.
Professional Negligence, Damages
Updated: 05 November 2022; Ref: scu.199605