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.’


Simon Brown LJ


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




England and Wales


CitedArmory 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:

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 . .
CitedHaithwaite 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