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 appealed.
Held: The plaintiff had not established that he had any real chance of succeeding in the first action, and the appeal was dismissed. ‘The legal burden lies on the plaintiff to prove that in losing the opportunity to pursue his claim (or defence to counter-claim) he has lost something of value’ but, Simon Brown LJ said, ‘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 their client of the hopelessness of his position and heavier still where, as here, two firms of solicitors successively have failed to do to. 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.’
Moore-Bick J said: ‘When a person sues his former solicitors for negligence for the conduct of proceedings which led to his action being struck out, his loss is normally measured by reference to his prospects of success in the primary litigation – see Kitchen v. RAF Association [1958] 1 WLR 563. However in order to recover for the loss of this kind the court must be satisfied that the plaintiff had at least a real or substantial chance that he would have succeeded in the primary action, not merely a speculative one . . If his prospects fall short of that, the court will ascribe no value to them, but provided the court can see that there were real prospects of success it will evaluate them notwithstanding the difficulties that may involve.’


Lord Justice Simon Brown Lord Justice Ward Mr Justice Moore-Bick


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




England and Wales


CitedKitchen v Royal Air Force Association CA 1958
The plaintiff’s husband, a member of the RAF, was electrocuted and killed in the kitchen of his house. A solicitor failed to issue a writ in time and deprived the plaintiff of the opportunity to pursue court proceedings.
Held: Damages were not . .
CitedAllen 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 . .
CitedW J Alan and Co Ltd v El Nasr Export and Import Co CA 3-Feb-1972
The parties disputed the effect of devaluation on a contract of sale and, in particular, on a letter of credit which was given for the price.
Held: Lord Denning MR said that: ‘The principle of waiver is simply this: If one party, by his . .
CitedChina and South Sea Bank Limited v Tan Soon Gin PC 1990
A mortgagee’s decision on sale is not constrained by reason of the fact that the exercise or non-exercise of the power will occasion loss or damage to the mortgagor. He can sit back and do nothing. He is not obliged to take steps to realise his . .
CitedAllied 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 . .

Cited by:

CitedSharif 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 . .
CitedBrinn and Another v Russell Jones and Walker (A Firm) QBD 12-Dec-2002
Police officers had instructed their solicitor to sue in defamation. By their negligence the chance of a claim was lost. They instructed a second firm of solicitors to claim against the first, but this firm also were negligent. The damages fell to . .
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 . .
CitedDixon v Clement Jones Solicitors (A Firm) CA 8-Jul-2004
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 . .
CitedMcFaddens (A Firm) v Platford TCC 30-Jan-2009
The claimant firm of solicitors had been found negligent, and now sought a contribution to the damages awarded from the barrister defendant. They had not managed properly issues as to their clients competence to handle the proceedings.
Held: . .
CitedAsiansky Television Plc and Another v Khanzada and Others QBD 4-Nov-2011
. .
CitedRaleys Solicitors v Barnaby CA 21-May-2014
The claimant had been represented by the appellant in an action for personal injury. He said that the claim had been negligently settled for less than the proper damages award. The solicitors now appealed against an award of damages saying that any . .
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 . .
CitedEdwards v Hugh James Ford Simey Solicitors SC 20-Nov-2019
The claimant sought damages saying that the defendant solicitors had failed to secure the incremental award of compensation under the vibration white finger scheme. The central issue was whether evidence which only became available later, but which . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Damages

Updated: 09 May 2022; Ref: scu.143755