The Supreme Court has today handed down its much anticipated judgment in Perry v Raleys Solicitors, which is its first consideration of loss of a chance in a professional negligence case. The decision has wide-ranging implications for legal professionals and insurers alike.
Mr Perry had worked as a miner between 1966 and 1994. He developed a condition known as Vibration White Finger (“VWF“) as a result of using vibratory tools at work. In 1996, Mr Perry instructed Raleys Solicitors (“Raleys“) to pursue a claim for damages against the Department for Transport and Industry (“DTI“), which had assumed the liabilities of Mr Perry’s former employers.
In 1999, the DTI established a compensation scheme for miners suffering from VWF. Mr Perry’s claim was thereafter pursued within that scheme and Mr Perry accepted the DTI’s offer to settle his claim. The settlement sum was calculated without reference to the cost of day-to-day assistance which Mr Perry required as a result of his VWF. In 2000, the scheme was amended, establishing a new mechanism for the assessment and determination of claims in respect of such assistance (“Services Claims“).
In 2009, Mr Perry issued a claim against Raleys, seeking damages and alleging that Raleys had negligently failed to advise him of the possibility of pursuing a Services Claim. Shortly before trial, Raleys admitted negligence but argued that their negligence had not caused Mr Perry any loss. The trial judge accepted that argument, having found that Mr Perry had not been in a position to pursue a successful Services Claim honestly. That was because, having heard evidence, the judge did not accept that Mr Perry could not perform unaided the tasks which he did carry out unaided before the onset of VWF. Mr Perry’s claim against Raleys was dismissed.
The Court of Appeal allowed Mr Perry’s appeal, holding that: (1) the trial judge was wrong in his analysis of whether Raleys had caused Mr Perry any loss and (2) the trial judge made various errors in considering the evidence, leading him to find incorrectly that Mr Perry had been ineligible to pursue a Services Claim.
Issues before the Supreme Court
The Supreme Court was asked to consider two important issues:
- Where a solicitor negligently fails to advise a client of a potential claim against a third party, and where that client then brings a claim against the solicitor, seeking damages for the lost opportunity to pursue the former claim: must the client prove, on the balance of probabilities, that the former claim would have been an honest claim?
- In which circumstances should an appellate court interfere with a trial judge’s findings of fact?
The Supreme Court’s decision
In handing down judgment, Lord Briggs acknowledged that the assessment of causation and loss in cases of professional negligence has given rise to difficult conceptual and practical issues which have troubled the Courts on many occasions. The main difficulty arises from the fact that the Court is required to assess what, if any, financial or other benefit the client would have obtained in a counter-factual world, the doorway into which assumes that the professional person complied with, rather than committed a breach of, their duty of care. Similar difficulties arise where the question of causation or assessment of damage depends upon the Court forming a view about the likelihood of a future rather than a past event.
In both those types of situation (that is the future and the counter-factual) the Court occasionally departs from the ordinary burden on a claimant to prove facts on the balance or probabilities by having recourse to the concept of loss of opportunity or loss of a chance.
The law on this basis has been settled since the Court of Appeal’s decision in Allied Maples Group Ltd v Simmons & Simmons (a firm): the taking of some positive step by the client, once in receipt of competent advice, is an essential (although not necessarily sufficient) element in the chain of causation. Applying this principle to the current case, the Supreme Court held that Mr Perry needed to prove that, properly advised by Raleys, he would have made a Services Claim under the scheme within time. In addition, it was right for the trial judge to have added the condition that it would have had to be an honest claim. The reason for this is because a client honestly describing his condition to his solicitor when considering whether to make a personal injuries claim would not be advised to do so if the facts described did not give rise to a claim. On the contrary, he would be advised not to waste his own money and time upon the pursuit of pointless litigation. Further, the court when appraising the assertion that the client would, if properly advised, have made a personal injuries claim, may fairly presume that the client would only make honest claims, and the client would not be permitted to rebut that presumption by a bald assertion of his own propensity for dishonesty. Finally, the Court simply has no business rewarding dishonest claimants. It was not, therefore, wrong in law or in principle for the trial judge to have conducted a trial of the question whether Mr Perry would (or indeed could) have brought an honest Services Claim, if given competent advice by Raleys.
The Supreme Court found that none of the grounds upon which the Court of Appeal considered that this was one of those rare cases where it was appropriate to reverse the trial judge’s findings on issues of fact was established, to the requisite high degree. Accordingly, the appeal was allowed and the trial judge’s order restored.
Whilst on the face of it, the Supreme Court’s decision appears to increase the burden of proof on claimants who bring loss of a chance claims against professionals to proving that their claim would have been “honest”, it is important to note that the claimant does not need to prove that their claim would probably have been successful. That being said, the claimant’s perception of the likely prospects of success must be relevant to causation.
Mr Perry’s claim is capable of being distinguished, as the facts which would have prevented him from being advised to bring a claim were within his own knowledge and were capable of being determined at the loss of a chance trial. However, what happens when the facts that would have been material to the advice given can no longer be established because of the original professional’s negligence? It remains to be seen whether the Courts adopt a less stringent approach to discharging the burden of proof in such circumstances.
The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.