UK: A Chance, Ever So Small

Last Updated: 18 February 2004
Article by Andrew Blair and Steve Elam

We last looked at the law relating to loss of chance in the Winter 2001 Solicitors’ Liability Briefing, and noted then that claims relating to lost litigation are on the increase. Part of the reason for this is that claims for loss of chance arguably constitute an easier route to a successful award than proving a claim on the balance of probabilities. With the latter, success can lead to a full recovery whereas failure yields nothing; loss of chance claims offer the prospect of some recovery, arguably without the same burden of proof. The recent Court of Appeal decision in Sharpe v Addison shows that even a very small prospect of success in the original claim can be sufficient to found a successful claim against the solicitor who conducted that litigation.


We assume that most readers will be familiar with the leading authorities on loss of chance, such as Kitchen v RAFA (1958) and Allied Maples v Simmons & Simmons (1991). The common thread underpinning this line of authorities is that the assessment of the chance that the Claimant has lost depends on the actions of a hypothetical third party. In lost litigation claims, the ‘independent third party’ is either the court (which will involve speculation as to what would have happened at trial) or the other party to the litigation (speculation about the basis on which the claim would have settled etc). In order to succeed, the Claimant has to show firstly that on the balance of probabilities, the litigation in question would in fact have proceeded, and secondly, that on the balance of probabilities there was a ‘real or substantial, rather than a speculative’ chance that the third party would have acted to confer a benefit on the Claimant (Stuart-Smith LJ in Allied Maples). Once the Claimant has established that the Defendant’s negligence deprived him of that ‘real or substantial’ chance, the valuation of that chance is purely a question of quantum, and can therefore, in percentage terms, be less than the balance of probabilities threshold which is 50%.

In Sharpe v Addison (2003), the Claimant pedestrian suffered serious injuries when struck by a taxi while crossing a road, and consulted the Defendant solicitor who brought an action against the driver on the Claimant’s behalf. However, the Defendant failed to notify the driver’s insurers pursuant to road traffic legislation with the result that insurers were released from their obligation to indemnify the driver. As the driver was of limited means, the claim was effectively rendered worthless. The Claimant brought an action against the Defendant in respect of the lost claim. The Defendant admitted negligence in respect of the failure to notify insurers but attempted to argue that the original claim was hopeless and that the Claimant had therefore lost nothing as a result of the negligence.

The Court applied the principles set out by Simon Brown LJ (also one of the Judges in Sharpe) in both Mount v Barker Austin (1998) and Sharif v Garrett & Co (2002). First, the legal burden lies on the Claimant to prove that there was a real or substantial rather than merely a negligible prospect of success. Secondly, the evidential burden lies on the Defendant to show that despite having acted for the Claimant and charged for the work, the claim was bound to fail. The Court emphasized that this evidential burden would be heavier when the Defendant solicitor had failed to advise the client of the hopelessness of his claim, as was the case in Sharpe, where both the Defendant and Counsel had advised the Claimant to bring the claim, and Legal Aid had been granted on that basis.

Despite this, at first instance, the judge found in favour of the Defendant, concluding that on the facts the original Road Traffic claim was worthless, primarily, it would appear, as a result of third party witness evidence indicating that once the driver had seen the Claimant there was insufficient time to avoid the accident.

The Court of Appeal reversed that decision. While the Court considered that the judge at first instance had correctly directed himself in the application of the principles in Mount v Barker Austin, it overturned his finding on the facts. Simon Brown LJ considered that there was, at the very least, a doubt as to whether the original claim was doomed to failure, and that in such circumstances, the benefit of the doubt should be with the Claimant (as he had previously observed in Sharif).

Simon Brown LJ also emphasised that it will not often be appropriate to value as nil a lost claim which the negligent solicitor had advised should be brought, and noted the unattractiveness of the argument that a solicitor who advised that Legal Aid be granted and then profited from that grant, having forfeited the claim through his negligence, should then assert that the earlier optimistic advice was itself negligent.

In justifying this outcome, the Court also made two points of particular note. First, Rix LJ drew an analogy between the test for a worthless claim for loss of chance purposes and the ‘no real prospect of success’ summary judgment test under CPR Part 24.2. Rix LJ asked himself whether the claim here would have been struck out under the latter test, and concluded that it would not, as to have done so would have required the Court to turn a trial on oral testimony into a paper exercise, an approach which has met with disapproval in the authorities on Part 24. Secondly, the Court considered the likely response of the insurer to the original claim had they been on risk, and thought that despite the very significant reduction for contributory negligence (see below), it would have been ‘far-fetched’ to consider that insurers would have proceeded to trial without the protection of some payment into court. It does not appear that there was evidence from the insurers in Sharpe, but no doubt enquiries will be made of them in future, similar cases.

Having found that the Claimant had established loss, the Court then went on to quantify that lost chance. Had the original claim proceeded, the Court felt that the Claimant’s contributory negligence would have been assessed at 75%. Of the remaining 25% of the value of the claim, Rix LJ assessed the recoverable percentage at 40% (giving a recovery of 10% of the amount claimed – 40% x 25%) on the basis that this was ‘less than half, …. as this would have been a very difficult case for the Claimant to win, to establish liability against the driver’. An overall loss of chance percentage of 10% in the original claim is extremely low. Arguably, it is too low to be considered a ‘real or substantial, rather than a speculative’ chance. Nevertheless, it was sufficient for the Claimant to succeed in this case. Although the Claimant’s original Road Traffic claim was undoubtedly weak, the Court of Appeal appears to have been influenced in its decision by the solicitor’s original advice to pursue the claim. Therefore, the Court seems to have been reluctant to conclude that the original claim did not have a value which could be quantified; but the 10% chance awarded reflected what was a very weak underlying claim.

There is no case law stating that a percentage is so low it amounts to a negligible prospect of success. It has previously been held that 20% (Hanif v Middleweeks (2000)), and 15% (Lloyds Bank PLC v Parker Bullen (2000),) is a sufficient chance of success to be more than negligible, but 10% is the lowest we have seen. Ironically, it seems that the claimant with a weak but not hopeless case may be in a better position if his solicitors are negligent in their conduct of his claim than if he takes the case to trial.


Sharpe provides further evidence of a solicitor’s difficulty in resisting lost litigation claims where the solicitor’s negligence is often not in dispute. The Courts will often be inclined to help the Claimant establish loss, and can use various tools to do so, including both the consideration of a likely payment into Court by insurers, and the Part 24.2 analogy above. In addition, the Courts will view as ‘unattractive’ arguments from solicitors asserting that an underlying claim was worthless when they had earlier advised that a claim be brought. The precise terms of advice given to clients as to the merits of a claim will clearly be important in such cases, and pessimistic advice, particularly if not fully heeded, might assist a Defendant. It appears, however, that this will continue to be a difficult area of claim for solicitors in which to avoid a finding that loss has been caused, even if the percentage might be extremely low.

The content of this article does not constitute legal advice and should not be relied on in that way. Specific advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.