UK: Supreme Court Considers Loss Of A Chance In Professional Negligence Claim

Last Updated: 3 April 2019
Article by David Reston, Sarah Irons and Hamish Hunter

In Perry v Raleys Solicitors [2019] UKSC 5, the Supreme Court considered a professional negligence claim against a firm of solicitors arising out of advice they had given an individual in connection with his claim against the National Coal Board (later British Coal) for Vibration White Finger (VWF).

Lord Briggs (with whom the rest of the Supreme Court panel agreed) restated the approach to causation which was set down in Allied Maples v Simmons & Simmons (a firm) [1995] 1 WLR 1602, namely that in cases where a claimant alleges that a breach of duty caused him to lose an opportunity: (1) the claimant must prove what he would have done on the balance of probabilities; (2) when looking at what a third party might have done, the court undertakes a loss of a chance analysis.

Background

The respondent, Mr Perry, was a former miner who had developed VWF, a condition which is caused by excessive exposure to the effects of using vibratory tools. The condition causes a reduction in grip strength and loss of manual dexterity in the fingers, leading to an inability to carry out routine domestic tasks without assistance.

Instances of VWF were widespread and a group of test cases established generally that there had been negligence on the part of the National Coal Board in failing to take reasonable steps to limit the exposure of miners to the condition. Following these test cases, the Department for Trade and Industry set up a compensation scheme in 1999 (the Scheme), the central objective of which was to enable a large number of similar claims to be presented, examined, and resolved effectively and proportionately.

Mr Perry retained the solicitors firm, Raleys, to pursue his VWF claim before the Scheme was established. Mr Perry was examined by a medical expert whose conclusions entitled him not only to general damages but also to a presumption in favour of special damages under the Scheme. However, in late 1999 Mr Perry settled his claim for payment of general damages only (in the sum of £11,600) and made no claim for special damages under the Scheme within the required timeframe.

In 2009, Mr Perry brought professional negligence proceedings against Raleys, claiming that by reason of their negligent failure to give him appropriate advice, he had lost the opportunity to claim special damages under the Scheme, which he quantified in the sum of £17,300.17 (plus interest). Raleys initially denied breach of duty and alternatively that any breach would have caused Mr Perry loss.

First instance decision

Although breach of duty was admitted shortly before trial, the judge at first instance concluded that Mr Perry had failed to prove that the breach had caused him any loss. This finding was based primarily on Mr Perry's "complete lack of credibility as a witness".

Court of Appeal decision

The Court of Appeal reversed the trial judge on causation because of two errors of law and two shortcomings as to his appraisal of the evidence. On the law, the Court of Appeal found that the trial judge had wrongly conducted a 'trial within a trial' on the question which would have arisen had Mr Perry made his claim under the Scheme (namely whether in fact he needed assistance in carrying out routine domestic tasks because of his VWF), and that the trial judge wrongly imposed upon Mr Perry the burden to prove that fact on the balance of probabilities.

The Court of Appeal also took the rare step of overturning the trial judge's findings of fact.

Supreme Court decision

On causation, the Supreme Court affirmed the principles set down in Allied Maples that the client (Mr Perry) must prove, on the balance of probabilities, that he would have made a claim had he been in receipt of competent advice. This stands in contrast with situations where the beneficial outcome is dependant on the actions of others: in which case the court will adopt a loss of chance evaluation. The Supreme Court explained that, in the former situation, where the taking of a positive step by the client is an essential element in the chain of causation, the client will be best placed to assist the court with the question of whether he would in fact have taken those steps. The burden of having to prove that on the balance of probabilities does not leave his claim "unfairly inhibited".

Flowing from that, the Supreme Court decided that "there is no reason in principle or in justice why either party to the negligence proceedings should be deprived of the full benefit of an adversarial trial of that issue." Mr Perry, therefore, needed to show that, properly advised, he would have made a claim for special damages under the Scheme within time and, importantly, that that claim would have been honest. The Supreme Court's reasons for determining that Mr Perry needed to show that his claim would have been honest were three-fold:

  • First, 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;
  • Secondly, when appraising the assertion that the client would have made a personal injuries claim if properly advised, the court could fairly presume that the client would only make honest claims;
  • Finally, "the court simply has no business rewarding dishonest claimants".

Conducting a 'trial within a trial' of facts which are relevant to the issue to be proved by the claimant on the balance of probabilities was not contrary to principle.

On the question of an appeal court overturning a trial judge's findings of fact, the Supreme Court reiterated the very high bar and exceptional circumstances required. There must either be "no evidence to support a challenged finding of fact" or a conclusion that "the trial judge's finding was one that no reasonable judge could have reached." The Supreme Court found that neither of these findings could be supported in this case.

The Supreme Court, therefore, allowed the appeal and restored the first instance decision.

Comment

Perry v Raleys is an important and emphatic restatement of the principles set down in Allied Maples. But the decision goes further than that, and makes it clear that where a client contends that he would have pursued a claim if appropriately advised it must be an honest one. This is not of itself surprising, although it is worth noting that the court, in emphasising the need for honesty, cited the "extent of dishonest claims for...whiplash...[which are]... a blot upon civil litigation", which perhaps demonstrates that wider policy considerations were at play.

Whilst this case applied to bringing legal proceedings, there is no reason why these principles should not be applied to other scenarios which do not involve initiating litigation (for example, entering into commercial arrangements).

The position in relation to what action a third party would have taken remains to be resolved on the rather hazier loss of a chance analysis, and that presents some potential difficulty (and perhaps unfairness) for defendants in these cases.

Finally, on the question of challenging findings of fact made at first instance, the Supreme Court is clear: the trial on the merits is to be the "main event" rather than a "try out on the road" (Anderson v City of Bessemer (1985) 470 US 564 (1985).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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