Supreme Court on Legal Negligence: Can new evidence be admitted when valuing a lost chance claim?

An interesting principle is expected to be expounded upon by the Supreme Court in the appeal case of Edwards v Hugh James Ford Simey (a firm) [2018] EWCA Civ 1299]. The Supreme Court hearing was on 25 July 2019, with judgment expected to be released soon. The key point which their Lordships are expected to provide authoritative guidance on relates to quantification of loss and whether evidence that would not have been able at the time of the alleged negligence could be admitted when assessing whether a claimant has lost the chance of succeeding in a claim. The answer is likely to be that new evidence should not be taken into account when valuing a lost chance.

The case is on appeal from the Court of Appeal which had overturned a ruling that Hugh James (a solicitor’s firm based in Wales) did not have to pay its former client damages despite providing negligent advice. The case involves a former miner who was awarded general damages under the government’s miners’ compensation scheme but upon negligent advice from his solicitors, decided not to pursue a claim for services, which would have compensated him for tasks carried out everyday that he could no longer do as a result of his injury.

What are the facts of Edwards v Hugh James Ford Simey (A Firm)?

The ex miner had claimed under a government scheme designed to specifically compensate former miners suffering from vibration white finger (VWF), which condition he had developed by the 1980s. In 1999, the claimant instructed his solicitors to make a compensation claim under the scheme set up by the Department of Trade and Industry, which was specifically designed to provide standard tariff-based compensation to former miners like the claimant. In 2000, the claimant had a mandated medical examination which confirmed that he did indeed suffer from VWF. Under the scheme the claimant was entitled to both a general damages award of circa £10,000 and a rebuttable presumption that he would also need assistance with everyday tasks and thus would also be entitled to further compensation (known as a “services claim”).

What were the “negligent deficiencies” in the solicitors’ advice?

The solicitors sent the claimant a standardised template client letter which negligently advised the client that to pursue the claim: “he would need to make and support such a claim with evidence, when in fact he had already done so. It advised him of delay. The letter failed to advise him that he would receive the additional interim payment soon, if he proceeded with the claim.”

In addition, the letter also implied that the claimant might be liable for the future costs of the claim and also made no attempt to provide quantification of the likely outcome if the claimant decided to pursue the claim.

As a result of this advice, the claimant accepted the offer to settle his claim for only the general damages of circa £10,000 and critically such acceptance terminated his right to the services claim.

What was decided at first instance?

In 2010, the claimant issued a claim against the solicitors’ firm alleging that the legal advice provided was negligent and as such he lost the opportunity to bring the services claim (which otherwise he would be entitled to). During the expert evidence stage of the case in 2013, the claimant was re-examined by another medical expert and he was assessed as having significantly less injuries as result of VWF than he was assessed as having in 2000. If the claimant’s medical report had been the same in 2000 as it was in 2013 (over 10 years later) then he would only have been entitled to general damages of around £2,000 (as opposed to £10,000) and crucially he would not have been entitled to pursue any services claim.

Although the judge at first instance found that this was prima facie a case of legal negligence, when it came to assessing loss, the judge found that the claimant had already been awarded damages greater than what he would be of entitled to (following the medical examination of 2013). As such, the claim was dismissed.

Why did the Court of Appeal accept that the solicitors should be held liable for their negligent advice?

The Court of Appeal found in favour of the claimant and found that the County Court had erred in its decision that the lost chance had no value based on evidence that could never have been available for the original claim. The new medical report was conducted in 2013, over 10 years after the claim on which the claimant argued he had lost the chance to pursue, the Court of Appeal (quite rightly) found that if such evidence is allowed into the quantification of loss this would “not do justice between the parties”.

What does the Court of Appeal decision mean for professional negligence cases?

The key starting point the Court of Appeal took was that when quantifying the loss in professional negligence cases that the court will assess the difference between what the claimant would have received at the notional trial date or settlement date and the amount the claimant would have received but for the negligence. Crucially, the court held that there should not be a trial of the original claim at the time of the professional negligence claim.

The Court of Appeal went to great lengths to emphasise that when a court quantifies the value of a lost chance, a high threshold should be utilised in ascertaining whether evidence that could not have been available at the notional trial date should be taken into account (and such retrospective evidence will only be allowed in exceptional circumstances).

It is likely that such new evidence in adducing the value of a lost chance will only be permitted by a court where for example the original claim is to do with fraud or where there is a “serious scale to the consequences of the supervening event” which means it would be unjust not to taken into account the new evidence.

Complaint about a solicitor or barrister?

Legal professionals such as solicitors and barristers are highly trained and rigorously regulated by the Solicitors Regulation Authority (SRA) and the Bar Standards Board (BSB) respectively. A high level of trust is placed upon such lawyers by their clients. If a lawyer fails to deliver the service to the standard expected of a reasonable professional in that speciality field, then a client has every right to bring a complaint (and court proceedings) if financial or personal loss is suffered as a result.

What is the time limit for commencing a claim against a solicitor or barrister?

Time limits and limitation periods are essential to adhere to in litigation. Missing a limitation period is fatal to the chances of success of any claim and will leave a claim statute barred.

When it comes to ascertaining the limitation date for a particular claim, there are a number of factors to consider. In simple terms, the limitation period is six years from the accrual of the cause of action (section 2, Limitation Act 1980). However, if the six year time limit has passed but you have only just discovered the effect of any latent damage, then the limitation period may be extended to three years from the date of knowledge (section 14A, Limitation Act 1980).

Another complicating factor is that in almost all circumstances, a legal professional will owe a client concurrent duties i.e. a duty in both contract and tort. This means it is up to the claimant to choose whether to bring an action in contract, tort or both. The relevance is that although both contract and tort have a limitation period of six years after the relevant cause of action accrues, in contract the cause of action accrues once the relevant contractual term is breached and in tort it accrues once damage has occurred. Therefore, limitation periods for both causes of action vary.

If you have a complaint against a lawyer, then our advice is that you take independent legal advice as soon as possible.

How do I prove that my solicitor or barrister has been negligent?

Significant judgments in cases against legal professional all highlight that three essential elements are required to prove a successful allegation against a solicitor or barrister.

The following three elements need to be proved to the civil standard of proof on a balance of probabilities i.e. it must be proven that the lawyer’s breach in the duty owed to its’ client, more likely than not caused the client to suffer loss.

1.Demonstrate that the lawyer owed you a duty of care: the boundary lines between when a tortious duty of care is owed or not owed is subject to tests that are being continuously adapted by the courts. It is safe to say that a duty of care exists where the lawyer can be shown to have objectively assumed responsibility (and the courts have demonstrated increasing willingness to find that a lawyer is liable to whomever reasonably relies on their advice). Once a lawyer accepts instructions and you have signed the client care letter, a contractual duty of care will likely be found within that document.

2. Establish that the lawyer has breached the duty of care owed to you: proving breach will obviously vary depending on the individual circumstances of the case. A claimant needs to demonstrate that the breach shows that the lawyer fell below the standards of a reasonably competent lawyer in that speciality. The particular level of experience of the lawyer (from newly qualified trainee solicitor to highly experienced partner) is not relevant- inexperience is no good argument to persuade the court to lower the standard of care. However, if a lawyer or firm hold themselves out as specialists in an area (for example solicitors specialising in conveyancing), then the court will hold them to standard of reasonably competent specialists of conveyancing law.

3. Prove that the lawyer’s breach caused loss to you: you must prove both factual and legal causation. The test for factual causation is that “but for” the lawyer’s breach you would not have suffered loss, for example if a lawyer misses a limitation date and as a result your claim becomes statute barred and you lose the chance to substantial damages in the substantive claim, factual causation is demonstrable because “but for” the solicitor’s negligence you would still have a claim that was not time-barred and still have a chance to achieving damages. Legal causation must also be proved i.e. the loss must be reasonably foreseeable at the time when the relevant duty was breached.

Case examples of Legal Professional Negligence Claims

Examples of common claims against solicitors, barristers, patent attorneys and licenced conveyancers include:

  • Failing to provide correct legal advice: a claim can be brought if a lawyer has provided a negligent legal opinion, relied upon by a claimant, which has led to personal or financial loss.
  • Failing to fully investigate or properly evidence the claim: solicitors and direct access barristers may be negligent in not gathering all pertinent information to ensure a claimant’s case is successful e.g. by not obtaining witness statements which supports the version of events.
  • Failing to fully warn the client on the risks: for example a solicitor will be negligent if a specific risk warning that a tax avoidance scheme might fail.
  • Missing a limitation date leading to a claim becoming time-barred: if the original claim had merit, then a claimant is entitled to pursue the errant solicitor or law firm for their loss of chance of success in the claim.
  • Failing to comply with a court order or deadline: if your claim has been struck out by the court after your solicitor or barrister breached an order of the Court (e.g. an unless order), then you may have a claim against the legal professional for poor performance of the litigation.
  • Poor performance of instructions: failing to adequately investigate title to property when acting for the buyer of a property; failing to advise on burdens affecting a property e.g. restrictive covenants, adverse rights burdening the property, failing to register a mortgage/debenture at Companies House if acting for a buyer client company.

Book an Initial Consultation with our Professional Negligence Lawyers

Do you have a claim against a professional? If you want expert legal advice, do not delay in instructing us so we can assess the legal merit of your case.

We can often take on such claims on a no win no fee basis (such as a Conditional Fee Arrangement) once we have discussed the claim with you and then assessed and advised you on the merits of the proposed professional negligence action.

Our expert legal team of leading Professional Negligence Solicitors & Barristers can provide urgent help, advice or representation to you. Just call our Professional Negligence Lawyers on 02071830529 or email us now.

Instruct Specialist Professional Negligence Solicitors

We are a specialist City of London law firm made up of Solicitors & Barristers operating from the only law firm based in the Middle Temple Inn of Court adjacent to the Royal Courts of Justice. Our team have expertise in advising on claims for compensation against professionals that have fallen below the standard expected, which causes clients financial or personal loss. We are experienced in bringing successful claims against negligent solicitors, barristers, financial advisers, surveyors, valuers, architects, tax advisers and IFAs.

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