Supreme Court considers admissibility of evidence not available at trial when determining loss of chance

The Supreme Court case of Edwards v Hugh James Ford Simey Solicitors [2019] UKSC 54 provides useful insight as to the relevance of “new” evidence i.e. evidence which was not available at the time of the substantive matter, in loss of chance cases.

The Claimant, Mr Watkins, instructed a firm of solicitors, Hugh James Ford Simey, in relation to a claim for compensation under a scheme introduced by the Department for Trade and Industry, designed to provide tariff-based compensation to miners who had developed Hand and Arm Vibration Syndrome as a result of their exposure to excessive vibration in the course of their employment (“the DTI Scheme”).

The Scheme provided for general damages for pain, suffering and loss of amenity; and special damages for handicap on the labour market and other financial losses. A further award was provided in respect of the need for assistance in performing domestic tasks such as DIY, gardening etc. (“the Services Award”).

The Claimant was made an offer of £9,478 under the scheme for general damages but this redress did not include any allowances for a services award. Mr Watkins was advised by the Defendant to accept the offer in full and final settlement of his claim.

Negligence claim against solicitors

In 2010, the Claimant then issued a claim against the Defendant alleging that as a result of the firm’s negligence, he had lost the opportunity to bring a claim for a services award under the DTI scheme.

The lost opportunity was quantified at £6,126.22 plus interest.

Expert evidence in loss of chance cases

The Claimant and Defendant obtained an expert report who commented on whether the Claimant was unable to carry out the relevant domestic tasks without assistance, in order to support any services claim. The result of the report was that the Claimant’s diagnosis was a lot lower than was previously found when he accepted the settlement offer in the DTI scheme.

The High Court initially found that although the Defendant had been negligent, in light of the new expert’s evidence, the Claimant had in fact not suffered any loss and the award would have fallen short of £9,478 which the Claimant had already received under the settlement. The claim was dismissed and the Claimant submitted an appeal to the Court of Appeal.

Court of Appeal considers admissibility of evidence in negligence claim

The Court of Appeal held that the High Court had been wrong to conduct a “trial within a trial” to quantify the Claimant’s claim and had been wrong to rely on new expert evidence given that evidence would not have been available at the time of the DTI scheme.

Supreme Court assesses admissibility of evidence in negligence claim

The Defendant then appealed to the Supreme Court and permission to appeal was limited to the issue of whether the new expert report could be used in the professional negligence claim or whether the case had to be decided on the basis of information and facts as they were when the underlying claim was undervalued. The Supreme Court dismissed the appeal and confirmed:

  • If the Claimant pursued a services award under the DTI scheme, he would not have gone through a reassessment of his diagnosis and would not have instructed the new expert, therefore there would have been no deduction of the general damages award he received; and
  • The Court erred in taking into account the new expert’s report when determining that the lost claim held no value.

Comment

This case, is fact specific however it serves as a reminder of the care to be taken when applying authorities on adducing post-acquired evidence when quantifying loss in a professional negligence claim.

The decision shows that the Court is unlikely to accept subsequently obtained evidence which would not have been available at the time of the substantive claim when determining ‘what could have happened’.

The Supreme Court confirmed that in order to establish loss, the legal burden is on the claimant to prove that in losing the opportunity to pursue the claim he has lost something of value.  It is only if the claimant can establish that his claim had a real and substantial, rather than merely a negligible prospect of success, that it is appropriate to evaluate those chances on a loss of a chance basis.

Whether evidence obtained later is relevant to determining loss of chance will continue to be considered on a case-by-case basis.

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