Supreme Court provides updated guidance on professional negligence claims involving loss of a chance

17 May 2019

On 13 February 2019, the Supreme Court gave a judgment on the court’s approach to determining loss of chance in a professional negligence claim. The Supreme Court confirmed in Perry v Raleys Solicitors [2019] UKSC 5, that the test established more than 20 years ago in Allied Maples Group Ltd v Simmons & Simmons (a firm) [1995] 1 WLR 1602 remains applicable. This was the first opportunity that the Supreme Court had to review the rules of loss of chance since the Allied Maples case.

Background

Mr Perry was a retired miner and suffered from a condition called Vibration White Finger (VWF). After years of exposure to using construction and excavation machinery during his employment, he developed the condition known as a form of hand-arm vibration syndrome. It led to an inability to perform domestic tasks such as cleaning windows and gardening. Mr Perry instructed Raleys, a solicitors firm in Yorkshire, to pursue a claim against his former employer, The National Coal Board, after he developed the condition. The VWF scheme, put in place in 1999 by the Department for Trade and Industry to compensate workers in relation to similar employment related conditions, included two types of awards; one for general damages and the other for special damages (the latter included a ‘Services Award’). Mr Perry’s claim fell within the scheme and as such, he settled his claim in 1999, with the help of Raleys, for £11,600 for general damages. Mr Perry obtained medical evidence in 1997 that was sufficient for him to claim general damages and potentially a Services Award, however, his settlement did not include a Services Award. Mr Perry sued Raleys claiming that their negligent failure to provide advice meant that he had lost the chance to claim the Services Award, quantified at £17,300.17.

The judgment

The main issue before the court was surrounding causation as Raleys admitted breach of duty before trial. At first instance, Mr Perry’s claim was unsuccessful on the basis that he had not been able to honestly demonstrate that he would have made a claim for the Services Award but for Raleys’ negligent failure to provide him advice. During cross-examination, evidence such as photographs shared on social media, showed that his activities during retirement were inconsistent with his evidence about his disability.

The Court of Appeal reversed the judgment and awarded damages of £14,556.15 plus interest. The Court held that the judge had incorrectly imposed the burden of proof upon Mr Perry and had made an error of law regarding the issue of causation.

The Supreme Court overturned the decision and concluded that the judge’s approach at the first instance was correct. The Supreme Court reiterated the approach in the Allied Maples case.

Principles

The Supreme Court declared that a lost litigation claim is no different in principle from any other claim for the loss of chance. The Supreme Court reiterated that the test in Allied Maples is still applicable. The test is as follows:

  1. Firstly, the claimant needs to demonstrate that he would have honestly pursued a claim if not negligently advised, on a balance of probabilities. There is a presumption that such a claim would have been proceeded on an honest basis.
  2. Secondly, there should be a real or substantial chance that the third party (in this case the National Coal Board) would have acted in the way the claimant declares. If not, only nominal damages can be recovered where a breach of duty can be shown.

If that is shown, the court will assess the value of the chance on a percentage basis. For instance, if the claimant has lost the opportunity to obtain an advantage of £100,000.00 but had only a 20% chance of obtaining it, the claimant would recover £20,000.00.

Later this year the Supreme Court will rule again in relation to loss of a chance in Edwards v Hugh James Ford Simey [2018] EWCA Civ. 1299. We will continue to update you on any material developments.

How we can help

Our Commercial Disputes team is able to help you on professional negligence claims, whether you are a claimant or a defendant. Furthermore, we can advise you on a loss of chance claim for both a lost transaction opportunity or a lost litigation opportunity. We are particularly noted for our expertise in multi-jurisdictional matters, which is enhanced by the sharing of our knowledge across PwC’s global legal network, the largest of its kind.

 

Kirsty O'Connor

Kirsty O'Connor | Manager
Profile | Email | +44 (0)7710 036186

Dipti Hunter

Dipti Hunter | Senior Manager
Profile | Email | +44 (0)7841 803679

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