In Edwards v Hugh James Ford Simey (a firm) [2018] EWCA Civ 1299, the Court of Appeal overturned a decision that the Claimant had not established causation for damages and remitted the case for rehearing.
Edwards v Hugh James Ford Simey
Facts
The Claimant brought an action against the Defendant solicitors alleging a claim for a “services award” had not been made under the VWF scheme, which compensates former miners suffering from a condition known as Vibration White Finger.
On the issue of liability, the Recorder found that, had the deficiencies in the advice been absent or corrected, the deceased would not have settled his claim as he did on 27 February 2003.
In relation to loss, the approach advanced by the Appellant was that the Recorder should assess the loss of chance as at the date of the notional settlement of the claim. The Respondent submitted that this was a case where it was “possible to measure the true loss retrospectively”.
The Recorder expressed his conclusions as follows:
“If, as here, expert or other evidence which post-dates the settlement or other disposal of the original claim, establishes beyond any (or any but negligible) doubt that that claim could and would have been resolved only in one specific way had that evidence been available to the parties and the tribunal at the time [emphasis added], then the Court in the professional negligence action has the “full facts” adverted to by Laws LJ in Whitehead and should find accordingly, thereby avoiding an uncovenanted windfall or correcting injustice to a Claimant whose case has turned out to be undoubtedly stronger than had been previously assumed. In the case of Mr Watkins, I can and should find that his chose in action has been shown to have had no value given the damages actually paid to him; another way of putting it is that, as I have found on the “full facts”, his services claim had no chance of success…”
Lord Justice Irwin at Appeal held:
“Where negligence by lawyers has prevented a claim being brought, or caused the claim wrongly to be abandoned or lost, or has led to an under-settlement, then the measure of loss is the difference between what the claimant actually got by way of compensation (whether zero, or something) and the amount he would have got, absent the negligence. Again, the claimant in professional negligence is in no different position in relation to the principle.
“Setting aside any question of after-coming evidence, sometimes examination of the original claim will demonstrate that the lost claim, or part claim, was completely hopeless, in which case the professional negligence claim is worthless. Sometimes the lost claim would have been unanswerable, in which case the full value of the original claim should be recovered. In many cases, the value of the original lost claim cannot be assessed as hopeless or cast-iron, and the court must assess a percentage prospect of success as applied to what would have been recovered if the original claim had been recovered in full. It is important to stress that in all three cases the assessment is of the value of the lost claim, not a trial of the original cause at the time of the negligence claim. That is true of the worthless case and the cast-iron case as much as it is true of cases with less certain outcomes.”
Lord Justice Irwin gives a detailed analysis of the case law in this area and in doing so remarks:
“The reason for this rather pedantic analysis is to underscore the important principle which, it seems, has often been forgotten or at least elided. In every such case, the court is seeking to establish what was lost by the claimant, as at the date, often the notional date, of the original trial or settlement. It is easy to see why the elision occurs. The value of the original claim, however assessed, becomes the major component of loss in the professional negligence action. But what the claimant should recover in the professional negligence claim is not established by answering the question: how much of the original claim can he prove now? Rather it is established by answering the question: what was the value of what he lost then?”
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