Edwards v Hugh James Ford Simey (a firm)

This case concerns the correct approach to the measure of loss in a claim against solicitors whose former client, following the solicitor’s negligent advice, abandoned an incremental claim (a “services award”) under a scheme to compensate former miners suffering from a condition known as vibration white finger [“VWF”].

The original claimant under the scheme and in this claim, Mr Thomas Watkins, died in 2014. The Appellant is his daughter, who continues the claim on behalf of his estate.

The Department for Trade and Industry [“DTI”], having assumed responsibility for the liabilities of the National Coal Board/British Coal Corporation, set up a compensation scheme in 1999. The scheme provided standardised, tariff-based compensation to former miners suffering from VWF. A claims handling arrangement [“CHA”] was set up in January 1999 and subsequently amended as required. The CHA was an agreement reached between claimants’ solicitors and the claims handling organisation, known as IRISC, who acted on behalf of the DTI. References to the CHA and “the Scheme”, here and in earlier authority, are synonymous.

The operation of the scheme is significant for the case. It was accurately described in the judgment of this court in Perry v Raleys [2017] EWCA Civ 314, in the following terms:

“6.

So far as relevant to this case, the Scheme operated as follows:

i)

When making a claim, a claimant had to submit a completed questionnaire concerning his work history. IRISC would then allocate him to a particular occupational group, depending on his likely exposure to vibration. Thereafter he would undergo a medical examination in accordance with a defined Medical Assessment Process (“MAP”) by doctors appointed under the Scheme. The examination and the resulting MAP1 report followed a standard format CHA Schedule 4(2) medical report form. The purpose of the examination was to determine whether the claimant suffered from VWF and, if so, to define the severity of the condition by reference to the stagings of a scale referred to as the Stockholm Workshop Scale. A claimant could challenge the findings of the MAP1 report, but there was no provision for IRISC to do so.

ii)

Within 56 days of receipt of the MAP1 report, IRISC was obliged to make an offer of compensation or to reject the claim with reasons. The Scheme provided for compensation to be paid for pain, suffering and loss of amenity (“General Damages”), handicap on the labour market, and other financial losses (“Special Damages”) including past and/or future loss of earnings.

7.

The Scheme was supplemented by a Services Agreement of 9 May 2000, which came to be incorporated in the CHA as Schedule 7(1). It recorded the agreed approach to compensation for services. The respective medical experts of the parties to the Scheme rejected the idea that there should be an individual assessment of each claimant’s ability to carry out particular household tasks. Instead, in the interests of consistency and efficiency, they agreed “that once the condition had reached a certain level(s) causation should be presumed and that a man could no longer carry out certain tasks without assistance” [emphasis added]. There were for this purpose 6 tasks, identified at paragraph 3.3 of Schedule 7(1) as follows:

“34;(a) gardening work, including planting, heavier garden work, grass cutting, pruning etc, summer and winter;

(b)

window cleaning, summer and winter;

(c)

DIY, normal household repairs including changing fuses, plugs, etc;

(d)

decorating, including paper hanging and painting inside and out;

(e)

car washing summer and winter;

(f)

car maintenance, the basis servicing, changing plugs, points, oil, anti-freeze and other similar tasks.”

8.

The procedure for making a services claim under the Services Agreement was as follows:

“i)

The experts produced a matrix identifying in respect of each staging of 2V and 2Sn [see definitions in paragraph 12 of this judgment] late, or higher, which tasks a claimant would be presumed to require assistance with.

ii)

Once he had a staging of at least 2V or 2Sn late, a claimant was entitled to a services award if he had previously performed one of the identified tasks, but now required assistance to do so as a result of his VWF. A claimant did not have to show that his condition wholly disabled or prevented him from carrying out the relevant task. It was enough that he could no longer carry it out without assistance: see per Tomlinson LJ in Procter v Raleys [2015] EWCA Civ 400; [2015] PNLR 24 at paragraph 11 (iii).

iii)

Factual evidence concerning the services claim would be presented by means of a simple questionnaire. Since it would be impracticable to investigate individual claims in any detail, the Scheme provided that:

“broad assumptions will be made about the average assistance that would be required [emphasis added] for the particular task by the individual at the relevant stage”.

iv)

In addition to the claimant, his current or most recent helper(s) would also complete questionnaires.

v)

A claimant would then be sent for a further medical examination (“MAP2”), which was solely concerned to consider whether there were any other conditions which, of themselves, would have prevented the claimant from undertaking the task in question. [emphasis added]

vi)

A claimant was not usually contacted by IRISC concerning his claim, but the helpers would be. This normally consisted of a telephone interview, which might last 15 minutes, during which the helper would be asked whether he/she had assisted with the tasks claimed and, if so, when they started to do so. Even where the helper was out by a few years on dates, the information in the questionnaire would still be accepted.

vii)

On receipt of the questionnaires, IRISC would consider each claim on its merits, adopting a pragmatic approach. If IRISC did not accept the claim entirely, it had to set out in detail the reasons for rejecting the claim in whole or part.

viii)

The compensation was calculated by application of a multiplier/multiplicand approach, and an index-linked tariff was set in respect of each task according to the particular staging.

ix)

IRISC could reject a claim for services in whole or in part if a claimant’s work history after leaving the mining industry was such as to indicate that his ability to carry out the relevant tasks was not impaired. However, in order to be entitled to rebut the presumption that a man with a particular claimant’s stagings could not carry out the relevant task without assistance, IRISC had to discharge the burden of establishing that the work actually carried out by the claimant was such as to demonstrate that he could not reasonably be expected to carry out all aspects of the task without assistance.

x)

Pending resolution of the services claim, the claimant was entitled to receive an interim payment in respect of his claim for general damages and handicap on the labour market. By February 2001 the size of the interim payment had increased to 92.5% and by 20 November 2002 an agreement had been reached that it would be 100% of the claim.

9.

Unlike ordinary civil litigation, claims under the Scheme were not subject to a particularly robust process of assessment …”

A considerable number of claims have arisen against various firms of solicitors, alleging failures of advice and representation to claimants under the scheme. In 2010, HHJ Hawkesworth QC gave directions in relation to the trial of such claims, and in particular in relation to “a failure to properly advise the claimants in relation to a services award”. In an unreported Ruling on 3 May 2011, the judge stated that “these claims are for the lost chance to bring a claim under the MAP 2 procedure”. He then proceeded to deal with argument as to the approach in such claims, as follows:

“5.

The purpose of the hearing ordered on 22^nd October was to deal with two issues: the expert medical evidence, its nature and extent, and disclosure. The issue in relation to the medical evidence appeared to be whether, as the claimants contended, its scope and nature should be a replication of the MAP 2 procedure which involved a medical examination by a GP or equivalent or whether, as the defendants contended, there should be a more comprehensive medical examination by a consultant specialist which could revisit the original diagnosis of VWF, as well as address the issue of comorbidity; the latter being the only issue which was required to be addressed under the MAP 2 medical examination.

6.

The argument addressed on behalf of the claimants was, again put very shortly, that because the MAP 2 examination did not revisit or reopen the original diagnosis it would not be appropriate for the medical expert in these proceedings to address that issue. As Mr Kent put the matter in the course of his submissions, it would be akin to reopening liability where a claim for under-settlement was being advanced in a case where the original defendant had either admitted liability or been found liable by the court.

7.

During the course of submissions, however, it became clear that the defendants were not contending for a medical examination in order to revisit the diagnosis of VWF [emphasis added], but in order to evaluate the claimants’ case on causation. Miss Foster, who represented the defendants Raleys, Richard Knaggs, Godloves Saffmans and Branton Edwards submitted that medical evidence was required in order that the defendants could investigate and evaluate the claimants condition from the date of the alleged negligent advice up to the present, a period probably in excess of ten years or so, in order to determine whether and to what extent the claimant had been disabled by his HAVS injury [see definition in paragraph 10 of this judgment]. This would shed crucial light upon whether his failure to pursue a services claim arose from negligent advice or from an inability to truthfully assert that he had lost the ability to perform those specified lists of activities (DIY, car servicing, etc) which would enable him to bring a claim for a services award [emphasis added]. She submitted by detailed reference to the MAP 1 procedure that this medical examination was predominantly directed at diagnosis and staging of the HAVS condition, not in assessing the level of disability present. Miss Foster did not seek to say that the fact of a MAP 1 diagnosis and its consequences for the subsequent progression to a services claim could be called into question. However, the defendants were entitled to investigate the implied averment that had the claimant been properly advised he would have made a services claim [emphasis added].”

HHJ Hawkesworth QC recited the figures then available indicating the scale of the scheme and of possible legal negligence claims arising. As at 15 May 2005, 107,065 claims had been made and settled, under the Scheme, where the claimants were assessed as Stage 2B or above, in other words the point where a presumption of a services claim arose. Of those, 54,567 had settled without making a claim for a services award: almost exactly half of the cohort. The judge observed that “plainly not all of those” would be able to mount a claim based on legal negligence. The passages above, and in particular those emphasised, are important for the contention by the Appellant that the purpose behind the expert examination in the legal negligence proceedings was what might be described as a matter of “pure” causation: would a claimant, properly advised, have made a services claim at all?

It was an agreed position before HHJ Hawkesworth QC that medical experts would be instructed jointly. There was argument as to the kind of expert to be instructed. The judge resolved that argument as follows. He said:

“13.

Accepting therefore that the thrust of the medical examinations in these cases will be to assess the level of disability, the extent of any comorbid conditions and their effect, and to test the credibility of the claimants’ case, there can, it seems to me, be no valid objection to examination by a vascular surgeon whose level of expertise in diagnosing the nature and extent of disability caused by a HAVS injury will be superior to that of a non-specialist.

14.

The background of the doctors who carried out the MAP 2 examinations appears to have been in general medicine and occupational medicine. They were specially trained to carry out particular diagnostic tests and to put questions in the form of a structured but brief interview. That type of investigation is very far from the nature of the task in the medico legal context required by this litigation. Given the nature of these claims which allege professional negligence and are therefore of a considerable importance to the defendants concerned, and albeit that the claims are of relatively modest value individually (from a few thousand pounds up to £30,000 approximately), I do not consider that it is justifiable to limit the qualifications, experience or specialisation of the medical experts to any particular level or field of expertise, save to permit a consultant’s examination in the appropriate areas of speciality.

15.

I have already indicated the nature and scope of the medical evidence which the parties may be permitted to adduce which will centre upon the nature and extent of any disability caused by a HAVS injury.”

It would seem to follow from the above that HHJ Hawkesworth QC was ruling that experts might now report who were at a higher level of specialism and expertise than those who would have in fact conducted the MAP2 examinations.

The Judge further directed that specific information should be provided by each claimant so as to help with an assessment of the disability caused. Although these Respondents were not parties to that Ruling on 3 May 2011, it appears that all the representatives in subsequent actions have followed the same approach. Directions have been given in this case consistent with the Ruling of HHJ Hawkesworth above.

The deceased, Mr Watkins, was a miner between 1964 and 1985. It is agreed that in the course of his work he was required to use vibratory tools and that in due course, as a result of such exposure, he developed VWF, which is itself a form of Hand/Arm Vibration Syndrome [“HAVS”]. As Recorder Miller found, in the judgment under appeal dated 16 May 2016, the symptoms of VWF began to affect Mr Watkins no later than the early 1980s. After leaving British Coal, Mr Watkins worked as a driver of road sweeping vehicles until retirement in 1997. Shortly thereafter he was diagnosed with osteoarthritis of the knees, which became increasingly acute, and meant that from 1998 Mr Watkins was in receipt of Disability Living Allowance.

In 1999, Mr Watkins instructed the Defendant firm to act for him in making a claim under the scheme. In January 2000, he attended for a medical examination by a General Practitioner Dr Chadha, who had been appointed under the Scheme to assess at a “MAP 1” examination whether he was suffering from VWF and if so how his condition should be categorised under the Stockholm Workshop Scale.

Dr Chadha concluded that Mr Watkins was suffering “at the level of 3V, 3Sn bilaterally”. The “V” score is a measure of the vascular symptoms and depends largely on reporting from the patient. The documentation from this examination was before us. Mr Watkins complained of “whiteness of fingers in cold weather, fingers go numb when it is cold and there is a tingling sensation in the fingers. Sometimes his fingers tend to lock.” In describing his vascular symptoms, Mr Watkins confirmed that the blanching happened all year round but stated that the “most common circumstances” when blanching arose was “going out in cold weather”. Then in diagrammatic form, Dr Chadha marked the extension of blanching as affecting all four fingers on each hand (but not the thumbs) and extending right down the length of the fingers. The sensori-neural signs and symptoms were assessed partly from the account of Mr Watkins but partly by standardised testing, the results of which were recorded. The result of that testing was the “3Sn” marking.

Following this examination, the outcome meant within the terms of the scheme that Mr Watkins was entitled to a general damages award standardised at £9,478, and the findings created “a rebuttable presumption that Mr Watkins did require assistance with the tasks prescribed under Schedule 7 of the CHA”. That is to say there was a presumption that he had a “services claim”.

On 12 February 2003, IRISC wrote to Mrs Barbara Kinsey, the employee of the Respondent acting for the deceased, and made an offer of £9,478 “in full and final settlement” of the claims under the scheme. An interim payment had already been made, and on acceptance a further sum of £3,119.20 would be paid. As the Recorder found, the deceased had already lodged his claim for services. If he accepted the offer, that claim would be at an end. If he wished to pursue the claim he would receive a further interim payment of £2,408.35 and he would have to attend a MAP2 examination. It was also the case, as Mrs Kinsey was of course aware, that if the services claim was not agreed, the deceased could pursue his claim in the County Court, but once the matter was litigated in the ordinary way, the deceased would be at risk of having to reimburse the DTI if his recovery from the Court turned out to be less than the payments he had received under the scheme. Legal action was an alternative, not a complement, to the scheme.

On 18 February Mrs Kinsey wrote to the deceased a letter of advice, which the Recorder found was “misleading or deficient”. It was a standardised client letter, not bespoke, and it is clear will have been similar or identical to that written to many others. It advised the deceased that to pursue the case 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. The letter was concluded in terms which (as the Recorder found) the deceased was likely to misunderstand, as meaning that unless the VWF was the only cause of his inability to perform a task, he had no services claim in respect of that task. In fact the Scheme provided a sliding scale in relation to co-morbid conditions, and it would only be where a relevant disability arose completely from the co-morbid condition, that the claim for the relevant task would be rejected. The letter also implied that the deceased might be liable for future costs of the claim, whereas his “no win, no fee” claim would apply throughout. Lastly, the letter made no attempt to quantify the likely outcome for the deceased if he pursued his claim.

The Recorder’s conclusions as to the negligent deficiencies in this advice are unchallenged on appeal.

On 23 February 2003, the deceased spoke to Mrs Kinsey on the telephone and instructed her in the following terms, recorded in her file note:

“ … He said that he didn’t want to proceed any further with the special damages claim as he had other conditions and had various operations which in his view prevented him from carrying out certain tasks. He therefore was quite happy to continue with general damages only and would accept the offer…”

The Recorder went on to find 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. The deceased subsequently learned that there might have been deficiencies in the advice he was given and he then began this claim. The Recorder considered limitation and decided that issue in the Appellant’s favour.

The Recorder then turned to the question of loss. Here the principal evidence came from the report of the vascular surgeon Mr Tennant, who was instructed jointly following the familiar pattern set down in the directions given by HHJ Hawkesworth QC, and indeed directions in this case specified that approach.

Before considering Mr Tennant’s report it is helpful to consider one or two factual and procedural matters. The deceased had signed a statement dated 28 January 2003, giving a brief description of his condition and its origin. He stated that he began with symptoms of VWF in 1974, at which point his symptoms were “not particularly severe”. He had minor tingling in the tips of his fingers and the “main problems I noticed at that time were picking up small or flat items of a surface” (sic). The statement goes on as follows:

“My current symptoms are that I have problems with grip and frequently drop things. My main problems are with small items, particularly coins I cannot pick these up at all from a flat surface. My problems also exist with DIY, where I have no feeling in my figures when holding small parts.

I notice my figures now go white and my hands become quite cold and numb with whitening of my figures all the way down to my palms. I also notice tingling and numbing which lasts longer and are more frequent throughout the day.

My symptoms today are as they were in 1982 when I left the coal industry and have not deteriorated in the interim.

My symptoms did however deteriorate between 1975 and 1982 when the symptoms significantly worsened.”

After instructing his fresh solicitors, the deceased made a further statement on 15 September 2008. In the course of that statement he described how he came to complete the questionnaires for the purpose of the services claim in 2001, indicating through the questionnaires that he had difficulties with gardening, window cleaning, DIY, decorating, car washing and car maintenance: all derived from the difficulties with his hands. He confirmed that his son and daughter gave assistance to him in those tasks. He confirmed that he did have arthritis in his knees, however “this would not prevent me from carrying out any of the tasks which I seek to claim for”. In a further statement of December 2011, the deceased gave additional details about the assistance provided to him by his children. That level of support had been confirmed by questionnaires completed by the deceased’s children in 2001 and was again confirmed in witness statements from the Appellant and the deceased’s son following the death of Mr Watkins in 2014.

Mr Tennant saw Mr Watkins on 1 May 2013. A full medical history was available to Mr Tennant. Mr Tennant recorded the deceased as noticing stiffening of his hands during cold conditions from the 1960s. There was white discolouration of his hands in the cold, which “affected all four fingers of both hands to the level of the distal interphalangeal joint”. While the fingers were white they were numb, and there was some discomfort on recovery. Mr Watkins told Mr Tennant that his last exposure to vibration was when he left mining in 1984/85. Since retiring “he does not often go out in the cold but cannot define a date at which his symptoms plateaued”. In describing his current symptoms, Mr Watkins was recorded as saying that “his hands are sometimes stiff and tingling, even in a warm room. When it is very cold his fingers may whiten as described above, but this is uncommon, and last happened two/three months prior to interview”.

According to his report, Mr Tennant then asked Mr Watkins about the various listed tasks. The deceased said that his children wash his car but “he thought that he could if required”. He had never washed his own house windows. He said that his children have assumed responsibility for decorating “but that giving up had nothing to do with his hands”. As to DIY, Mr Watkins said that he could change a light bulb but could not change a 13 amp plug as it is too fiddly. He could not handle the screws for putting up a shelf for the same reason. He said that he could mow the lawn if he had to, but his daughter did it. “If he were to try digging, he is afraid that the metal part of the spade would bring on whitening symptoms”. As to car maintenance, he said that he could “check and fill all the appropriate reservoirs under his car bonnet”. He might be able to change a wheel but thought that the metal brace would cause symptoms of whitening.

The report then recorded the examination of the deceased, including the following observations, worth recording here partly as evidencing the difference of approach in this expert report from the MAP2 process::

“Mr Watkins walked with an antalgic gait because of his left knee. He had evidence of Dupuytren’s contracture of the right little finger, with obvious old trauma and scarring of the same finger. The interphalangeal joint of the right thumb was fused.

Grip strength was 4/5 bilaterally and painful. Allens test was negative bilaterally.

Blood pressure as measured using the Korotkov sounds was 150mmHg systolic bilaterally.

There were no arterial bruits. All upper limb arterial pulses were present.

Moving 2-point discrimination was normal bilaterally.

Light touch was normal to a standard 10g filament bilaterally.

Dexterity using a simple button transfer test was mildly impaired bilaterally.

Vibration sense was normal to a standard stimulus bilaterally.

Sharp/blunt discrimination was normal bilaterally.

Tinels test for carpal tunnel syndrome was normal bilaterally.

Phalens test for carpal tunnel syndrome was positive on the left.

Cervical spine movement was full in all directions, and did not cause any upper limb symptoms.

Adsons test for thoracic outlet syndrome was normal bilaterally.”

Mr Tennant gave his comment and opinion as follows:

“Mr Watkins gives a good description of vasospasm and is graded 1V in this report as the white discolouration reaches the distal interphalangeal joint.

The only abnormality on testing was of a mild lack of dexterity. As there is no other sensory loss in a warm environment, in my opinion this amounts only to HAVS grade Sn1. There is certainly no justification for Sn3 at this examination, and to reach Sn2 would require evidence of reduced sensory perception, which I could not demonstrate.

Grading of 1V, 1Sn would not be expected to produce any disability in the domains tested below. Mr Watkins’ knee arthritis would be expected to produce significant disability, but is the only comorbidity to take into account.

The tables below are constructed on the basis of 3V, 3Sn as at the MAP1 report, which would be expected to produce severe or complete disability in the tested domains.”

In June 2013, Mr Tennant made further written comments in response to questions from the Appellant’s solicitors:

“2.

Mr Watkins described vasospastic blanching to me at interview. That, and the description of tingling even in a warm environment, meet the criteria for diagnosis of HAVS.

3.

The technical report on tests carried out on Mr Watkins at MAP1 justify a grading of HAVS 3Sn [emphasis added] on the basis that the total vibrotactile score at MAP1 was 22 (left) and 23 (right) and the threshold for a grading of 3Sn is 19. The grading of his vascular component was made on Mr Watkins’ description of the extent of blanching, which according to him reached the metacarpophalangeal joints, justifying a grading of 3V.

…

6 (ii) As detailed in my report, in connection with decorating rather than DIY, Mr Evans [emphasis added] clearly indicated that he gave up because of reasons unconnected with his hands.

(iii)

Mr Evans [emphasis added] clearly stated in the voice file that the white discolouration extends only to the distal interphalangeal joint. Numbness follows the extent of vasospastic blanching and does not extend beyond it. It is not reasonable to suppose that his fingers were “completely numb” when only the distal phalanges are blanched.”

Following receipt of the report and letter from Mr Tennant, the Respondent amended the defence in October 2015. The amended defence directly avers that “in the MAP1 medical report, Dr Chadha mistakenly assessed the deceased’s VWF staging at 3V, 3Sn bilaterally” (despite paragraph 3 of Mr Tennant’s letter set out above: see paragraph 26) and the Respondent relied on the conclusions of Mr Tennant that the staging “is in fact 1V, 1Sn bilaterally”. The amended pleading suggests that “Mr Tennant’s findings mean that the true staging of the deceased’s VWF can never have been worse than 1V, 1Sn bilaterally”. The pleading went on to recite:

“42.

… IRISC did not accept Dr Chadha’s report, nor were they bound by it. It remained open to IRISC to revisit both the issue of diagnosis and the issue of staging, if they chose to do so. If in the course of investigating a services claim IRISC had come into possession of information that cast doubt on any of the information contained in Dr Chadha’s report or on Dr Chadha’s conclusions, then there would at the very least have been a significant risk that IRISC would have revisited the issue of diagnosis or the issue of staging or both.”

It was pleaded that “the claims made by the deceased in the services questionnaire must have been untrue”, reciting a summary of the answers recorded by Mr Tennant and contrasting them with his earlier answers and the earlier classification of Dr Chadha. The amended pleading in its material parts recites:

“71.

… Mr Tennant, the jointly instructed expert vascular surgeon, has concluded that the Deceased’s VWF staging is 1V, 1Sn bilaterally. Given the known history of VWF, Mr Tennant’s findings mean that the true staging of the Deceased’s VWF can never have been worse than 1V, 1Sn bilaterally. Accordingly, the Deceased was never eligible to submit a services claim under the terms of the CHA and the Services Agreement. Nor was the Deceased eligible to submit a services claim at common law, since as Mr Tennant has pointed out in his report of 17^th May 2013, the Deceased’s true VWF staging of 1V, 1Sn bilaterally would not be expected to produce any disability in relation to any relevant task.

71A. Further and in any event the terms of the CHA and Dr Chadha’s report did not entitle the Deceased to submit a services claim. The only effect of Dr Chadha’s mistaken staging assessment was to avoid the need for the Deceased to prove by medical evidence that he was incapable of gardening, DIY, decorating, car washing or car maintenance. It would still have been necessary if the Deceased had wanted to pursue his services claim for the Deceased to persuade IRISC that the deceased himself had performed the relevant tasks prior to the onset of his VWF, and that since the onset of his VWF he had received assistance with those tasks. It is clear from the information given by the Deceased to Mr Tennant that the claims to this effect made in the Deceased’s services questionnaire were untrue and that the Deceased himself must have known that they were untrue at the time that he completed the services questionnaire.

72.

Even if the Deceased had persuaded IRISC of these matters, IRISC would have required the Deceased to undergo a further medical assessment to determine the extent to which any other medical problems would have caused or contributed to his need for services, an assessment which could have led to the reduction of any services claim by up to 100%. It is clear from the instructions given by the Deceased to Ms Kinsey on 23^rd February 2003 that the Deceased expected this further medical assessment to show that he would have been incapable of doing the relevant tasks in any event because of his other conditions and various operations. It is clear from the information given by the Deceased to Mr Tennant that this expectation on the part of the Deceased was correct, and that any MAP2 assessment would have led IRISC to conclude that any genuine difficulty which the Deceased might have with any of the relevant tasks was attributable to his co-morbid medical conditions and not to his VWF.”

This Court was informed in the course of submissions that the Respondent had applied for permission to call Mr Tennant to give oral evidence, but the application was refused. That decision was not appealed. Therefore the Recorder did not have the benefit of any oral evidence from the expert, and the Appellant’s counsel could not test the evidence in cross-examination. There was therefore no evidence from Mr Tennant directly addressing the apparent inconsistencies between the MAP1 examination results, whether based on the deceased’s account of the level of blanching, or based on the technical test results in 2000, or compared with the findings of Mr Tennant in 2013. There could be no testing of Mr Tennant’s opinion on the reliability of the deceased’s earlier accounts as to the extent of his VWF compared with the account given to Mr Tennant. Nor could Mr Tennant’s account be elicited as to what probably would have been the outcome of the MAP2 process as it actually would have been carried out under the Scheme. Nor could there be exploration into whether the reference to “Mr Evans” whose voice file was checked was merely a typing error, as opposed to an erroneous substitution. Mr Watkins was of course already dead, and so could give no evidence himself.

At the close of the hearing before this Court we were given the skeleton arguments of the parties from the trial. The Appellant Claimant had invited the Court to consider the question of causation of loss as the “live issue” in the case. The Claimant submitted that:

“The Defendant, quite properly, identified some inconsistencies in Mr Watkins’ answers over the years. The issue… is whether those inconsistencies are the product of a fraudulent claim, or innocent (such as passage of time/poor historian/lack of sophistication) etc.”

and suggested the latter.

The Respondent Defendant’s submissions to the Recorder as to what loss had been caused did not consist of the simple suggestion that the deceased had exaggerated in his original description of his condition. The Defendant relied on a number of authorities bearing on the approach to loss in professional negligence actions. The focus of their submissions was that a Claimant in such an action cannot recover for a “loss of the opportunity to claim compensation to which he was not entitled”. The Defendant relied on the evidence of Mr Tennant to show that the claim never had value beyond the award already made. In other words, before addressing the question of deceit or fraud, the Defendant submitted they were entitled to rely on the after-coming evidence, in a straightforward fashion, to contest the value of the claim, thus placing the burden upon the Claimant to show the value of the claim at the time of the negligence trial, rather than evaluating what he would have recovered at the time of the claim.

The Defendant then did go on to suggest that the deceased had mounted a claim which was “untrue”.

It was against that backdrop that the Recorder reached his conclusions on the causation of loss. He noted that Mr Tennant did not give oral evidence, but stated:

“If he had been of the opinion that Mr Watkins’ condition had, or could have, materially improved since Dr Chadha saw him in January 2000, he would surely have said so. I accept Mr Tennant’s conclusions and find that Mr Watkins’ condition was, from its onset, continually to be categorised as no worse than 1V, 1Sn bilaterally. Under the terms of the DTI compensation scheme, such a finding would have been automatically fatal to any claim for services and would have resulted in a valuation and offer of only £1,790 for general damages. If the matter had not settled but had been taken to the County Court general damages could not have exceeded £4,500. … The Defendant accordingly says this: the value of the chose in action arising out of the VWF was always less than the settlement figure which they achieved for their client and so the claimant’s loss is nil. The Court it is said does not have to and so should not assess the chance that was lost in 2003: it is possible to measure the true loss retrospectively and with objective accuracy by reference to the evidence now available (from Mr Tennant) and that is the proper approach to quantifying damages here.”

The Recorder considered the submissions of counsel. The approach advanced by Mr Copnall for the Appellant was that he should assess the loss of chance as at the date of the notional settlement of the claim. Mr Jackson for 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:

“I would not characterise the two approaches to the assessment of loss, respectively urged upon me by counsel, as mutually exclusive; they are complementary and both potentially relevant, depending upon the facts of the individual case. 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, for the same reason: it is beyond peradventure that faced with Mr Tennant’s clinical findings and conclusions any award would have fallen short of £9,478. It is fanciful to assume otherwise.

In other cases, such as Barnaby, how the original case would have been resolved, even if all the material evidence now available had been to hand at the time, will not be clear beyond doubt; in that event the Court in the professional negligence action must of course assess the value of the lost chance.”

The Recorder made no finding that the deceased had lied or sought to deceive in the course of his claim.

The Appellant relies on the principle of full compensation as the General Rule (as Mr Copnall puts it). It is an error, says the Appellant, for courts to take into account evidence which was not, and could not have been, available at the time: here the report of Mr Tennant.

Mr Copnall cited the decision of this Court, again concerning this scheme, in Raleys Solicitors v Barnaby [2014] EWCA Civ 686. In that case, the trial judge had found, as a matter of causation, that the claimant would have made a limited services claim under the scheme. There had been a MAP1 examination by a Dr Ryan. The original grounds advanced in that case were essentially directed at the facts (Raleys v Barnaby, paragraph 6). Mr Pooles QC, appearing for the Defendants in that case as here, “sought to present it as embracing a legal issue”, which he said was derived from a misapplication of the approach described by Rix LJ in Dixon v Clement Jones Solicitors [2014] EWCA Civ 1005, at paragraph 27:

“There is no requirement in such a loss of a chance case to fight out a trial within a trial, indeed the authorities show as a whole that that is what should be avoided. It is the prospects and not the hypothetical decision in the lost trial that have to be investigated. Moreover, one of the possibilities, as the cases repeatedly mentioned, of the loss of a valid and non-negligible claim is that whatever might have been the result if it had been fought out, the claim may well have been settled. That again emphasises that the test is not to find what the original decision of the underlying litigation would have been as if that litigation had been fought out, but to assess what the prospects were.”

The submission from Mr Pooles was that “the judge failed to take into account aspects of the evidence which were inconsistent with Dr Ryan’s MAP1 assessment and thereby disabled himself from making appropriate findings”. Hence the Defendant sought to open the additional legal argument.

The Court in Raleys v Barnaby declined to permit variation of the Grounds of Appeal. In that case it had been put to the Claimant that he had been pursuing a fraudulent claim, in claiming symptoms which would have enabled a services claim. The approach of the Defendant at trial “amounted to a full frontal attack on Mr Barnaby’s credibility”. The trial judge accepted the elements of services claim which had been “ticked” by the Claimant, but rejected other aspects of the claim as being inconsistent with his contemporaneous instructions to his solicitors, and found that he would only have pursued part of the claim, consistent with those instructions. In his judgment, Maurice Kay LJ found the Claimant to be a “poor historian and an unimpressive witness” but found the trial judge’s rulings “unassailable” (paragraph 15). The Court rejected the attempt to broaden the appeal beyond the challenge to the judge’s findings, and rejected the attack on those findings.

The Appellant submits that the Respondent here repeats the error of approach in Raleys v Barnaby.

The Appellant relies on the general principle of restitutio, re-stated by Laws LJ in Whitehead v Searle [2009] 1 WLR 558 at paragraph 17. I quote the passage below. Mr Copnall accepted that this Court in Whitehead v Searle went on to state that there are cases where the court must depart from full restitution. The case arose from a tragic story, which gave rise to the different approach. The Claimant was the father of a child born with spina bifida. But for the clinical negligence, the child would never have been born. The mother therefore pursued a “wrongful birth” claim. However, she committed suicide before the claim was set down for trial. The claim should have been concluded before the death and it was negligently under-settled. In suing the lawyers in respect of the under-settlement, the father in his representative capacity sought the damages which would have been recovered had the action been concluded before the mother’s death.

It was against that background that Laws LJ said:

“17.

... The purpose of an award of damages is to provide just compensation for a wrong done to the claimant. In most cases that purpose is given effect by the general rule that the claimant is to be restored to the position in which he would have been had the wrong not been committed, so far as that can be achieved by money. To attain that result, the court has to reconstruct events which in fact never happened, but would have happened but for the wrong. But there may be cases in which this exercise produces a serendipitous benefit. In a very different context from the present, Lord Nicholls of Birkenhead said in Attorney General v Blake [2001] 1 AC 268, 278:

“As with breaches of contract, so with tort, the general principle regarding assessment of damages is that they are compensatory for loss or injury. The general rule is that, in the oft quoted words of Lord Blackburn, the measure of damages is to be, as far as possible, that amount of money which will put the injured party in the same position he would have been in had he not sustained the wrong: Livingstone v Rawyards Coal Co (1880) 5 App Cas 25, 39 … But the common law, pragmatic as ever, has long recognised that there are many commonplace situations where a strict application of this principle would not do justice between the parties. Then compensation for the wrong done to the plaintiff is measured by a different yardstick.”

18.

In a professional negligence case against legal representatives based on delay in the conduct of litigation the court is considering what the outcome of a claim would have been had it been resolved, contrary to the fact, at some time significantly earlier than the date of the court’s deliberations. In such a case events may have happened since the putative date of the original claim’s resolution, and before the court deals with the matter, which undermine or frankly contradict the view that just compensation for the lawyers’ wrong is to be calculated by reference to what the outcome of the original claim would have been.

19.

That is what Mr Livesey says has happened here. I would put it in this way. The law entitled PM, and following her death the estate, to recover damages against the health authority limited to losses incurred in her lifetime. Had she obtained judgment in the first action while she lived, these losses would have been calculated, by the law’s usual methods, to include future loss stretching at any rate some years ahead. If she had died shortly after obtaining judgment, then subject to one qualification which I will mention the law would not have required her estate to restore any part of the damages to the health authority; but the estate would have in its hands a sum by way of damages which, given the events which had happened including the death, exceeded the amount which, given the death, the law of damages would have allowed. So much is all the clearer when one recalls that there is no question of future losses by way of care costs being recovered at the suit of David himself. He could not have been substituted as claimant for his mother after her death: see McKay v Essex Area Health Authority [1982] QB 1166 to which I have already referred. Accordingly, the court should not proceed in the second action on the footing that HPN owed a duty to recover for PM what would prove, albeit after the event, to exceed the estate’s entitlement.”

For those reasons, the father failed in that aspect of his claim.

The Appellant also relies on the decision of this Court in Perry v Raleys where, in the context of this Scheme, the Court rejected a similar argument to that advanced here. In that case, Mr Perry was assessed in an independent medical report as 3V 3Sn bilaterally. The report was accepted by IRISC and the Claimant never had to undergo a MAP1 assessment. Due to negligence, he did not proceed with a services claim.

In Perry v Raleys,the Defendants sought to “put [the Claimant] to proof of his actual condition at the time”: see paragraph 12 of the judgment. They suggested he would not have pursued a claim for services, and thus had not settled at an undervalue. The trial judge accepted those submissions, giving reasons summarised by Gloster LJ as follows:

“17.

… However, the judge also held that Raleys' negligence had not caused Mr Perry to settle his claim at an undervalue. That was because he concluded that Mr Perry had not established that he “honestly” met the “factual matrix” for making a claim for “services”. That was because, having heard evidence, the judge did not accept that Mr Perry could not perform unaided the tasks which he did carry out unaided before the onset of VWF. In other words, the judge held that Raleys succeeded in their defence as summarised above.

18.

The judge went on to hold that, had Mr Perry satisfied him on the issue of causation, namely that the “factual matrix applied and that he would have acted differently if he had received competent advice”, he would have held that Mr Perry should receive 80% of the value of his net services claim to reflect his prospects of success.”

Gloster LJ, with whose judgment MacFarlane LJ and Sir Stephen Tomlinson agreed, was highly critical of the judge’s approach. The judge had accepted that Mr Perry does and did “suffer from VWF at 3N bilaterally, indicating that he did not intend” to go behind Professor Kester’s findings, and thus accepted that the Claimant “clearly did suffer from VWF to a high degree” (paragraph 22). Nevertheless, the judge went on to find that he was not persuaded Mr Perry suffered from the necessary disabilities to a sufficient degree so as to require the services under the scheme. In other words, the trial judge substituted his own judgment on that issue, instead of following through the consequences as they would have flowed from the operation of the scheme.

Gloster LJ observed:

“27.

In my judgment, the real issue here is whether it was appropriate for the judge to have conducted a trial within a trial as to whether, on the balance of probabilities, Mr Perry was in fact unable to carry out the relevant tasks without assistance, which would or might have been a relevant issue in any proceedings against the DTI, had it challenged the assumptions under the Scheme that Professor Kester's findings in relation to Mr Perry's VWF staging meant that he was entitled to a services award. The judge clearly thought that he was entitled to carry out such an enquiry on the balance of probabilities, when investigating, as a question of causation, the issue as to whether Mr Perry would ever, or could ever honestly, have brought a services claim. He did not regard the honesty issue as one that should be taken into account by the court at the stage of calculating the chances of the success of any such claim. Rather, he regarded the honesty issue as one which Mr Perry had to establish as part of what he referred to as “the factual matrix”.

28.

In my judgment, the judge was wholly wrong, both as a matter of principle and in the particular circumstances of this case, to have engaged in the kind of factual determination which he did as to whether, on the balance of probabilities, Mr Perry could have brought an “honest” services claim. In reality the judge carried out a determination on the balance of probabilities as to whether Mr Perry would have succeeded in his services claim against the DTI.”

The judgment then contains an extensive review of the latest edition of Jackson & Powell on Professional Liability and of authority, which it would not be helpful to quote or even summarise. Gloster LJ stated her conclusion as follows:

“34.

Thus the correct approach, based on this court's analysis in Hanif v Middleweeks and Dixon v Clement Jones Solicitors (A Firm), is that, in a negligence claim against solicitors for negligent omission as a result of which no claim against a third party is pursued:

“the court only assesses prospects and awards damages on a percentage basis unless it is overwhelmingly clear on the material before the court that the claimant was almost bound to succeed or had, conversely, only a negligible prospect of success, in which case the court may move to a 100% or nil award”.

The uncertainty to which I refer above perhaps lies in deciding when the case is so “overwhelmingly clear on the material before the court” that a judge can decide that there is no realistic prospect of success in the postulated claim.

35.

In such a case a judge should not, in my judgment, in the context of determining in the negligence action the simple causation issue, “would the claimant have brought a claim if properly advised?” determine on the balance of probabilities what would have been a, if not the, principal issue in any underlying claim. Here, in my view, the judge should not have attempted to determine the issue as to whether, under the Scheme, the claimant, in the light of his VWF condition, was genuinely (i.e. honestly) unable to carry out the relevant tasks without assistance and therefore entitled to a service award. Nor can the defendant raise the issue of the claimant's alleged dishonesty for determination on the balance of probabilities on the grounds that it raises an issue of public policy; see Hanif v Middleweeks.

36.

There are sound public policy reasons for such an approach. It is far too easy for negligent solicitors, or, perhaps more pertinently, their insurers, to raise huge obstacles to claimants such as Mr Perry from pursuing their claims, if the latter are required, effectively, to prove in the litigation against solicitors that they would have succeeded in making such a claim against the third party. Raleys' defence in the present case is an unfortunate exemplar of insurers putting the claimant to proof of every issue in the underlying claim. Such an approach is intellectually unsound; it requires the court, inevitably many years later, to investigate whether a claimant, who as here, may be unsophisticated and not have kept records, to prove what he would have done many years earlier. In cases of admitted or proven negligence, on the part of solicitors or other professionals, that should not be the correct approach. Nor, in my view, do the authorities support it.

…

38.

…The reality was that the judge, in his analysis of the facts, approached the determination of this question on the basis of what he found Mr Perry was able to do in 2015. That was not the right question. The right questions were:

i)

First, whether, as at the date of settlement of his claim, in 1999, Mr Perry, if properly advised, would have acted differently and made a claim for a services award. That question did not involve an enquiry as to whether such a claim would have succeeded. In my judgment the answer was obvious, Mr Perry would, and could, clearly have made a claim.

ii)

Second, if Mr Perry had in fact made a services claim, what would have been its chances of success? That claim for loss of a chance did not fall to be determined on the balance of probabilities. That was an evaluation exercise to be carried out by the judge.

39.

In my judgment, although the judge approached (and answered) the second question correctly, his approach and answer to the first question was wrong. In reality he investigated and purported to answer (on the balance of probabilities) the question whether Mr Perry could have made a successful services claim if the DTI had challenged it under the Scheme. He did so without regard to the critical feature as to what was the appropriate date for such an analysis. For that reason alone, I would allow this appeal.”

The Respondent submitted that Perry v Raleys was wrongly decided. In reliance on the judgment of Simon Brown LJ in Mount v Barker Austin [1998] PNLR 493, Mr Pooles says the defendant lawyer is entitled to challenge his or her former client’s case. In considering the fourth principle enunciated by Simon Brown LJ (“if and when the Court decides that the plaintiff’s chances in the original action were more than merely negligible it will then have to evaluate them”: Mount page 511, B/C), the Respondent submits this does not mean that the loss of a chance approach should always be adopted in such cases. Rather, if “some or all of the issues of loss can still be fairly tried” they should be tried. For this proposition the Respondents rely on Harrison v Bloom Camillin [2001] PNLR 195, see Neuberger J at paragraphs 101 to 106, approved by Simon Brown LJ in Sharif v Garrett [2001] EWCA Civ 1269, at paragraphs 43 to 44. The Respondents similarly rely on the approach of Jack J in Hickman v Blake Lapthorn [2006] PNLR 371, where the judge decided part of the case on loss of a chance, but decided contributory negligence on the basis of the admitted fact that the claimant had not worn a seat belt (see paragraphs 2 and 61).

The Respondent also relied on Somatra Ltd v Sinclair Roche & Temperley [2002] EWHC 1627, where the decision rested on a factual conclusion that the claimant would have in fact settled the claim for 75% of full value, even though the judge found that if the matter had gone to trial, the claimant would have succeeded in obtaining the full sum claimed. For myself, I found this a difficult submission for the Respondent, since the Court concluded that the loss of the chance, as it would have been valued by the litigant – in other words the probable outcome if the case had proceeded without legal negligence – was the proper basis of the award, even though the judge felt able to assess the outcome of a trial at 100%.

The Respondent then cited three decisions of this court: Charles v Hugh James Jones & Jenkins [2001] 1 WLR 1278, Dudarec v Andrews [2006] 1 WLR 3002 and Whitehead v Searle op. cit. In each of those cases, after-coming evidence was taken into account by the Court in evaluating the value of a lost claim. In Charles, the judge decided he was able fairly to resolve all the disputed issues in the original litigation without recourse to an evaluation of the loss of chance. The Court of Appeal approved this approach “in appropriate circumstances”. The relevant appropriate circumstances in that case were that the after-coming relevant medical evidence would have been revealed by the notional trial date, had there been proper conduct of the case: see the judgment of Swinton Thomas LJ at p.1291H to 1292B.

In the course of his judgment, Swinton Thomas LJ reviewed the authority then available, which he described as “little .. in this country” (p. 1288G) and went on to consider in some depth the Australian case of Johnson v Perez (1988) 166 CLR 351. The starting point, he reaffirmed, was to consider what would have been the position at the notional trial date. He went on to observe:

“For my part, I am in complete agreement with the views there expressed on this evidential question. It is right, as Mr Jackson submits, that the judge's task is to assess damages that the claimant would have recovered at the notional trial date. However, in appropriate circumstances, in my view, a judge may well be assisted in coming to a view as to the damages which would have been awarded at the notional trial date by knowledge of what had in fact occurred. Although a judge at the notional trial date is making an assessment, it is to be hoped that it is an accurate assessment and evidential matters which would assist in that task are, to my mind, capable of being received in evidence. So far as the evidence of Dr Roberts is concerned, the point does not arise in an acute form in this case for reasons which I will explain in a moment [emphasis added]. I would be prepared to accept that if some entirely new condition which can be attributed to the accident, manifests itself for the first time after the notional trial date it may be that it has to be ignored. I would wish to reserve any final opinion in relation to that. However, in contrast, if a condition has manifested itself prior to the notional trial but the prognosis was somewhat uncertain at that trial date, in my judgment the judge is entitled and, indeed, should, take into account what has in fact occurred. As Mr Marshall, on behalf of the respondent, points out in his skeleton argument it would be absurd, and in my judgment wrong, if, for example, at the notional trial date the medical evidence indicated that there was a strong probability that the claimant would in future suffer some adverse medical consequence as a result of the injuries sustained in the accident, but it was shown as at the date of the actual hearing that there was no such risk, that the claimant should recover damages in respect of it. Similarly, if there was evidence as at the notional trial date that the probability was that the claimant would never work again, but at the actual trial date he or she had obtained remunerative employment, it would be wrong not to take that fact into account. Equally, if the evidence was less certain as to the claimant's prospects of obtaining employment at the notional trial date, but it was quite certain as at the actual trial date that she would be unable to go back to work again, that is a fact which can properly be considered by the judge. In my judgment, it would be absurd and wrong in principle to disregard such evidence.”

These remarks of Swinton Thomas LJ are of great interest, but it should be noted that they are obiter dicta. On the facts of that case, the relevant after-coming evidence would have been in play by the notional trial date.

In Dudarec, a personal injury action was struck out for want of prosecution, and there was no issue concerning negligence. There was an issue of failure to mitigate loss in the personal injury claim. The Claimant was thought to have a severe false aneurysm of the left carotid artery, attributable to the accident. He was advised to undergo corrective surgery, but declined to do so because of the risks of surgery. After the notional trial date (in 1996), further medical investigation revealed that the condition was much less serious than had been thought, since the original assessment was in error. It could no longer be said there was any failure to mitigate. The trial judge declined to take that fresh evidence into account, because it would not have been known at the notional trial date. Disregarding that fresh evidence, he concluded that the defendant’s insurers would probably not have established a failure to mitigate (paragraph 20), but the matter was finely balanced, and it was appropriate to discount the award by 40% to reflect the risk.

The judgment was successfully appealed. Waller LJ observed that “neither counsel found it easy to submit precisely what the judge had decided”: paragraph 25. However, the decision was then made easier because:

“29.

The answer to that question is in my view rendered a little easier by the fact that it was also the opinion of the joint experts instructed for the case against the solicitors that, if they had been instructed in relation to the trial in 1996, the scan which they had performed in 2004 would have been performed in 1996 and thus the information before the trial judge would have been that the Appellant did not suffer from the debilitating condition.”

It was this factor which decided the matter for Waller LJ (see paragraph 48).

Waller LJ went on to consider Charles v Hugh James Jones & Jenkins and the judgments of Swinton Thomas LJ and Sir Richard Scott V-C in that case, both reserving their position on whether events subsequent to the notional trial date should be taken into account. The judgment then continues as follows:

“33.

Those judgments are certainly authority for the proposition that if the further evidence which becomes available should, if the solicitors had not been negligent, have been available at the trial to assist the Claimant's case, it can be taken into account [emphasis added] to the advantage of the Claimant. Swinton Thomas LJ was also clearly of the view (although that view was obiter) that if the medical evidence at the original trial date would only have indicated a strong possibility as to something, and by the date of the negligence action the result was known, the known result should prevail. He was also of that view if the result was to limit the Claimant's damages on the basis that the Claimant in that way would recover what he had actually lost as opposed to obtaining a windfall. This is a view with which Robert Walker LJ seemed to agree, but it is less clear whether Sir Richard Scott VC did.

34.

We were also referred in this context to Campbell (or Pearson) v Imray [2004] PNLR 1 where Lord Emslie in the Court of Session expressed strong disagreement with views of Swinton Thomas LJ, stating that it was not legitimate to take into account events occurring after the date of the notional trial.”

In the end, Waller LJ concluded that, given that the relevant evidence would have been available to the trial judge at the notional trial date, then:

“49.

Once that evidence has been introduced to the benefit of the Claimant as in assessing the likelihood of what a notional judge would be likely to have done, it had to be, it seems to me that it ought to be evidence for all purposes. The Defendant must also be entitled to rely on it if it assists in reaching a more accurate result as to what the Appellant has in fact lost.

50.

Even if the Appellant had not relied himself on the evidence it seems to me it ought to be admissible on the basis that it is better not to speculate or hazard guesses where hindsight can lead to a more accurate assessment of what a Claimant has lost.”

In his judgment concurring in the outcome in Dudarec, Sedley LJ began by stating that “in the ordinary case” the judge in a negligence action should “simply decide on a balance of probability how much would have been awarded at trial had the solicitor done their job and … discount … for the risk, if any, that liability would not have been established” (paragraph 54). It was “not in general a permissible approach” although perhaps sometimes “unavoidable” to discount part of recoverable loss for the possibility that the trial judge would have found it irrecoverable (paragraph 54).

Sedley LJ rejected the approach of Lord Emslie in Campbell v Imray quoted in Charles, preferring the approach of Swinton Thomas LJ. In an important passage, Sedley LJ continued as follows:

“57.

Mr Monty, though disposed to argue the contrary, accepted that his insurance clients would not be too happy if they were required to pay a lifetime's lost earnings to the estate of a Claimant who had died of unrelated causes a year after the notional trial date. There is, however, a distinction of principle between facts that were discoverable but unknown at the notional trial date and facts which at that stage were both unknown and unknowable. Facts which were unknowable may have to be ignored [emphasis added]; but like the court which reserved the status of this class of evidence in Charles, we have here evidence which, though unknown in 1995 and 1996, was knowable and – despite Mr Marcuson's failure to obtain a duplex scan in 1995 – ought by the date of the notional trial to have been known. There is no difficulty in this situation in treating it as part of the data which would have been available to a trial judge in 1996.”

The third judgment in Dudarec was given by Smith LJ. She stated:

“64.

If the trial judge is presented with important new evidence that would or might not have been available to the judge at the notional trial, then I would respectfully agree with the views expressed in Charles, namely that, unless the evidence relates to some entirely new matter which could not possibly have been known about at the date of the notional trial [emphasis added], the facts as they have since turned out should be taken into account by the trial judge. As Swinton Thomas LJ said, it would be absurd and wrong in principle to disregard such evidence. In Charles, the court reserved its position in respect of evidence of entirely new matters which could not possibly have been discovered at the time of the notional trial. We have not had to consider that problem as it does not arise in this case. However, I suspect that, if the problem is considered on a case by case basis, the answer will be clear enough. In the example given by Sedley LJ, the fact that the Claimant died of unrelated causes between the dates of the notional and actual trial must be taken into account because, if it were not, the Claimant's estate would recover an unjustified windfall. If the Claimant won the lottery after the notional trial date and would have given up work even if fully fit, it would be unjust to ignore that and allow him to recover from his solicitors the loss of future earnings he would have recovered from the tortfeasor.”

There is no doubt that existing authority on this topic has its difficulties. It is for that reason I have quoted fairly extensively from the case law in this review. In my view, it is helpful to begin with first principles. As with all other claimants in tort, those who have suffered losses from professional negligence are entitled, so far as possible, to be put back in the position they would have been in, absent the negligence. The principle of full compensation, encapsulated in the Latin phrase restitutio in integrum, applies just as much to professional negligence cases as to others. Therefore the Court’s function, subject to specific considerations to which I will come, is to establish what loss and damage was caused. That is a question of causation: what losses resulted from the negligence?

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.

The principles referred to above, set down by Simon Brown LJ in Mount v Barker Austin (A Firm) [1988] PNLR 493, at pages 510D to 511C, are as follows:

“1.

The legal burden lies on the plaintiff to prove that in losing the opportunity to pursue his claim (or defence to counter-claim) he has lost something of value i.e. that his claim (or defence) had a real and substantial rather than merely a negligible prospect of success. (I say `negligible' rather than `speculative' - the word used in a somewhat different context in Allied Maples Group Limited v Simmons & Simmons [1995] 1 WLR 1602 - lest `speculative' may be thought to include considerations of uncertainty of outcome, considerations which in my judgment ought not to weigh against the plaintiff in the present context, that of struck-out litigation.)

2.

The evidential burden lies on the defendants to show that despite their having acted for the plaintiff in the litigation and charged for their services, that litigation was of no value to their client, so that he lost nothing by their negligence in causing it to be struck out. Plainly the burden is heavier in a case where the solicitors have failed to advise their client of the hopelessness of his position and heavier still where, as here, two firms of solicitors successively have failed to do so. If, of course, the solicitors have advised their client with regard to the merits of his claim (or defence) such advice is likely to be highly relevant.

3.

If and insofar as the court may now have greater difficulty in discerning the strength of the plaintiff's original claim (or defence) than it would have had at the time of the original action, such difficulty should not count against him, but rather against his negligent solicitors. It is quite likely that the delay will have caused such difficulty and quite possible, indeed, that that is why the original action was struck out in the first place. That, however, is not inevitable: it will not be the case in particular (a) where the original claim (or defence) turned on questions of law or the interpretation of documents, or (b) where the only possible prejudice from the delay can have been to the other side's case.

4.

If and when the court decides that the plaintiff's chances in the original action were more than merely negligible it will then have to evaluate them. That requires the court to make a realistic assessment of what would have been the plaintiff's prospects of success had the original litigation been fought out. Generally speaking one would expect the court to tend towards a generous assessment given that it was the defendants' negligence which lost the plaintiff the opportunity of succeeding in full or fuller measure. To my mind it is rather at this stage than the earlier stage that the principle established in Armory v Delamirie (1722) 1 Stra. 505 comes into play.”

Those principles have been quoted with approval in many cases since, see for example in Sharif v Garrett & Co [2007] 1 WLR 3118 at paragraphs 38 to 40. This approach is based on the judgments in Kitchen v RAF Association [1958] 1 WLR 563 and is consistent with Hanif v Middleweeks [2000] LLR 920.

Although Simon Brown LJ was explicitly considering cases struck out for want of prosecution, I can see no sensible distinction to be made between a case struck out for negligent delay and a case abandoned due to negligent advice. In each case the essence is that a claim was not pursued due to negligence.

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?

It is a perfectly permissible approach to an assessment of the value of a claim to consider the prospects and amount of settlement: see Somatra v Sinclair, Roche and Temperley, Hickman v Blake Lapthorn and Hanif v Middleweeks.

Save in exceptional cases, these principles apply even where relevant after-coming evidence arises. It appears to me there is no difficulty with the decisions in Charles v Hugh James Jones and Jenkins, or Dudarec. In each of those cases the relevant after-coming evidence would and should have been available at the notional trial date, had the litigation been competently conducted. Despite some of the obiter dicta quoted above, those cases are no authority for the proposition that all available after-coming evidence falls to be assessed in every case, or for a suggestion that on any professional negligence claim the Court simply approaches the strength of the case as at the date of the professional negligence trial, asking the Claimant what he can now prove, on the basis of expert evidence which would not have been in existence had the original matter proceeded with competent representation. It appears to me that this was the central reasoning behind the decision of this Court in Perry v Raleys.

Those considerations have particular force in the context of such a Scheme as this. The purpose of the Scheme was to provide a rough-and-ready resolution of a very large number of standardised small claims at low cost. That was a proportionate approach. It appears to me particularly inappropriate to lose sight of what would have been the outcome of such a Scheme, by reference to after-coming evidence which would not have been brought into being at the time.

As a number of the authorities have made clear, public policy sets some limits to the principle of restitutio in integrum. If it emerges that the original claim (or part of it) was based on fraud, then of course the court will not lend itself to fraud. That is clear.

A more difficult problem arises from the rare case such as Whitehead v Searle, where a key element of an award (such as the cost of care for many years) would have been based on a prediction (that the carer would live until the child was an adult) which has unexpectedly been proved wrong. This is the same problem as the lottery win contemplated by Smith LJ in Dudarec. It appears to me likely that it was both the certainty and the significance or scale of the impact of the death in that case, that led to the conclusion expressed by Laws LJ in his judgment.

I accept that there is no established threshold over which a party must step before such an after-coming event, which could not and would not have been known, should alter the outcome. However, if this is a matter essentially of public policy, as the reference by Laws LJ to Attorney General v Blake makes clear, so that the Court is forced to recognise that the ordinary principles “would not do justice between the parties”, then in my view there must be a requirement for a significant or serious scale to the consequences of the supervening event, before it should be permitted to establish an exception to the normal principle. Unless there is some such threshold, there will be a continuing pressure to admit fresh evidence which would not have been available at the original notional trial, on all aspects of such cases, dependent on the energy and resources of the parties to the professional negligence action and their insurers. In practice that will undermine the rule of restitutio in integrum.

In this case, no fraud was proved. The after-coming evidence would not have been available at the notional date of settlement of the claim under the scheme. The evidence was not categorical for the reasons I have already indicated: was the voice file or audio file certainly that of the deceased? Was there a real possibility that Mr Watkins, years after the event and in old age, when he rarely went out in the cold, was underplaying his symptoms when he spoke to Mr Tennant, as opposed to overplaying them originally? What would the deceased have said? What was the significance of Mr Tennant’s concession in paragraph 3 of his letter that the grading of 3Sn was justified by the technical testing?

These questions were all apposite when considering the prospects of the claim under the Scheme. But in my view neither the certainty nor the scale of this after-coming evidence could possibly bring this case into the exceptional category where evidence which would never have been available at the original claim should have diverted the Court from assessing the value of the original claim. Without the fresh evidence from Mr Tennant, there was no prospect of the outcome reached. Even with the fresh evidence I do not see that the matter was “clear beyond doubt” as the Recorder put it, or “overwhelmingly clear” as the matter was expressed by Gloster LJ in Perry v Raleys. In my view the principle of restitutio in integrum should apply. The Court should have decided what were the prospects of the claim, as it would have been progressed, assessed the value of the lost claim, and made an award accordingly.

For those reasons, I would quash the decision below, and remit the case for rehearing.

I agree

I also agree.  I would only add that there seems to be an analogy, albeit not a perfect one, between this kind of case and that where a party seeks to overturn a damages award on appeal on the basis of an unexpected event post-trial event which has undermined the basis of the first instance assessment – the paradigm being the case where a claimant to whom an award has been made on the basis of a long life expectancy has unexpectedly died.  The authorities are reviewed at paras. 40/046-054 of McGregor on Damages (20^th ed).  In Mulholland v Mitchell [1971] AC 666 Lord Wilberforce said, at pp. 679-680: 

“I do not think that, in the end, much more can usefully be said than … that the matter is one of discretion and degree …. Negatively, fresh evidence ought not to be admitted when it bears upon matters falling within the field or area of uncertainty, in which the trial judge's estimate has previously been made. Positively, it may be admitted if some basic assumptions, common to both sides, have clearly been falsified by subsequent events, particularly if this has happened by the act of the defendant. Positively, too, it may be expected that courts will allow fresh evidence when to refuse it would affront common sense, or a sense of justice. All these are only non-exhaustive indications; the application of them, and their like, must be left to the Court of Appeal. The exceptional character of cases in which fresh evidence is allowed is fully recognised by that court.”

That seems to me to be broadly in line with the approach which Irwin LJ has traced in the authorities relating to after-coming evidence in cases of the present kind.