Waraich & Anor v Ansari Solicitors (A firm)

By a claim issued on 25 October 2017, the Claimants, who are a married couple, seek damages for the alleged negligence of the Defendant, a firm of solicitors, in failing to advise them to issue a claim against another firm of solicitors, Khan’s, within the limitation period. The claim against Khan’s was itself based on the allegation that they negligently handled an application for leave to remain on behalf of the First Claimant, as a result of which his work permit expired. This is alleged to have caused delay in he and his family obtaining indefinite leave to remain in the United Kingdom and in turn to have caused them to lose the chance of getting British Nationality by the time of the trial.

The First and Second Claimant claim losses totalling just in excess of £820,000 which can be broken down into 6 categories:

Breach of duty is admitted in the claim against the Defendant on the basis of the breach of an admitted retainer and common law duty of care in respect of the First Claimant and the breach of a common law duty of care in respect of the Second Defendant. However, the Defendant denies that the Claimants have suffered any loss as result of the admitted breach of duty, asserting that they have not lost the real or substantial chance of a successful claim since the original claim against Khan’s was doomed to failure. Alternatively it asserts that the valuation of the claim by the Claimants is exaggerated.

Given the admitted duty of care owed to both Claimants, it was not necessary during the trial to address the alternative argument that the Second Claimant retained the Defendant. There is no express retainer and on the available evidence, I could find no material from which such a retainer could be implied. Therefore, in so far as it necessary to resolve the issue, I find that the Defendant’s duty to the Second Claimant is limited to that in tort.

I am obliged to counsel for the Claimant, Mr Mahmood, for the preparation of a chronology from which I borrow here:

Each of the Claimants provided seven witness statements. They each gave oral evidence. As identified at paragraph 17 below, the Defendant took a preliminary issue about the language in which their statements had been prepared. This led to a delay of one day in starting the trial which had the knock on effect of causing the trial to finish one day late.

On behalf of the Defendant, Mr Ansari prepared two witness statements and gave evidence.

This claim is for the loss of a chance of success in an action against Khan’s, an action which itself involved the loss of a chance of a successful immigration application. The correct approach to a claim of this kind was considered by the Court of Appeal in Kitchen v Royal Air Force Association [1958] 1 WLR 563, in which Lord Evershed MR (with whom the other members of the Court agreed) said:

“If, in this kind of action, it is plain that an action could have been brought, and if it had been brought that it must have succeeded, of course the answer is easy. The damaged Plaintiff then would recover the full amount of the damages lost by the failure to bring the action originally. On the other hand, if it be made clear that the plaintiff never had a cause of action, that there was no case which the Plaintiff could reasonably ever have formulated then it is equally plain that the answer is that she can get nothing save nominal damages for the solicitors’ negligence…The present case, however, falls into neither one nor the other of the categories which I have mentioned. there may be cases where it would quite impossible to try ‘the action within the action’… In my judgment, assuming that the plaintiff has established negligence, what the court has to do in such a case as the present is to determine what the Plaintiff has lost by negligence. The question is, has the plaintiff lost some right of value, some chose in action of reality and substance? In such a case it may be that its value is not easy to determine, but it is the duty of the court to determine the value as best it can.”

In assessing a Claimant’s potential loss, a distinction must be drawn between determining what the Claimant would have done if properly advised (to be decided on the balance of probabilities) and what is dependent on the acts of others (to be determined as a loss of a chance). As Lord Briggs said in Perry v Raleys [2019] UKSC 5:

“20.

For present purposes the courts have developed a clear and commonsense dividing line between those matters which the client must prove, and those which may better be assessed upon the basis of the evaluation of a lost chance. To the extent (if at all) that the question whether the client would have been better off depends upon what the client would have done upon receipt of competent advice, this must be proved by the claimant upon the balance of probabilities. To the extent that the supposed beneficial outcome depends upon what others would have done, this depends upon a loss of chance evaluation.

21.

This sensible, fair and practicable dividing line was laid down by the Court of Appeal in Allied Maples Group Ltd v Simmons & Simmons [1995] 1 WLR 1602 …

22.

The Allied Maples case was about the loss, due to negligence, of the opportunity to achieve a more favourable outcome in a negotiated transaction, rather than about the loss of an opportunity to institute a legal claim. But there is no sensible basis in principle for distinguishing between the two, and none was suggested in argument. In both cases the taking of some positive step by the client, once in receipt of competent advice, is an essential (although not necessarily sufficient) element in the chain of causation. In both cases the client will be best placed to assist the court with the question whether he would have taken the requisite initiating steps. He will not by the defendant's breach of duty be unfairly inhibited in proving at a trial against his advisor that he would have done so, save perhaps where there is an unusual combination of passage of time and scarcity of other probative material, beyond his own unaided recollection.

23.

Two important consequences flow from the application of this balance of probabilities test to the question what the client would have done, in receipt of competent advice. The first is that it gives rise to an all or nothing outcome, in the usual way. If he proves upon the narrowest balance that he would have brought the relevant claim within time, the client suffers no discount in the value of the claim by reason of the substantial possibility that he might not have done so: see Stuart-Smith LJ in the Allied Maples case [1995] 1 WLR 1602 , 1610GH. By the same token, if he fails, however narrowly, to prove that he would have taken the requisite initiating action, the client gets nothing on account of the less than 50% chance that he might have done so.

24.

The second consequence flows directly from the first. Since success or failure in proving on the balance of probabilities that he would have taken the necessary initiating step is of such fundamental importance to the client's claim against his advisor, there is no reason in principle or in justice why either party to the negligence proceedings should be deprived of the full benefit of an adversarial trial of that issue. If it can be fairly tried (which this principle assumes) then it must be properly tried. And if (as in this case) the answer to the question whether the client would, properly advised, have taken the requisite initiating step may be illuminated by reference to facts which, if disputed, would have fallen to be investigated in the underlying claim, this cannot of itself be a good reason not to subject them to the forensic rigour of a trial. As will appear, this has an important bearing on the extent of the general rule that, for the purpose of evaluating the loss of a chance, the court does not undertake a trial within a trial.”

In determining the loss of a chance, the Court has to consider whether that chance was real or substantial. Simon Brown LJ as he then was put it thus in Mount v Baker Austin [1998] PNLR 493:

“In order to recover for the loss of that kind the court must be satisfied that the plaintiff had at least a "real" or "substantial" chance that he would have succeeded in the primary action, not merely a speculative one: see Allied Maples Group v Simmons & Simmons [1995] 1 W.L.R. 1602 per Stuart-Smith L.J. at 1614. If his prospects of success fall short of that, the court will ascribe no value to them, but provided the court can see that there were real prospects of success it will evaluate them notwithstanding the difficulties that may involve. The need to evaluate the prospects of success in that way usually arises because of uncertainty as to the final shape of the evidence which would have been before the court trying the primary action. In some cases, however, the outcome of the primary action is not in doubt, for example, if it can be seen that the claim is bad in law and could never have succeeded. In such a case, of course, there never were any prospects of success at all.”

The Claimants contend that the Defendant was negligent in failing to advise that a claim against Khan’s be issued before expiry of the limitation period. But for that negligence, the Claimants would have had a valuable claim against Khan’s for damages for negligent advice in their immigration application. The First Claimant should not have been advised to make an application for indefinite leave to remain, but rather should have sought an extension of his work permit and an associated extension of leave to remain. Had such an application been made, it would probably have been granted and the Claimants would have retained their right to be in the country. This would have avoided them being in the country for a period as overstayers and their consequent financial losses.

The Defendant admits its breach of duty in failing properly to advise the Claimants on the issue of limitation in their prospective claim against Khan’s. However, it either denies the claim or puts the Claimants to proof on every aspect of the claim that they have thereby suffered the loss of a real or substantial chance of a claim against Khan’s.

In determining whether the Claimants have suffered any loss as a result of that breach of duty, two issues arise:

If those two questions are answered in the affirmative, the following issues need to be determined:

The determination of issues 2, 3 and 4 will be greatly influenced by the determination of the following sub-issues:

In considering these issues, six important factual questions arise as dealt with below:

At the beginning of the trial, the Defendant raised an issue as to the statements of truth on the Claimants’ statements of case and witness statements. Each statement of case had been signed by both Claimants and each Claimant had signed their witness statements.

However, shortly before the trial, the Claimants served 14 statements from an interpreter, Mr Syed Haider Ali Shah, stating that he had translated into Urdu (Footnote: ²) each of the 7 statements that each Claimant had signed, stating in each case that the Claimant “confirmed that the contents are true and correct and she was made aware of the consequences of making false statements in court.”

The statements from Mr Shah raised questions as to the compliance by the Claimants with Rules and Practice Directions:

In so far as the putative non-compliance related to the statements of case, this did not of itself render it ineffective, though gave rise to the possibility of it being struck out (see CPR22.2(1)); in so far as it related to witness statements, it gave rise to the possibility that the Claimants had not served witness statements in compliance with the rules and that CPR32.10 debarred them from relying on the evidence without relief from sanction.

To deal with this issue, the Claimants sought an adjournment overnight on the first day of trial with a view to making an application for relief from sanction and made such an application, relying on two witness statements from their solicitor, Mr Khalid Mahmood (Footnote: ³), both dated 13 March 2019. The application sought relief from sanction for failing to comply with PD22. In his third statement, Mr Mahmood explains at paragraph 6 that he had translated the statements of case into Punjabi for the Claimants and explained the contents of the documents. He followed the same process with the witness statements and list of documents.

As to the need for the statements from Mr Shah, Mr Mahmood stated that, “during the trial preparation, it transpired that the Claimants may not fully appreciate and comprehend the contents of the documents … in order to make sure that that Claimants fully appreciate all of the documents listed above, I requested Mr Syed Haider Ali Shah to translate their witness statements to both Claimants.” Mr Mahmood identified that Mr Shah is both a qualified interpreter and a practising solicitor (therefore able to sign a certificate in accordance with PD22).

For reasons given at the time, I indicated that I was not satisfied that relief from sanction was required, since the extent of the Claimants’ understanding of English was unclear and therefore I could not conclude whether the statements could properly be said to be in their own words so far as practicable and/or whether they could read the statements. I gave relief from sanction in so far as it is might have been required and I declined to strike out any statement of case. However I expressed concern that there may be an underlying issue as to reliance on the statements that would be more apparent after the Claimants had given evidence.

In oral evidence, both Claimants were asked about parts of their statements and said that they could understand much of their statements but that there were some words that they could not understand. For example, the First Claimant said that he did not know what

“appreciate” means (Footnote: ⁴). The Second Claimant identified “instructed”, “appropriate” and “proceedings” as words that she did not understand.

This trial deals with events that happened a considerable time ago. I was conscious that, in so far as matters were recorded in contemporaneous documents, there was a risk that witnesses would misremember matters. As Leggatt J (as he then was) said in Gestmin v Credit Suisse [2013] EWHC 3560 at paragraphs 16 to 20 cited by him and expanded upon in paragraphs 66 to 70 of his judgment in Blue v Ashley [2017] EWHC 1928, “the best approach for a judge to adopt in the trial of a commercial case is to place little if any reliance on witnesses' recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts.

In the event, the First Claimant’s oral evidence gave rise to serious concerns as to his reliability, most particularly on the issue of his loss of earnings. It was his case that he came to the United Kingdom and worked initially for the Mughli Takeaway and latterly for the New Mughli Takeaway as a Balti Chef. That was a business owned by Mr Mohammed Chaudhury (Footnote: ⁵). Mr Waraich asserted that, following the failure to renew his

The Claimants relied on a schedule which originally claimed loss of earnings over a four year period. That schedule was amended to reduce the claim to a period of 2½ years and in the earlier part of his cross examination, Mr Waraich stood by this period. But when pushed on the dates, Mr Waraich asserted that the period of loss of earnings had begun in around February 2007, shortly after instructing Amjad Malik’s Solicitors (Footnote: ⁶). He accepted that he had resumed working when he got a work visa in January 2009. Accordingly he accepted that the true period of loss of earnings cannot have been more than 23 months. When asked to explain why he had originally signed a schedule stating a period of loss of earnings of 4 years and then signed the amended schedule with the lesser period of 2½ years, he repeatedly asserted that he had signed the document because his solicitor, Mr Ansari, had told him to. In so far as there was any inaccuracy, he attributed that to the fault of Mr Ansari in telling him to sign the document.

However there are numerous documents either signed by Mr Waraich or written in support of applications on his behalf when it is asserted that either he was working in this lesser period of 23 months or that there was no interruption at all in his work:

Further, a letter dated 15 November 2011 at 5/1250 and purportedly written pursuant to the Pre-Action Protocol for Professional Negligence cases, sets out Mr Waraich’s complaint about the conduct of Khan’s and asserts a variety of losses. But no reference is made either to any period of interruption in work as a chef or any consequential loss of earnings. It should be noted that Mr Ansari states at paragraph 27 of his statement of 22 January 2019 that he drafted this letter. I shall return to this issue below.

Mr Waraich was asked about the Further Leave to Remain form referred to at paragraph 28.c above that he had signed at 2/442 and in particular the assertion at 2/438 that he continued to work. He said that he had signed this document in blank and had trusted his solicitor, Mr Ansari, to complete the document. He blamed Mr Ansari for telling an untruth to the Home Office about whether he was working.

Mr Waraich similarly stated that he signed in blank:

Mr Waraich was asked on the second day of the trial about his application for leave to remain in 2014. He said that the form, which appears at 3/631ff and is signed by him at 3/655, had been prepared when he was using Thornhills Solicitors. He said that, when he signed the form, his daughter was with him. He had read through the form himself and afterwards his daughter read and translated it for him. But when asked about the same document on the fourth day, he said that this too was a document that he had signed in blank.

Given the obvious importance of these documents to the case, it is surprising that the assertion that Mr Waraich had signed documents in blank does not appear anywhere in his witness statements.

When asked about the document at 2/414, which is apparently signed by Mr Mohammed Afzal (Footnote: ⁷) in his role as owner of the New Mughli Takeaway, Mr Waraich did not dispute the genuineness of the signature, even though on his case it was wrong to state that, at the date of the signature, 29 May 2007, he was working at the New Mughli Takeaway. But in respect of the document at 2/453, he asserted that the signature was not that of Mr Chaudhury, describing it as “counterfeit.” He said that document was wrong to say that he was “currently” employed at the New Mughli Takeaway.

Of the letter from the New Mughli takeaway dated 28 January 2010 at 2/468, he again said that this was not Mr Chaudhury’s signature and that “I was not working there at the time.” He further stated that a payslip at 2/458 was untrue in stating that he was working in August 2009 and in recording earnings of £7,000 to date (which seems to reflect basic pay of £1,400 for the 5 months of the tax year starting April 2009). But later in his evidence he stated that he had in fact started working again at the New Mughli Takeaway when he got a work permit in January 2009. The payslip would of course be consistent with that case.

It is certainly correct that the signatures on the various documents apparently signed on behalf of the New Mughli Takeaway do not all look the same. But, as the Defendant points out, the only obvious motive to assert that Mr Waraich was working at the Takeaway when he was not was to prove continuity of employment for an Indefinite Leave to Remain application. This raises two points:

Making due allowance for the fact that Mr Waraich was speaking through an interpreter and was dealing with matters some time back, it was nevertheless apparent that his evidence on the issue of his loss of earnings was hopelessly contradictory. It appeared again and again that Mr Waraich was saying the first thing that came into his mind to deal with any document that was put to him. He frequently later changed his account when other documents were put.

When it was put to Mr Waraich by counsel for the Defendant that his loss of earnings claim was entirely made up, he replied that Mr Ansari had made the claim for loss of earnings and that “If you say it is false, then he made it up…The claim was drafted or made by him and I am just taking it forward.” That answer gave the impression that Mr Waraich was not actually saying he had a period of unemployment but was merely repeating Mr Ansari’s claim that he had not. In an answer to a further question though he maintained that he had had a period of unemployment.

All in all, I have grave concerns about the reliability and the honesty of the First Claimant’s evidence on this issue. I gained the impression that he repeatedly answered questions in the way that he thought best suited his case. His general approach to giving an account of himself, including his apparent willingness to sign blank documents and his assertion that he signs what he is advised to without regard for its accuracy cause very great concern.

Further, his evidence gives rise to concern about whether the disclosure process has ever been properly carried out.

When pushed on the source of the documents that had been provided to various solicitors at various time, Mr Waraich made the point that he was dealing with matters that had taken place some time ago. He accepted that he could not say which documents he had supplied to which solicitors and when. The absence of many documents relevant to the issues in the case clearly creates a difficulty for the Court in determining both what did happen and what would have happened in the hypothetical situation that needs to be considered to determine the Claimants’ loss of a chance claim.

The Claimants seek to argue that this position has been brought about by the fault of the Defendant in having lost documents. It is clear that the First Claimant has provided various documents to various solicitors at various times. However, in the light his unsatisfactory evidence on this as well as other issues (as identified above and further explored at paragraphs 71 to 75 below) and Ansari’s denial that it has lost relevant documents, there is no safe basis for concluding that it, rather than the Claimants themselves or other solicitors, are responsible for the absence of relevant documents. Indeed, the overwhelming inference is that the Claimants themselves are at least in part responsible because of their failure to pursue disclosure with their banks and/or HMRC.

Overall, I found Mr Waraich to be a deeply unsatisfactory witness. His contradictions were many and blatant. His assertion that he had frequently signed documents in blank was difficult to accept, but if true demonstrated a willingness to put his name to statements regardless of their accuracy. In so far as his evidence is contradicted by other witnesses and/or does not coincide with common sense, I am very reluctant to accept what he says.

This assessment of Mr Waraich is not only relevant to factual findings in this case. It potentially bears on his loss of a chance case, in so far as any Immigration or Nationality application would have depended on his word being accepted. Mr Waraich is so poor a witness that any examination of what he was saying in such an application would, if scrutinised, have led to doubts about his truthfulness.

As a further criticism of Mr Waraich’s credibility, it might be suggested that his understanding of English is better than he was admitting, such that the use of an interpreter was unnecessary. This is not an unusual allegation in cases where witnesses have lived in the country for some time but wish to have the use of an interpreter in giving oral evidence. The Equal Treatment Bench Book counsels caution in concluding that, just because a person has lived in this country for some years, they do not need an interpreter. I consider that both of the Claimants were assisted in giving evidence by the presence of the interpreter and I do not at all hold their request for his presence against them.

It was clear from the evidence of Mrs Waraich that, whilst she dealt with day to day matters, she had relatively limited involvement in the finance of the business. Her husband had mainly dealt with the banks in particular. When pressed on issues, she repeatedly said that she could not remember matters and indeed she said that her memory was not good. She could not deal with the detail of the applications nor of her financial affairs. She provided very little assistance to resolving the main issues in the case.

Mr Ansari gave evidence for the Defendant. When he was first involved on behalf of Mr Waraich, he was considering the threat to the Claimants’ family of removal from the country because they were overstayers.

He understood from Mr Waraich that Khan’s had wrongly applied for leave to remain based on Mr Waraich working in the country for four years, in ignorance of the change in rules. He considered that an application should have been made for an extension of the work permit.

Latterly, when he acted in the potential professional negligence claim against Khan’s, Mr Ansari said that he considered that the claim had very good prospects of success. Indeed, he agreed to take it on the basis of a conditional fee agreement. However, he never advised in writing on liability or quantum.

In respect of the allegation that documents had gone missing whilst in control of his firm, he denied having had the full file from Khan’s stating that if he had done so he would not have needed to ask the solicitors acting for Khan’s to provide the file. He was however unable to explain precisely which documents had been available to his firm. In so far as his firm had referred to documents within their possession, these would have been handed on to other solicitors as requested by Mr Waraich.

Mr Ansari accepted that the First Claimant was not an expert in Immigration Law and that he had been instructed to provide on immigration matters, not simply to carry out Mr Waraich’s instructions.

I have referred at paragraph 28 above to various communications from the Defendant in which either it is asserted that the First Claimant worked continuously as a chef or which fail to refer to any period of interruption in his employment.

In a meeting on 25 October 2011, noted at 5/1240 (and involving Mr Waraich and Ms Rehman on behalf of the Defendant), there is no reference to a loss of earnings claim even though there is detailed reference to other losses. The letter of claim at 5/1260, dated 15 November 2011, shortly following that meeting, makes no reference to any loss of earnings claim on behalf of the First Claimant .

Yet Mr Ansari’s firm later advanced the claim on behalf of Mr Waraich for a period of loss of earnings. The claim is first referred to in a letter dated 11 July 2012 at 5/1282 and the schedule annexed to that letter at 5/1287 – that claim is in the same terms as the original version of the Schedule in this claim. The response of solicitors for Khan’s is noted on 21.7.12, when a person called Steven phoned Ansari’s and drew attention to the fact that there were no documents to support the valuation of the claim.

Mr Ansari accepted in evidence that he had told the First Claimant that he had a very good case and that the figure in the schedule was £1.4 million.

I have two distinct concerns about this aspect of the evidence.

The Claimants invite the court to draw the inference from this that in fact the Defendant must have had much more information before it when the claim was being formulated in 2012, otherwise the claim could not have been advanced as it was.

I find it surprising that so large a claim might be advanced by a solicitor in the position of Mr Ansari without Mr Waraich being clearly warned of the need for documentary evidence in support and of the highly speculative nature of the claim as formulated. It is particularly concerning that the case involves a contradiction between Mr Waraich’s working history as advanced by Ansari’s on his behalf in the immigration claim and the loss of earnings claim advanced by them in his claim against Khan’s.

However, the file note of 12 July 2012 is striking – had the documentary evidence in support of the claim been in existence at that time, it would surely have been disclosed to Khan’s. The lack of detailed response tends to indicate that Mr Ansari is correct to say that there was little documentary evidence in support of the figures being advanced. Further that attendance note indicates that it was Ms Rehman, an employee of the Defendant, rather than Mr Ansari himself who was formulating the loss of earnings claim on behalf of the First Claimant. That might suggest that the inconsistent case has arisen through oversight.

Mr Ansari was cross examined on the assertion that he had told Mr Waraich that an offer of £200,000 in settlement of the claim had been made on behalf of Khan’s. He denied this. He also denied the assertion that he had asked the First Claimant to sign the SET(O) form at 2/275 in blank.

Overall, I found Mr Ansari to be a reasonably convincing witness, notwithstanding my concern about the matters referred to in paragraph 58 above.

Mr Waraich asserted in his witness statement of 21 January 2019 at paragraph 9 that he had instructed Khan’s in July 2006. In cross examination he stated that it was during the first week of July 2006.

He was questioned on a letter from solicitors acting for Khan’s dated 4 June 2013 whilst the claim brought against them was current at 5/1323 which refers to a retainer letter dated 28 July 2006. He maintained that the instruction was about 6 weeks before his leave to remain was due to expire (which would have equated to early July) but accepted that in paragraph 3 of the Particulars of Claim he had stated the instruction to have been about one month before expiry of the leave to remain.

I consider Mr Waraich’s evidence that the instruction was in early July to be unconvincing. This level of precision as to the date was not given in the Particulars of

The First Claimant’s evidence is that he approached Khan’s on the basis of a recommendation. He asked them for advice on his immigration status and was told that, because he had four years’ continuous lawful residence in the United Kingdom, he was entitled to apply for indefinite leave to remain. He said in cross examination that he was not aware that Khan’s had made an application on Human Rights rather than work permit grounds.

The Defendant’s case is that, had Mr Waraich approached Khan’s and asked them to make a claim on work permit grounds, they would have done so. Rather it is contended, repeating what Khan’s had argued in their solicitors’ letter of 4 June 2013 at 5/1323, that

As I indicated during evidence and counsel’s submissions, I have considerable difficulty in accepting the Defendant’s case on this issue.

Against this, the Defendant raises two points:

As to the first of these points, it is common ground that this application was made shortly after the law on application for indefinite leave to remain changed (Footnote: ⁸) so that five rather than four years’ continuous residence as a work permit holder was required to make the application. It is plausible that a person making this application may have overlooked this change when advising the First Claimant. Indeed, one explanation for the oddity of the application and the fact that Mr Waraich may have misunderstood what was being sought is that the person drafting the application on his behalf had intended to make an application for Indefinite Leave to Remain based on 4 years’ relevant continuous residence but realised on completing the form that the requirement had changed to 5

As to the second, the mere fact that I find the First Claimant to be a highly unreliable witness does not mean that he was wrong on all matters. On this issue, I consider his explanation to be plausible and the alternative rather unlikely. I have no hesitation in concluding that that his instructions encompassed Khan’s advising him on the appropriate application to make.

The original immigration file from Khan’s has apparently become water damaged (see the letter at 5/1300) so that relevant original documents are not available. The loss of

Mr Waraich’s initial position in cross examination was that he had collected a copy of the file from Khan’s in 2007. He said that, to the best of his recollection, he had passed it on to Mr Ansari. But when pushed, he said he could not say that it was he who had passed the file on to Ansari’s, rather than someone else. When his attention was drawn to paragraph 41 of his witness statement of 21.1.19, he reverted to saying that it probably was he who had collected the file and passed it to Ansari’s. However, Mr Waraich’s attention was drawn to the fact that this passage deemed to relate to passing on a file in 2011. He then said that that he had collected the file twice, first in 2007 and then 2011.

Mr Waraich was asked about the note that he had signed at 6/1767, dated 7 February 2007, by which he confirmed collecting the “full file of papers.” He first stated that, having collected the file, he took it to Ansari’s. But it was then pointed out that this note pre-dated the involvement of Ansari’s. Indeed, the close coincidence of time of a letter of claim by Abbey’s dated 16.2.07 at 5/1223 suggests that the file may have been collected for their purposes. It is certainly inconsistent with the suggestion that the file went to Ansari’s in February 2007.

Further, in respect of the instruction of Ansari’s in 2011, Mr Waraich’s attention was drawn to a letter dated 13 July 2012 at 5/1300 where Ansari’s stated to solicitors acting for Khan’s that “Your client has not provided any file to our client.” In a letter dated 31

The Claimants’ case on this issue is hopelessly vague. There is no material from which I could safely conclude that Ansari’s are to blame for missing documentation.

I have set out at paragraphs 26 to 38 the evidence relating to the First Claimant’s employment with the New Mughli Takeaway and whether there was a gap in that employment in 2007 to 2009.

Given that analysis, I am not satisfied that the First Claimant could show that he has suffered any loss of earnings. Indeed, I conclude that the assertion that he has done so is made dishonestly.

The First Claimant accepted that his bankruptcy pre-dated the involvement of Khan’s in his immigration application and that it could not therefore be attributed to their alleged negligence. Further, he accepted that the bankruptcy would have continued to cause difficulty in getting a loan until he was discharged in 2009. The various businesses that he and his wife operated were family businesses.

The Second Claimant said in her evidence that the financial problems had begun “in 2006 after a short while of our becoming over-stayed and then we had to close the businesses because we could not – when they refused the overdraft facility and loan, then we were unable to stock up the business.”

It is the Claimants’ case that, but for their immigration status, they would have been able to borrow money. It is said (or at least suggested) that this would have staved off the Second Claimant’s bankruptcy. The evidence does not however come close to showing this. The First and Second Claimants were understandably closely connected in their operation of the businesses. For example, the Second Claimant said of their relationship with the accountant, “This was a family business and my husband would give me advice and do all the dealings.” The First Claimant’s bankruptcy pre-dated and was of course unrelated to the issue of their immigration status. It is clear that it started to have an effect on the Second Claimant – see for example the letter at 1/132 by which a supplier who had originally done business with the First Claimant and was now looking to recoup their indebtedness from the Second Claimant stated, “I have been dealing with your husband but due to developments I must now deal with you only. I had a discreet conversation with CLB Coopers yesterday who are handling you husband’s bankruptcy and was surprised to note that Mr Waraich has told the official receiver that he is only an occasional worker in the business and has no authority to have any dealings.”

It is certainly possible to see that the effects of being an overstayer might include difficulties in obtaining credit. But in order to show that Mrs Waraich’s bankruptcy was a consequence of the Claimants becoming overstayers rather than being due to underlying weaknesses in the business and/or problems flowing from Mr Waraich’s bankruptcy, the court would have needed far more than the mere assertion of the Claimants that this was so. They wholly fail to provide evidence beyond that mere assertion.

There is no evidence that either Claimant was prevented by their immigration status from raising money to pay debtors. There is no basis for concluding that but for the immigration issue, either the Second Claimant would have avoided bankruptcy or that other losses would have been avoided.

Mr Waraich asserts that such an offer was made at paragraph 44 of his witness statement of 21 January 2019. Mr Ansari denies any such offer was made.

Had an offer been made, it would have been highly relevant to the valuation of the loss of a chance in this case, since it would have indicated that Khan’s solicitors believed the case against them had real value.

In my judgment, it is highly unlikely that such an offer was made.

Issue 1 - Would the Claimants have issued proceedings against Khan’s within the limitation period?

Issue 2, namely would a claim against Khan’s have had a real and substantial prospect of resulting in an award of damages or settlement, like issue 3, when would a claim against Khan’s have been resolved, and issue 4, what is the value of the lost claim against Khan’s, is resolved by looking at the answers to issues 5 to 14 and I shall therefore deal with those issues first.

Issue 5 - What was the nature of each of the Claimants’ retainer of Khan’s?

Issue 6 - What advice did Khan’s give to the Claimants?

Issue 7 - Were Khan’s in breach of any duty owed to either or both of the Claimants by reason of the advice that they gave?

Issue 8 - Had Khan’s not been in breach of any duty owed to the Claimants, what instructions would either or both of the Claimants have given in respect of the immigration case?

Issue 9 - Had Khan’s not been in breach of any duty owed to the Claimants, what is the chance that the Claimants would have been granted further leave to remain earlier than 9 January 2009 and when would such leave have been granted?

Issue 10 - What loss flows from the loss of the chance of obtaining further leave to remain earlier than 9 January 2009?

Issue 11 - Had Khan’s not been in breach of any duty owed to the Claimants, what is the chance that the Claimants would have been granted indefinite leave to remain earlier than 7 February 2018 and when would such leave have been granted?

Issue 12 - What loss flows from the loss of the chance of obtaining indefinite leave to remain earlier than 7 February 2018?

Issue 13 - What is the chance that the Claimants would have been granted British Nationality earlier than they now will do and when will/would such nationality have been granted?

Issue 14 - What loss flows from the loss of the chance of obtaining British Nationality earlier than they now will do?

Issue 2 – Would a claim against Khan’s have had a real and substantial prospect of resulting in an award of damages or settlement?

Issue 3 - When would a claim against Khan’s have been resolved?

Issue 4 - What is the value of the lost claim against Khan’s?

For the reasons set out above, the Claimants have failed to show that they have lost anything of value in their claim against Khan’s. Only one small aspect of the claim can be said to have had a real and substantial prospect of success. The value of that claim is so small and the costs involved in the likely manner of pursuing it as to mean that they cannot be said to have lost anything of value.

It follows that:

I understand from counsel that it has not been possible to agree the terms of a final order consequential upon the version of this judgment sent out in draft. Accordingly the matter should be relisted for a hearing before me to deal with matters consequential to this judgment.

For the avoidance of doubt, time for applying to the Court of Appeal for permission to appeal this judgment and the order of 26 April 2019 runs from 26 April 2019 when this judgment was handed down and the order was made, unless the Court of Appeal orders otherwise.