Balamoan v Holden & Co (A Firm)

In a professional-negligence claim arising from solicitors’ conduct of earlier litigation, a claimant seeking damages for loss of a chance must prove that the negligence caused a real prospect of a better result than the result actually obtained. A remittal for assessment does not establish that damage was suffered. The assessing judge may reject the claim after evaluating causation, expert evidence and credibility. On an application for permission to appeal, permission should be refused where the proposed appeal has no realistic prospect of success. The Court of Appeal should not permit a substantive appeal merely to rehearse numerous criticisms of a convincing judgment, particularly where they challenge findings made by a judge who saw and heard the evidence.

The applicant brought a professional-negligence claim against his former solicitors, alleging that their inadequate conduct of an earlier nuisance action caused him to lose the opportunity to recover more than the settlement he obtained personally.

An earlier Court of Appeal decision allowed his appeal on liability and remitted the matter for assessment of whether any loss caused by the solicitors’ failures exceeded the settlement sum. On the subsequent assessment, Judge Kennedy QC rejected the claim, finding that the applicant had failed to prove causation or any realistic prospect of a better recovery. The applicant sought permission to appeal against that decision. The central issue was whether the proposed appeal had a realistic prospect of success.

Application refused.

1. The permission question was whether the proposed appeal had a realistic prospect of success. The Court of Appeal was not required to examine every one of the applicant’s numerous criticisms where the judgment below was convincing and the proposed appeal was plainly doomed to fail.
2. The earlier Court of Appeal order did not determine that the applicant had suffered recoverable damage. It directed an assessment of whether the solicitors’ negligence had caused a loss exceeding the sum recovered in settlement. The applicant therefore still had to prove that proper investigation and preparation would have produced a better result than the settlement he achieved.
3. Judge Kennedy had resolved the central issues against the applicant. The medical evidence showed a temporary exacerbation of a pre-existing condition rather than a lasting condition caused by the pollution. The applicant also failed to establish a reasonable prospect that his alleged employment opportunities in Africa would have materialised or that the pollution prevented him from pursuing them.
4. Findings of credibility are particularly difficult to challenge on appeal because the trial judge saw and heard the evidence. The judge’s conclusion that the settlement was already more favourable than any result the applicant could have achieved was therefore entitled to substantial weight.
5. The dispute over the precise net amount received from the settlement could not affect the result. Even on the applicant’s lower figure, the judge’s reasoning showed that he would have found no recoverable loss.

Granting permission would have exposed the applicant to further costs in an appeal that could not succeed.

• Court of Appeal (Civil Division): In [2001] EWCA Civ 1378, Lord Justice Simon Brown refused permission to appeal.
• Hastings County Court: Judge Kennedy QC dismissed the professional-negligence claim after the remitted assessment on 15 February 2001.
• Earlier Court of Appeal: On 28 May 1999, Evans and Brooke LJJ allowed the applicant’s appeal on liability and remitted the question of loss for assessment.