Messrs G A Moffat & Ors v Messrs Burges Salmon (a firm)

In professional-negligence claims involving loss of a chance to recover damages in earlier proceedings, the claimant must establish the relevant duty, breach, reliance and causation independently. The assessment of loss then concerns the chance of a better result in the underlying proceedings. Where those proceedings were actually tried, and it is conceded that an earlier trial would have produced the same result apart from limitation, the earlier judgment may be used to quantify the loss. A party cannot reopen factual findings merely because it was not involved in the earlier litigation. Any departure would require exceptional circumstances, such as a capricious or unreasonable decision in the underlying case.

The respondents were dairy farmers who sued their former solicitors, Burges Salmon, alleging negligent advice about the time within which claims against the National Farmers Union should be issued. Their alleged loss was the opportunity to recover sums which were later held to be statute-barred in litigation against the NFU.

Some of the respondents had been lead plaintiffs in the NFU proceedings, which Evans-Lombe J had tried and determined. Neuberger J held that the respondents could rely on that judgment for assessing loss, subject to proving duty, breach, reliance and causation independently. Burges Salmon appealed, contending that it should be able to challenge the earlier factual findings.

1. Appeal dismissed. The order was clarified by adding “but not otherwise” after the reference to proving losses. The judgment of Evans-Lombe J could be relied upon only for proving loss in the present proceedings.
2. There was no issue estoppel or wider binding effect. The respondents had to prove independently the duty owed by Burges Salmon, its scope, breach, reliance and causation in the sense of whether they would have acted on the advice which ought to have been given.
3. In a loss-of-chance claim, the relevant question is whether the claimant lost a real and substantial chance of recovering more in the underlying proceedings. The assessment of that chance is part of the measure of damages. The court declined to treat the threshold question and the valuation of the chance as necessarily separate questions of causation and damages.
4. For the four lead plaintiffs, the NFU proceedings had actually been tried. Burges Salmon had conceded that an earlier trial would have reached the same conclusions, except that periods previously excluded by limitation would not have been time-barred. Accordingly, the earlier judgment supplied the basis for assessing the lost chance, and no discount was required.
5. Only exceptional circumstances could justify reopening the underlying result for this purpose. A mere possibility that another judge might reach a different factual conclusion was insufficient. The remaining claimants had no specific findings in the NFU judgment and therefore had to prove their cases by admissible evidence in the ordinary way.

• Court of Appeal (Civil Division) [2002] EWCA Civ 1977: appeal from the order of Neuberger J dismissed with costs. An interim payment of £30,000 was ordered.
• High Court, Chancery Division: Neuberger J held that the claimants could rely on the earlier NFU judgment for assessing their losses, while leaving duty, breach, reliance and causation to be proved in the present proceedings.