Moffat v Warner Goodman & Streat (A Firm)

A professional-negligence claim requires proof not only of breach but also of quantifiable loss caused by the breach. Where the underlying personal-injury claim would probably have failed for lack of reliable medical evidence establishing diagnosis, causation and lasting injury, mishandling that claim causes no recoverable loss. An unrepresented litigant is not denied a fair hearing merely because the opposing party is professionally represented. The question is whether the case was so complex or difficult that the litigant could not fairly present it, resulting in a substantive inequality between the parties.

Mr Moffat sought permission to appeal from the dismissal by His Honour Judge Rudd, on 19 September 2001, of his professional-negligence claim against his former solicitors. The claim alleged that the solicitors negligently treated his personal-injury proceedings against his former employer as struck out when they had been adjourned generally.

The underlying claim concerned illness following workplace exposure to chemicals, oil and fumes. The medical evidence did not establish that the alleged exposure caused the claimed continuing conditions. Mr Moffat also argued that his lack of representation at trial created an inequality of arms contrary to Article 6 of the European Convention on Human Rights. The central issues were whether the solicitors’ breach caused quantifiable loss and whether the trial had been unfair.

1. Permission refused; application dismissed. The court endorsed the judge’s conclusion that, although negligence by the solicitors could be shown in treating the proceedings as struck out, Mr Moffat had to establish a quantifiable loss caused by that negligence.
2. The underlying personal-injury action would not probably have produced damages exceeding the £2,500 already paid into court. The medical reports did not attribute the claimed symptoms to toxic effects of the exposure, apart from an asthmatic condition which had not endured. Dr Lewith’s report did not provide a proper diagnosis, establish an adequate aetiology, or demonstrate that the exposure caused the diagnosed symptoms. It therefore could not sustain the underlying claim.
3. The fact that Mr Moffat appeared in person against an experienced barrister did not itself establish a breach of Article 6. There may be cases of such complexity or difficulty that an unrepresented party cannot fairly present his case. The relevant question is whether the circumstances created a substantive inequality which made fair adjudication impossible. This case was straightforward, and the trial judge understood and addressed the matters on which Mr Moffat relied.
4. The application was refused because the proposed appeal had no realistic prospect of success. The court noted the risks of costs associated with an appeal, but that was not the reason for refusing permission.

• Court of Appeal (Civil Division): Permission to appeal from the dismissal of the professional-negligence claim was refused. Application dismissed.
• Queen’s Bench Division, Southampton District Registry: His Honour Judge Rudd dismissed the claim on 19 September 2001.