Boateng v Hughmans (a firm)

A claimant seeking substantial damages for a solicitor’s negligent failure to give advice must establish three matters: the advice that should have been given, the action the claimant would probably have taken if properly advised, and loss caused by the failure to give that advice. Causation in an omission case depends first on the claimant’s hypothetical response, assessed on the balance of probabilities. The court must not begin by treating the issue as a historical chain-of-events question. Where the claimant cannot prove what he would have done, substantial damages cannot be recovered, although liability may be established and nominal damages awarded.

Mr Boateng sued his former solicitors for negligence arising from advice given in connection with the sale and redevelopment of his home. The solicitors failed to warn him adequately of the risk that the purchaser, a small private company, might become insolvent before carrying out the works and granting him a lease and the freehold interest contemplated by the contract.

The deputy High Court judge found negligence but awarded nominal damages. He treated later events as potentially breaking the chain of causation and concluded that he could not determine what Mr Boateng would have done if properly advised. Mr Boateng appealed. The solicitors cross-appealed on liability and related procedural matters. The central issue was whether the claimant had proved the causal link necessary for substantial damages.

1. Appeal dismissed. Liability in negligence was established, but the claim for substantial damages failed. There was no order on the cross-appeal or on the applications to adduce further evidence.

2. In a solicitor’s negligence case based on failure to advise, the claimant must prove: (i) what advice a normally competent solicitor should have given; (ii) what action the claimant would probably have taken if that advice had been given; and (iii) that the loss was caused by the failure to give the advice. Quantification arises only after the relevant loss has been identified.

3. The judge should first have addressed the hypothetical question identified in Allied Maples Group Ltd v Simmons & Simmons [1995] 1 WLR 1602: what would the claimant have done if properly advised? The judge had instead approached causation as a historical chain-of-events issue and considered whether later conduct had broken the chain.

4. The essential risk was that Mr Boateng might lose both his interest in the property and an effective remedy if the purchaser became insolvent before performing its obligations. A reasonably competent solicitor should have drawn that risk to his attention. The solicitors’ failure to do so established liability.

5. Mr Boateng failed to prove, on the balance of probabilities, that he would have sold the property with vacant possession, renegotiated the transaction, or taken another specific course if properly advised. His evidence was unreliable and the judge was entitled to decline to infer the necessary hypothetical action. The alleged later break in causation therefore did not arise.

6. The separate contention concerning personal guarantees was unsupported by evidence that either shareholder would have provided one. Any chance of obtaining such a guarantee was speculative and could not support substantial damages.

Nominal damages of £2 were therefore upheld. The appellant was ordered to pay the respondent’s costs, subject to the stated legal-aid limitation.

• Chancery Division: On 30 March 2001, His Honour Judge Rich QC, sitting as a deputy High Court judge, found liability but awarded nominal damages of £2.
• Court of Appeal (Civil Division): The appeal was dismissed. There was no order on the cross-appeal.