Luke v Kingsley Smith & Company & Ors

For contribution purposes, claims arise from the same damage where the alleged wrongs may have combined to cause one loss, even though the wrongdoers acted at different times and their alleged breaches differ. The statutory language must be applied without gloss, by close legal analysis of the claims and the facts. The question is one of mixed fact and law. At the summary judgment stage, the court asks whether the contribution claim has a real prospect of success. It must not conduct a mini-trial or resolve disputed issues of causation. A later professional adviser may potentially share liability for the loss of a claimant’s chance to pursue litigation where the earlier and later negligence may together have caused that loss.

The claimant brought professional negligence proceedings against his former solicitors, alleging that their delay caused him to lose the chance of succeeding in an action against the Ministry of Defence. The claim was settled for £10,000 and costs after successor solicitors and counsel advised that the underlying action was vulnerable to being struck out.

The former solicitors issued Part 20 contribution claims against the successor solicitors and counsel, alleging that negligent advice about the risk of strike-out and the proposed settlement caused or contributed to the claimant’s loss. The successor solicitors and counsel applied for summary judgment, arguing that they could not be liable for the same damage as the former solicitors under the Civil Liability (Contribution) Act 1978. The central issue was whether the contribution claims had a real prospect of success.

1. Summary judgment. Under CPR Part 24, the applicant had to show that the contribution claims had no real prospect of success. A prospect had to be more than fanciful or merely arguable. The court was not to conduct a mini-trial or engage in guesswork.
2. Statutory test. The court applied the language of section 1(1) of the Civil Liability (Contribution) Act 1978 without adding a gloss. The relevant inquiry was whether the alleged contributors were potentially liable for the same damage, loss or harm. The issue required legal analysis of the claims and close examination of the facts. It was a mixed question of fact and law.
3. Meaning of same damage. The authorities, particularly Royal Brompton Hospital NHS Trust v Hammond [2002] 1 WLR 1397; 2002 UKHL14, did not require the alleged wrongs to be identical. An overlapping element of damage could be sufficient. The fact that the alleged breaches occurred at different times did not necessarily prevent liability for one indivisible loss.
4. Application. It was realistically arguable that the claimant’s loss was the loss of the chance to pursue the Ministry of Defence action successfully to trial, caused by the combined effect of the former solicitors’ delay and the later alleged negligence in assessing strike-out risk and advising settlement. Issues of causation and any intervening act were pre-eminently matters for the trial judge. The court declined to treat Webb v Barclays Bank Plc [2001] Lloyd's Rep 500 as wrongly decided or displaced by Royal Brompton.
5. The applications by the successor solicitors and counsel for summary judgment failed. The former solicitors’ responsive application against the claimant therefore fell away. Costs were reserved for argument.