Browning & Anor v Messrs Brachers (a firm)

In a solicitor-negligence claim concerning lost litigation, the court must assess what the claimant would probably have recovered at a notional trial had the solicitor performed the retainer. The chance of success on liability is expressed as a percentage. The damages likely to have been recovered if liability were established are assessed separately by identifying the most probable award, rather than by applying a further percentage chance to an exaggerated or uncertain claim value. A broad-brush assessment is appropriate, without conducting a full retrial of the lost action. Difficulties caused by the solicitor’s negligence, including lost evidence and delay, should generally operate against the negligent solicitor. Reasonable mitigation must be taken into account, including measures that would have reduced continuing loss.

The claimants, goat farmers, sued their former solicitors for negligence in conducting a counterclaim against the seller of goats infected with Johne’s disease. The solicitors admitted that they had failed to serve important expert and witness evidence in time, leading to an order barring reliance on that material and the dismissal of the counterclaim.

The claimants alleged wider failures in preparing and progressing the litigation. The central issue was what prospects and damages the counterclaim would have had at a notional trial in December 1996 if the solicitors had performed their duty, together with the consequences of the claimants’ alleged failure to mitigate.

1. Negligence. The defendant solicitors’ negligence extended well beyond their admissions. They failed to progress the action, obtain appropriate evidence, advise on the proof required, preserve records, and make proper use of Professor Steele-Bodger’s expertise. These failures materially impaired the counterclaim.
2. Assessment of the lost chance. The court adopted the approach in Mount v Barker Austin [1998] PNLR 493 and Sharif v Garrett & Co [2002] 3 All E.R. 195. It assessed separately the percentage chance of establishing liability and the damages most probably recoverable if liability were established. The exercise was broad-brush and was not a trial of the original action.
3. The claimants had an 80 per cent chance of proving that the purchased herd was heavily infected with Johne’s disease, reduced to 70 per cent to reflect the risk of failing to establish liability. Their causes of action included implied terms under sections 14(2) and 14(3) of the Sale of Goods Act 1979, collateral warranty, misrepresentation and negligence.
4. A heavily infected herd would probably have been unmerchantable and unfit for its purpose. The representation concerning Johne’s disease gave the claimants a strong potential case in warranty or negligence. The court did not finally determine the disputed issues concerning the contractual exclusion clause because the assessment concerned prospects at the notional trial.
5. The damages were reduced to reflect probable contributory causes of loss and the claimants’ failure to adopt reasonable disease-control measures. More radical measures, such as closing or relocating the business, were unnecessary. Losses were therefore confined to the period in which reasonable mitigation could have controlled the disease.
6. Judgment was entered for the claimants. The defendant was ordered to indemnify them against liability for the relevant costs orders, less VAT, including the costs of the discontinued action against Mrs Gilham.

The judgment records that the Court of Appeal had previously dismissed the claimants’ appeal against an order striking out their notice of discontinuance in the underlying litigation. That decision concerned the same underlying dispute and was not an appeal from the present negligence action.