Leonard & Anor v Byrt & Ors

In a professional-negligence claim arising from failed litigation, causation must be assessed against the loss actually alleged. Where the claimed loss is the opportunity to pursue a wider claim, the claimant must show a real or substantial prospect that the wider claim would have been funded, permitted to proceed and ultimately succeeded. The court may evaluate successive contingencies without mechanically performing a mathematical calculation. A claimant cannot recover for the loss of a claim as originally pleaded where that claim was lost through the claimant’s own refusal of reasonable settlement advice. Summary judgment is appropriate where there is no real prospect of establishing breach or causation.

The appellants’ yacht failed shortly after its maiden voyage. Their primary proceedings against the builders, marine surveyors and designer were struck out for gross delay under the Civil Procedure Rules 1998, and permission to appeal was refused.

The appellants then sued the solicitor, solicitors’ firm, expert metallurgist’s executors and barrister involved in the primary litigation. They alleged that professional negligence had deprived them of public funding and of the opportunity to amend and pursue the primary claim on a wider constructive-total-loss basis. The High Court granted summary judgment under rule 24.2. The central questions were whether any respondent had a real prospect of being found in breach and, if so, whether the alleged breach caused a recoverable loss.

1. Appeal dismissed. The appellants had no real prospect of establishing breach of duty against any respondent. The Court of Appeal upheld summary judgment for the respondents.
2. The allegation against Dr Baker depended on an attendance note recording an unsolicited telephone conversation with the second appellant. The note was hearsay, Dr Baker was deceased, and the conversation was not a considered expert opinion intended to add to or replace his written report. The apparent inconsistency with his earlier report did not provide a proper basis for professional-negligence proceedings.
3. Mr Stafford’s advice that admitting Mr McAllister’s competing expert report was likely to fail was justified by substantial procedural and evidential difficulties. He had already advised that the proper course was to ask Dr Baker to consider and, if appropriate, incorporate the material. The appellants’ own instructions created the impasse.
4. Mr Byrt’s letter to the Legal Services Commission on 13 July 2000 was weak when viewed in isolation. It had to be assessed against his sustained earlier efforts to obtain funding. By then the legal-aid authorities had repeatedly refused funding beyond mediation. The letter did not establish negligent conduct.
5. The causation case also failed. The relevant loss was the alleged opportunity to recover damages on the wider constructive-total-loss basis, not the value of the original pleaded claim. That original claim was lost through the appellants’ refusal of an £80,000 settlement contrary to legal advice. The wider claim depended on several contingencies, especially permission to amend and resistance to strike-out after years of delay. The chance of obtaining permission to amend in 2001 was negligible. The court could assess the contingencies without a precise mathematical calculation, consistently with Hanif v Middleweeks [2000] Lloyd’s Rep 920.
6. Lord Justice Moses and Sir Mark Potter, P, agreed with Lord Justice Wilson. The appeal was dismissed.

• Court of Appeal (Civil Division): Appeal from the summary judgment of Mr Justice Griffith Williams was dismissed. The judgment appealed was [2007] EWHC 529 (QB).
• High Court, Queen’s Bench Division: Summary judgment was entered for the respondents under rule 24.2 of the Civil Procedure Rules 1998 because the appellants had no real prospect of succeeding on their professional-negligence claims.
• Central London County Court: The primary litigation was struck out on 13 November 2002 under rules 3.4(2)(b) and (c) of the Civil Procedure Rules 1998 for gross delay. Permission to appeal was later refused.