Hibbert Pownall & Newton (A Firm) v Whitehead & Anor

In a professional-negligence claim arising from delayed litigation, damages must provide just compensation in light of facts known when the negligence claim is decided. The court need not ignore a later supervening event merely because it occurred after the notional earlier trial. A solicitor is not liable for failing to obtain an award which, in light of that event, would give the claimant’s estate an unjustified windfall.

A solicitor owes no duty to an unretained third party merely because the solicitor is concerned to protect another person’s interests. In the absence of a retainer, intended-beneficiary relationship or assumption of responsibility, a residual duty requires it to be fair, just and reasonable to impose one.

The first claimant’s late partner brought a wrongful-birth negligence claim against a health authority after their son was born with spina bifida. The solicitors’ negligent delay meant that the claim had not been resolved when she died. Her estate later settled the claim for £20,000, its recoverable losses having been limited by her death.

Griffith Williams J held the solicitors liable to the estate for the lost opportunity to recover future care costs before her death, awarding £118,829. He dismissed the father’s personal claim, holding that the solicitors owed him no duty. The solicitors appealed the primary award. The father cross-appealed on duty, conditionally upon the solicitors’ success.

Appeal allowed; cross-appeal dismissed. Laws LJ gave the principal judgment. Rix and Rimer LJJ agreed that the solicitors’ appeal should be allowed, and agreed that the cross-appeal should fail.

1. The estate could not recover damages from the solicitors measured by future care costs which the deceased mother did not in fact incur. Although the ordinary compensatory principle requires reconstruction of the position absent the wrong, it is not an inflexible rule. In a professional-negligence action based on litigation delay, later events relevant to just compensation may be considered. The mother’s death made an uncurtailed recovery for future care a windfall in the estate’s hands.

2. Rimer LJ added that the mother’s claim against the health authority had not been lost or impaired immediately before her death. Her estate could pursue the losses accrued during her lifetime and did settle that claim. The solicitors’ duty was to prosecute the mother’s claim properly, not to secure compensation for future costs which were known never to have been incurred. The Bwllfa principle supported using known facts rather than speculation.

3. The solicitors owed the father no personal duty. He had not retained them, was not an intended beneficiary, and they had assumed no responsibility to him. The residual question under Caparo was whether a duty would be fair, just and reasonable. The potential conflict with the estate, his adverse relationship with its representatives, his own solicitors, and the absence of any request for advice all told against such a duty.

4. The solicitors’ concern to secure provision for the child did not require them to investigate and advise upon a possible personal claim by the father as a surrogate for a claim the child could not bring. Whether a father may in some circumstances possess a wrongful-birth claim was left open, since it was unnecessary to decide it.

• Court of Appeal (Civil Division) Allowed the solicitors’ appeal against the estate’s primary claim and dismissed the father’s cross-appeal: [2008] EWCA Civ 285.
• High Court of Justice, Queen’s Bench Division Griffith Williams J awarded the estate £118,829 on the primary professional-negligence claim and dismissed the father’s personal claim.