Boyle v Thompsons Solicitors

In a professional negligence claim against solicitors conducting a Criminal Injuries Compensation Authority appeal, the standard is that of the reasonably competent specialist practitioner, assessed without hindsight. A solicitor is not negligent merely because a tactical judgment later proves unsuccessful, particularly where the solicitor must choose between competing risks and cannot manipulate independent expert evidence.

For loss of a chance, the court must assess what valuable opportunity was lost and its prospects of success. The claimant must show a real and substantial chance, rather than a negligible one. Where the underlying tribunal has already decided the claim on its merits, the court must assess the likely effect of the alleged negligence on that decision.

The claimant pursued an appeal before the Criminal Injuries Compensation Authority concerning compensation for psychiatric injury and loss of earnings following an assault by her former partner. The appeal failed because the Panel was not satisfied that her PTSD and resulting inability to work were solely attributable to the incident relied upon.

She alleged that the defendant solicitors had negligently failed to obtain stronger reports from an independent psychologist and treating psychiatrist, failed to ask sufficiently clear questions, failed to arrange a further examination or conference, and mishandled disclosure. She claimed that these failures caused the loss of a chance to obtain substantially greater compensation.

The central issues were whether the defendant had fallen below the standard of a reasonably competent specialist solicitor and, if so, whether the alleged breach had caused a real and substantial loss of chance.

1. Claim dismissed. The defendant had not acted negligently or in breach of duty.
2. The applicable standard was that of the reasonably competent solicitor specialising in Criminal Injuries Compensation Authority claims. The court should not impose duties beyond the solicitor’s retainer. Reasonable competence and familiarity with the relevant procedure were required, but exceptional ingenuity was not. An error of judgment did not establish negligence where the solicitor faced a genuine tactical dilemma. Hindsight was not a touchstone of negligence.
3. The defendant had reasonably asked the independent psychologist to reconsider her opinion in light of the treating psychiatrist’s report. The psychologist had declined to endorse permanence or sole causation. A further request risked producing an even less favourable report, which had to be disclosed under the CICA Scheme 2001. The solicitor was not obliged to manipulate or improve an independent expert’s evidence.
4. The questions put to the psychologist were sufficiently clear. A further examination was not required when the expert had not indicated that one was necessary. Disclosure of the unfavourable report was mandatory under the Scheme and could not itself constitute negligence.
5. Even if there had been a breach, causation failed. Applying the approach in Kitching v RAF Association [1958] 1 WLR 563 and Robert Channon v Lindley Johnstone (A Firm) [2002] EWCA Civ 353, the court had to assess what chance had been lost and its value. The claimant had to establish a real and substantial, not negligible, chance of a better outcome.
6. The Panel had already expressed serious concerns about sole causation. The medical evidence remained equivocal and the claimant’s psychiatric difficulties were attributable to a number of factors, including earlier depression, prolonged domestic violence, bereavement and later workplace incidents. A further report would have had no effect, or at most a negligible effect, on the appeal.
7. Had liability and causation been established, the loss of chance would have been assessed at 25 per cent of £64,539, namely £16,134.75. That alternative assessment did not affect the dismissal of the claim.

First-instance decision. No prior appellate decision is stated in the judgment.