Raleys Solicitors v Barnaby

In a professional-negligence claim arising from advice to accept a full and final settlement, causation may be proved where the court is entitled to find that, if properly advised of the value and prospects of a further claim and of available interim payment, the claimant would probably have rejected the offer and pursued that claim. An appellate court will not disturb such findings where they are supported by contemporaneous evidence and a realistic assessment of the alternatives.

The instruction to avoid a trial within a trial in loss-of-chance claims does not assist where the factual findings made below establish causation. That approach is of greater relevance where the underlying action has been struck out and cannot fairly be tried.

A former coalminer instructed solicitors to pursue compensation for vibration white finger under a tariff-based scheme. He accepted a full and final settlement for general damages and handicap on the labour market after being advised that a services claim would take time and that no further interim payment was available. That advice was negligent. Acceptance prevented a later services claim.

The Leeds County Court found that, if properly advised, he would probably have rejected the offer, obtained an interim payment and pursued the services claim. It awarded £5,925 for the lost chance, assessed at 75 per cent. The solicitors appealed only on causation, relying on inconsistencies in the claimant’s medical history and on the loss-of-chance principle against conducting a trial within a trial.

1. Appeal dismissed. Maurice Kay LJ, with whom Davis and Floyd LJJ agreed, held that the trial judge’s causation findings were unassailable. The claimant had probably rejected the full and final settlement and pursued the services claim if he had been told both its approximate value and prospects and that he could obtain a further interim payment.

2. The proposed amendment raising a legal point was refused. The observation in Dixon v Clement Jones Solicitors [2004] EWCA Civ 1005 that a loss-of-chance claim should not become a trial within a trial was more relevant where the underlying action had been struck out and could no longer fairly be tried. In any event, it did not undermine the factual findings in this case.

3. The judge was entitled to rely on the contemporaneous services questionnaires, the attendance note recording the claimant’s need for money for a holiday, and the practical consequence that he would have had little to lose by continuing the services claim while receiving an interim payment. The contrary suggestion, that he abandoned the claim because he knew it was exaggerated or dishonest, was inherently implausible.

4. The attempt to discredit the Scheme’s MAP 1 medical assessment by reference to state-benefit assessments was misconceived. The assessments had different purposes and criteria; the Scheme would have assessed the services claim by reference to MAP 1, with MAP 2 confined to co-morbid conditions. The MAP 1 report was detailed and supported by test results. It therefore provided no basis to disturb the judge’s finding that the services claim had a real prospect of success.

• Court of Appeal (Civil Division) — dismissed the solicitors’ appeal against the finding that negligent settlement advice caused the loss of a chance to pursue a services claim: [2014] EWCA Civ 686.

• Leeds County Court — His Honour Judge Gosnell found negligence and awarded £5,925, reflecting a 75 per cent prospect of a further recovery under the compensation scheme.