Chweidan v Mischcon De Reya Solicitors

A solicitor is judged by the standard of the reasonably competent practitioner, assessed against the client’s instructions and the information reasonably available at the time. The solicitor is not required to identify every theoretically available claim where the client’s instructions disclose no factual basis for it.

In a professional-negligence claim based on lost litigation, the claimant must show a real and substantial prospect of success. The court must then assess the likely value of the underlying claim and apply an appropriate percentage for the relevant uncertainties. Where success depends on separate hurdles, the prospects may be assessed successively, while recognising that the hurdles may interact.

The claimant instructed the defendant solicitors in connection with employment claims against his former employer. The employment tribunal found unfair dismissal and direct disability discrimination, but the disability findings were later overturned on appeal.

The claimant alleged that the solicitors negligently failed to advise and plead claims based on failure to make reasonable adjustments, and negligently lodged an employment appeal out of time. The defendant admitted the latter breach but disputed causation and loss. The central issues were whether the alleged omissions fell below the professional standard and, if so, the value of the lost opportunities.

1. Professional standard and scope of duty. The defendant owed concurrent contractual and tortious duties to exercise the reasonable skill and care expected of a competent and reasonably experienced solicitor. The scope of the duty depended principally on the instructions received and the particular circumstances. The assessment had to be made without hindsight.
2. Reasonable-adjustments claims. On the information supplied by the claimant, there was no factual basis indicating that a workplace practice placed him at a substantial disadvantage requiring adjustment. He had consistently maintained that he had performed extremely well and that the adjustments already made to his working hours and transport were sufficient. The solicitors were entitled to rely on those instructions unless later information required further inquiry. The relevant factual basis emerged only after late disclosure and witness statements, when an amendment was sought promptly but refused. The omission was not an error so blatant as to constitute negligence. The proposed adjustments would in any event have had, at best, negligible prospects.
3. Loss of a litigation opportunity. Applying the approach in Kitchen v Royal Air Force Association and others [1958] 1 WLR 563, Dixon v Clement Jones [2004] EWCA Civ 1005 and Mount v Barker Austin [1998] PNLR 493, the claimant had to establish a real and substantial, rather than negligible, prospect of success. The court then had to make a realistic assessment of the underlying litigation, allowing for settlement, evidential uncertainty and the fact that a trial within a trial was inappropriate.
4. The admitted failure to lodge the cross-appeal in time deprived the claimant of a real opportunity. The proposed challenge to the refusal to amend was bound to fail, but the age-discrimination and disclosure grounds had a slightly less than 50% prospect of success. The underlying age-discrimination claim had a one-third prospect. Taking account of the interaction between the hurdles, the overall chance was assessed at 18%.
5. The most probable value of the underlying claim was £357,574.86. Damages for the lost opportunity were therefore £64,363.47, with a further £1,800 for lost interest. Judgment was entered for the claimant in the net sum of £66,163.47, subject to consequential orders.

The judgment describes earlier employment tribunal proceedings, an Employment Appeal Tribunal decision overturning findings of direct disability discrimination and remitting claims, and a subsequent Court of Appeal decision allowing the employer’s appeal and substituting findings that there had been no unlawful direct disability discrimination. The present proceedings were a first-instance professional-negligence claim against the claimant’s former solicitors.