Abdel-Khalek v Ali

In a negligent-misstatement claim, related statements or impressions must be analysed separately where they may have had different effects on the decision causing the loss. An inaccurate estimate of the number of adverse cases does not, without more, establish that the distinct impression that the rate was higher than expected was false. The claimant bears the burden of proving that the operative impression was a misstatement and that it caused the loss. An evidential burden may shift on a particular factual issue, but it does not transfer the ultimate burden of proving the alleged misstatement or causation. Proof of other negligent misstatements therefore does not establish causation where the decisive impression remains unproved.

The claimant, a locum consultant ophthalmic surgeon, was offered a locum post at another NHS trust. The offer was withdrawn after the defendant, a fellow surgeon, told a consultant and a manager that the claimant’s patients had experienced complaints and complications, including cases said to be going to litigation.

After a 13-day trial, HHJ Belcher found two negligent misstatements: that about six patients had suffered complications and that two cases had gone or were expected to go to litigation. The claim was nevertheless dismissed because the claimant had not proved that the impression that his complication rate was higher than expected was false or that the negligent statements caused withdrawal of the offer.

The appeal concerned whether the statements were indivisible and whether the evidential burden required the defendant to prove the complication rate.

1. The appeal was dismissed. The Court of Appeal upheld the judge’s conclusion that the communications contained separate factual and evaluative impressions. The approximate number of patients said to have suffered complications was not indivisible from the distinct impression that the complication rate was higher than expected.
2. The judge was entitled to find that the latter impression was the real thrust of the communication and the critical factor in the decision to withdraw the offer. The decision-maker’s concern was the rate of complications, not whether the number was six, five, four or three.
3. The claimant bore the burden of proving that the impression about the rate was a misstatement. Although an evidential burden could shift on a particular factual issue after evidence of qualifying cases had been produced, the ultimate burden remained with the claimant. Establishing three cases rather than about six did not prove that the rate was not higher than expected.
4. The judge had found two negligent misstatements, concerning the approximate number of complications and the litigation position. However, the claimant failed on causation because he did not establish that the decisive impression was false, and the evidence did not permit its effect to be separated from the other aspects of the communication.
5. The existence of the duty of care was conceded. For the purposes of the appeal, the court assumed that concession was rightly made and did not determine the scope of liability on the extended Hedley Byrne basis referred to in Spring v Guardian Assurance Plc [1995] 2 AC 296. Lord Justice Sales agreed with Lord Justice Tomlinson.

1. Court of Appeal (Civil Division) — Appeal dismissed on 10 February 2016: [2016] EWCA Civ 80.
2. Leeds County Court — After a 13-day trial, HHJ Belcher delivered a reserved judgment on 6 August 2014 dismissing the claim.