Perry v Raleys Solicitors

The appellant, a former miner who suffered Vibration White Finger (VWF), sued his former solicitors for negligent failure to advise about a services award under the DTI VWF scheme. The County Court dismissed his claim, finding he had not shown that the negligence caused him to settle at an undervalue because he would not have honestly pursued a services claim. The Court of Appeal allowed the appeal, holding that the trial judge had erred by conducting a trial within a trial on the balance of probabilities as to whether the claimant would have succeeded in the underlying services claim, and that the correct approach was to assess the lost chance of success. The court concluded the claimant lost an 80% chance and quantified damages accordingly.

1. Disposition: The appeal is allowed. The Court of Appeal overruled the trial judge's critical factual conclusion that the claimant would not, honestly, have pursued a services claim and quantified damages at the agreed sum of £14,556.15, plus interest from 1 December 2006.
2. Legal principle on causation and loss of chance: Where negligence by professionals deprived a claimant of the opportunity to pursue a claim against a third party, the correct approach is normally to assess the lost chance of success as a percentage and quantify damages accordingly. A full factual trial of the hypothetical underlying litigation should be avoided unless the outcome of that hypothetical litigation is overwhelmingly clear (i.e. virtually certain or negligible). The court applied this approach following the analysis in Hanif v Middleweeks and related authorities, and distinguished the trial judge's approach which effectively decided the underlying hypothetical claim on the balance of probabilities (paras 34–39).
3. Burden and evidence on allegations of dishonesty or hopelessness: Where a defendant asserts that a notional claim would have been dishonest or hopeless, the evidential and legal burden of proving that assertion lies on the defendant. If the claimant's position is supported by strong expert medical findings that prima facie satisfy the relevant factual matrix, the defendant must produce good evidence to rebut that presumption (paras 41–46).
4. Application to scheme-based VWF services claims: The judge erred in treating the question whether the claimant "honestly met the factual matrix" as a matter to be decided on the balance of probabilities in the negligence action. The correct two-step inquiry is: (a) would the claimant, if properly advised, have pursued a services claim (a balance of probabilities question of causation); and (b) if so, what were the claimant's chances of success (a percentage evaluation of a lost chance) (paras 35–39).
5. Trial judge's factual errors: The Court of Appeal found the trial judge had failed adequately to respect and reason with the jointly instructed expert medical evidence and had given undue weight to limited contemporary anecdotal material (including social media entries) and to incomplete cross-examination. The trial judge also misallocated burdens (paras 40–56).
6. Quantification and discount: Accepting the trial judge’s assessment of loss of chance once causation was made out, the court concluded that the claimant had lost an 80% chance of success and quantified damages at the agreed figure of £14,556.15 plus interest (paras 23, 40–41, 58).
7. Interest: In the exercise of discretion under section 69 County Courts Act 1984, the court awarded simple interest at the judgment rate (Judgments Act rate) of 8% from 1 December 2006 to judgment, on the grounds of long delay, the nature of the claim, and the defendants’ conduct in defending the claim vigorously (paras 62–68).

• Court of Appeal (Civil Division): Appeal allowed; trial judge's causation findings overruled; damages quantified at £14,556.15 plus interest from 1 December 2006 (Court of Appeal judgment [2017] EWCA Civ 314).
• County Court at Leeds: Original trial judge His Honour Judge Saffman dismissed the claim on causation grounds by order dated 15 April 2015 (decision appealed to the Court of Appeal).