Edwards v Hugh James Ford Simey (a firm)

In professional-negligence claims arising from a lost or under-settled claim, damages ordinarily measure the value of what was lost at the date the original claim would have been resolved, less compensation actually received. The court assesses the lost claim by its prospects, awarding its full value only where success was unanswerable and nothing where it was hopeless. It should not conduct a trial of the underlying claim on the balance of probabilities or ask what the claimant can prove years later. Evidence emerging after the notional date may be used where it would have been available then. Only exceptional supervening events, involving sufficiently certain and serious consequences such that ordinary compensation would be unjust, justify departure. Fraud remains outside the court’s assistance.

Mr Thomas Watkins instructed Hugh James Ford Simey to pursue compensation under the DTI vibration white finger scheme. After negligent advice, he accepted an offer for general damages and abandoned his services claim. The County Court found the advice negligent but, relying on later vascular evidence, held that the services claim had no value and awarded no loss. After Watkins’s death, his daughter continued the estate’s claim. The appeal concerned whether later evidence, unavailable when the scheme claim would have been resolved, could retrospectively establish that the abandoned claim was worthless, or whether loss had to be valued as a lost chance at the original date.

The appeal was allowed. Irwin LJ gave the leading judgment, with Singh and Underhill LJJ agreeing. The decision below was quashed and the claim remitted for rehearing.

1. Full compensation. Professional negligence attracts the ordinary compensatory principle of restitutio in integrum. The court must establish what loss the negligence caused and restore the claimant, so far as money can, to the position competent conduct would have produced.
2. Valuation of a lost claim. Where negligent advice prevents a claim, causes it to be abandoned or lost, or produces an under-settlement, loss is the difference between the compensation actually received and the amount that would have been obtained without negligence. The court values the lost claim rather than conducting a trial of the underlying cause. A hopeless claim is worthless, an unanswerable claim attracts its full value, and other claims are assessed by a realistic percentage prospect of success. The assessment concerns the original trial or settlement date. This approach was consistent with Mount v Barker Austin (A Firm) [1998] PNLR 493 and the loss-of-chance authorities.
3. After-coming evidence. Later evidence does not generally permit a retrospective assessment of what the claimant can prove at the professional-negligence trial. It may be considered where competent conduct would have made the evidence available by the notional trial or settlement date. Charles v Hugh James Jones & Jenkins [2001] 1 WLR 1278 and Dudarec v Andrews [2006] 1 WLR 3002 did not authorise consideration of every later development.
4. Exceptions. The court will not assist recovery based on fraud. A wholly exceptional supervening event may justify departure from the ordinary approach where its consequences are sufficiently certain and significant or serious, and ordinary compensation would otherwise fail to do justice.
5. Application. No fraud was proved. The later expert evidence would not have been available when the scheme claim was to be resolved, and it was not sufficiently categorical or overwhelming. The Recorder therefore applied the wrong approach by treating the later evidence as conclusively establishing that the services claim had no value. The matter was remitted for assessment of the lost claim’s prospects and value at the relevant date.

Underhill LJ added that there was an analogy with appellate consideration of an unexpected event which falsifies a basic assumption underlying a damages award. That analogy, drawn from Mulholland v Mitchell [1971] AC 666, was a concurring observation and did not alter the common basis of decision.

1. Court of Appeal (Civil Division) — [2018] EWCA Civ 1299 : appeal allowed; decision quashed and claim remitted for rehearing.
2. County Court at Leeds — Recorder Miller, judgment dated 16 May 2016: advice found negligent, but the claim was treated as having no loss because later evidence showed that the abandoned services claim had no value.