Shaw v Leigh Day (a firm)

A solicitor is not professionally negligent merely because another solicitor might have taken a different course. Where a retainer permits a range of reasonable decisions, breach requires conduct outside that range. In an inquisitorial inquest, the scope of inquiry, evidence and questioning remains for the coroner. A solicitor who makes appropriate representations is not liable because the coroner excludes evidence or restricts questioning. A complaint to the GMC is outside a solicitor’s retainer unless expressly instructed. Professional negligence also requires proof of causative loss; dissatisfaction, loss of closure or a client’s decision to pursue later proceedings is insufficient.

Mrs Shaw, as personal representative of her late father’s estate, sued his former solicitors, Leigh Day, for professional negligence. She alleged that they mishandled representation at the inquest into his death following a TAVI procedure and failed to investigate the valve, clinical trials, suitability for treatment, possible regulatory complaints and possible claims against the treating clinicians and hospital.

She contended that these failures prejudiced the subsequent clinical negligence claim and deprived her of the opportunity to obtain answers and closure. Leigh Day denied breach, causation and recoverable loss. The central issues were whether their tactical decisions fell below the standard of a reasonably competent solicitor and whether any omission caused actionable loss.

1. Claim dismissed. Judgment was entered for Leigh Day. None of the allegations of professional negligence was established on the balance of probabilities.
2. The applicable standard was that of a reasonably competent solicitor receiving the relevant instructions, taking account of any specialist expertise. Where several reasonable decisions or courses were available, breach required proof that the solicitor’s conduct fell outside that range. A different professional view, or the client’s belief that more should have been done, was insufficient.
3. An inquest was inquisitorial, not adversarial. Although interested persons could make representations about its scope, evidence and witnesses, the coroner retained responsibility for the final decisions. Leigh Day had obtained appropriate expert advice, disclosed relevant material and ensured that the principal issues, including suitability for TAVI and informed consent, were explored. It was reasonable to accept the coroner’s view that material concerning clinical trials was irrelevant once it was established that the deceased had not been a trial patient.
4. The failure to instruct a further “basic cardiologist” was not negligent. The cardiologists instructed were suitably qualified, and the later instruction of an independent interventional cardiologist provided sufficient time and material for proper preparation. There was no evidential basis for alleging that different timing or further evidence would have altered the inquest.
5. Leigh Day had no duty to make or advise upon a GMC complaint without instructions. Nor was there a proper factual or expert basis for an Article 2 claim alleging systemic or operational failures by the Trust, or for a product-liability claim against the valve manufacturer.
6. The alleged loss of closure was not actionable loss caused by Leigh Day. In any event, the retainer was performed. The claims for total or partial failure of consideration and recovery of litigation costs therefore failed.

First-instance decision. No appellate history for this claim is stated in the judgment.