Waraich & Anor v Ansari Solicitors (A firm)

A solicitor’s negligence claim concerning a lost legal claim requires the court to separate matters dependent on the claimant’s own conduct from matters dependent on third parties. The former are determined on the balance of probabilities. The latter are valued as a loss of chance, but only where the chance was real and substantial rather than speculative. A claim which had only a fanciful or unquantifiable prospect has no recoverable value. A solicitor’s retainer ordinarily includes advice reasonably incidental to the work undertaken. General damages for distress are not normally recoverable for breach of a solicitor’s retainer unless the retainer had a particular feature directed to protecting against distress or securing a specific beneficial result.

The claimants alleged that the defendant solicitors negligently failed to advise them to issue, within time, a professional negligence claim against Khan’s Solicitors. The underlying claim concerned allegedly negligent immigration advice which caused the first claimant’s work permit and leave to remain to expire, with consequential financial and nationality-related losses claimed by both claimants.

Breach by the defendant was admitted. The principal issues were whether the claimants would have issued proceedings against Khan’s, whether that claim had a real and substantial prospect of success, and the value of the lost claim. The court also considered the scope of Khan’s retainer, the alleged immigration consequences, claimed losses and damages for distress.

1. Loss-of-chance methodology. The court applied the approach in Kitchen v Royal Air Force Association [1958] 1 WLR 563. What the claimants themselves would have done had they been properly advised was determined on the balance of probabilities. Outcomes dependent on the conduct of others were assessed as a loss of chance.
2. Following Perry v Raleys [2019] UKSC 5, the court treated the claimants’ own decision whether to issue proceedings as an all-or-nothing balance-of-probabilities question. The prospects of success of the underlying claim were assessed as a chance. Under Allied Maples Group Ltd v Simmons & Simmons [1995] 1 WLR 1602 and Mount v Baker Austin [1998] PNLR 493, a merely speculative chance had no value.
3. The first claimant had retained Khan’s for advice on his immigration position generally, not merely to submit the particular application made. Applying Minkin v Landsberg [2015] EWCA 1152, the retainer included advice reasonably incidental to the work undertaken. Khan’s advice to pursue the application made was negligent.
4. The claimants would probably have issued proceedings against Khan’s. However, they failed to establish a real and substantial chance of obtaining earlier leave to remain, indefinite leave, British nationality, or most of the claimed financial losses. The only claim with good prospects was for wasted expenditure on Khan’s inappropriate application, assessed at £2,750.
5. Applying Channon v Lindley Johnstone [2002] EWCA Civ 353 and Johnson v Gore Wood [2001] 2 WLR 72, damages for stress, distress or inconvenience were unavailable absent a particular feature of the retainer directed to protecting against such consequences or securing a particular beneficial result.
6. The claimants had not shown that they lost anything of value. Judgment was entered for the first claimant for nominal damages on the contractual claim. The tort claims of both claimants failed because no loss flowing from the admitted breach was proved. Consequential matters were adjourned for determination.

First-instance decision. No earlier appellate decision is stated in the judgment.