Hanbury & Anor v Hugh James Solicitors (a firm)

In a professional negligence claim concerning a lost underlying action, the claimant must show that the negligence caused the loss of an opportunity with a real and substantial prospect of success. The court must then value the lost chance, rather than conduct a trial within a trial or decide the underlying claim on an all-or-nothing basis. The starting point is the full value of the underlying claim, discounted for the prospects of success and relevant litigation risks. A likely settlement may be considered, but its settlement value should not be subjected to duplicative discounts for the same risks. A further discount for the chance of settlement may be appropriate where uncertainty remains.

The claimants brought a professional negligence claim against solicitors instructed to pursue an asbestos-related fatal disease action following Mr Hanbury's death. The solicitors conceded that they had negligently failed to provide the medical expert with important post-mortem and mineral fibre evidence and failed to recognise that the expert had not considered it.

The remaining issue was causation and valuation. The claimants contended that, with proper medical evidence, the underlying action would have proceeded and produced damages by settlement or judgment. The defendant argued that the underlying claim was not viable and that any loss should be heavily discounted for successive litigation hurdles. The central question was the value of the lost opportunity.

1. Loss of chance. The claimants proved that, but for the admitted breach, the underlying asbestos claim had a real and substantial prospect of success. The court therefore had to assess the lost chance, not determine the hypothetical trial outcome on an all-or-nothing basis. The approach in Mount v Barker Austin (A Firm) [1998] P.N.L.R. 493, as summarised in Edwards v Hugh James Ford Simey (A Firm) [2018] EWCA Civ 1299, was adopted.
2. Assessment methodology. The court rejected the proposed approach of starting with a settlement figure and applying multiple discounts for counsel's advice, engineering evidence and settlement. The starting point was the full value of the underlying claim, followed by appropriate discounts for contributory negligence, apportionment risk and the chance of settlement. The reasoning in Perry v Raleys Solicitors [2019] UKSC 5 supported this approach.
3. The underlying claim had strong medical causation evidence and good prospects against some or all live defendants. Apportionment created litigation risk, but it was unlikely to defeat the claim altogether. Settlement was highly likely, although a further discount remained appropriate because the precise settlement outcome was uncertain.
4. The full value was assessed at £217,256. A 20% deduction for contributory negligence and a further 25% deduction for apportionment risk produced £130,354. Applying a further 20% settlement discount resulted in damages of £104,283 before interest.
5. Judgment was entered for the claimants in that sum, with interest to be assessed from 1 January 2014. The parties were invited to agree interest and consequential orders.

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