Wright v Troy Lucas (a firm) & Anor

A person who undertakes legal work for reward, and holds himself out as possessing the skill of a competent legal professional, owes the client the corresponding contractual and tortious duty of reasonable skill and care. The duty is not avoided because the person is unqualified or acts in a role described as that of a McKenzie Friend.

In a professional-negligence claim based on lost litigation, the claimant must prove on the balance of probabilities what he would have done on receiving competent advice. The value of the resulting litigation outcome may then be assessed as a loss of chance. The claimant’s own culpable conduct may reduce the percentage value of the lost chance, but does not necessarily eliminate it.

The claimant pursued a clinical-negligence claim against Basildon and Thurrock University Hospitals NHS Foundation Trust. The defendants, an unregulated firm and its principal, agreed to provide assistance and undertook extensive legal work, including advising on strategy, drafting pleadings, instructing an expert and conducting settlement discussions.

The underlying claim was materially weakened by defective pleadings, unsupported heads of loss, failures concerning expert evidence and inadequate settlement advice. Parts of the claim were struck out, and judgment was later entered against the claimant on the remaining aspects. He accepted a Part 36 offer of £20,000 while facing substantial costs.

The claimant sued the defendants in contract and negligence. The issues included limitation, the defendants’ legal status, the existence and terms of a contract, the applicable duty of care, breach, causation, loss of chance and the effect of the claimant’s own conduct.

1. Limitation. The claim was not statute-barred. Under sections 2, 5 and 14A of the Limitation Act 1980, the relevant date depended on when damage occurred or when the claimant acquired the relevant knowledge. On either the approach in Hopkins v MacKenzie [1995] PIQR 43 CA or that in Khan v Falvey [2002] EWCA Civ 400, time began sufficiently late for the claim to be in time (para [78]).
2. Status and duty. The defendants did more than provide paid McKenzie Friend assistance. They advised on litigation strategy, drafted court documents, instructed an expert, represented the claimant in correspondence and conducted settlement discussions. Having held themselves out as competent to provide legal services, they owed the standard of care associated with that assumed expertise. The duty was not dependent on an expectation of payment, applying by analogy Chaudhry v Prabhakar [1989] 1 WLR 29 CA and Freeman v Marshall & Co [1966] EGD 695 (paras [79]-[82]).
3. Contract and breach. The letter of 1 December 2008 formed the contract. The defendants failed to give competent advice about funding, their limitations, pleadings, evidence, applications, settlement and counsel. Their conduct breached both the contractual obligations and the duty of care (paras [80], [83]-[84]).
4. Loss of chance. Applying the approach in Perry v Raleys Solicitors [2019] UKSC 5, what the claimant himself would have done had he received competent advice had to be proved on the balance of probabilities; the outcome dependent on others was assessed as a lost chance (para [86]). The claimant would probably have disclosed his earnings, abandoned unsupported claims and corrected the case, although his credibility would have remained an issue. His culpability therefore reduced, but did not extinguish, the value of the lost chance (paras [88], [93]).
5. The court assessed the value of the lost chance and applied a 35% deduction for litigation uncertainty, causation disputes, credibility concerns and likely exaggeration. Judgment was therefore given for the claimant in the assessed sum, with the precise quantum determined in accordance with the assessment at paras [94]-[97].