Perry v Raleys Solicitors

In a professional negligence claim, the claimant must prove on the balance of probabilities what they would have done if competently advised. This includes proving that they would have taken any essential initiating step and, where the lost opportunity was a legal claim, that they would have made an honest claim.

Matters depending on what third parties would have done are assessed as a loss of a chance. The claimant’s own conduct produces an all-or-nothing result and may be examined at a full adversarial trial, even where the relevant facts overlap with issues in the lost claim. Appellate courts may reverse factual findings only where there was no supporting evidence or no reasonable judge could have reached them.

A retired miner retained solicitors to pursue compensation for vibration white finger. The solicitors negligently failed to advise him about a possible Services Award under the compensation scheme, and he settled for general damages alone. In subsequent professional negligence proceedings, the trial judge found that the miner had not proved that he could honestly have claimed a Services Award because his condition had not caused the necessary disability.

The Court of Appeal allowed the miner’s appeal in [2017] EWCA Civ 314. It held that the judge had wrongly conducted a trial within a trial, imposed an incorrect burden of proof and made unsustainable factual findings. It awarded damages by reference to the judge’s alternative assessment.

The solicitors appealed. The central issues were whether the claimant had to prove, on the balance of probabilities, that he would have brought an honest underlying claim and whether the Court of Appeal was entitled to overturn the trial judge’s factual findings.

1. The appeal was allowed unanimously. Lord Briggs delivered the judgment, with which Lady Hale, Lord Wilson, Lord Hodge and Lord Lloyd-Jones agreed. The trial judge’s order dismissing the professional negligence claim was restored.

2. The dividing line established by Allied Maples Group Ltd v Simmons & Simmons (a firm) [1995] 1 WLR 1602 applied. A claimant must prove on the balance of probabilities what the claimant would have done after receiving competent advice. To the extent that the beneficial counterfactual depends on what another person would have done, the court evaluates the lost chance.

3. The claimant therefore had to prove that, if properly advised, he would have made a timely and honest claim for a Services Award. A dishonest claim has no compensable value. The reasoning in Kitchen v Royal Air Force Association [1958] 1 WLR 563, excluding recovery for a claim having only nuisance value, applied with greater force to a dishonest claim.

4. Proof of the claimant’s own hypothetical conduct produces an all-or-nothing result. If the claimant proves that conduct on the balance of probabilities, no discount is made merely because there remained a substantial possibility that the claimant would not have acted. If the claimant fails, damages cannot be awarded for a chance below 50% that the claimant might have acted.

5. There is no general prohibition against investigating, with the full rigour of an adversarial trial, facts relevant to whether the claimant would have taken the necessary initiating step. The general disapproval of a trial within a trial applies to issues whose resolution depends on valuing a lost chance. It does not prevent a proper trial of facts which the claimant must prove on the balance of probabilities, even where those facts would also have arisen in the underlying claim.

6. The trial judge had applied the correct legal test. Read as a whole, his judgment required proof that the claimant would have brought an honest claim, not proof that the underlying claim would certainly have succeeded. His adverse credibility findings were supported by the medical records, photographic evidence and cross-examination.

7. Applying Henderson v Foxworth Investments Ltd [2014] UKSC 41, appellate intervention required either an absence of evidence supporting the challenged finding or a finding which no reasonable judge could have reached. Neither condition was satisfied. The trial judge was entitled to weigh the claimant’s lack of credibility against expert evidence and was not bound to prefer an expert opinion substantially based on information supplied by the claimant.

1. United Kingdom Supreme Court: Allowed the solicitors’ appeal unanimously and restored the trial judge’s order dismissing the claim: [2019] UKSC 5.

2. Court of Appeal: Allowed the claimant’s appeal, reversed the trial judge on causation and awarded £14,556.15 plus interest and additional amounts: [2017] EWCA Civ 314.

3. Trial judge: Judge Saffman dismissed the professional negligence claim because the claimant had not proved that the negligent advice caused any loss. No citation is stated in the judgment.