Perry v Raleys Solicitors

The claimant, a retired miner suffering from Hand-Arm Vibration Syndrome (HAVS)/Vibration White Finger, sued his solicitors for professional negligence alleging that negligent advice induced him to settle his underlying claim and so deprived him of a Services Award under a tariff scheme. The trial judge found the claimant not credible and dismissed the negligence claim. The Court of Appeal reversed on causation and remitted to quantum. The Supreme Court allowed the appeal, restoring the trial judge's findings. The central question was whether the claimant bore the burden, on the balance of probabilities, to prove he would have made an honest claim for the Services Award, and the proper scope of 'trial within a trial' enquiries in professional negligence claims.

1. Disposition. The appeal is allowed and the trial judge's order is restored: the Court of Appeal was wrong to overturn the judge's findings of fact and to treat his approach to causation as erroneous (see paras 41, 47, 67).
2. Burden and standard of proof. Where the question whether a claimant would have taken an essential step himself (for example, brought an underlying claim) is decisive, that question is one the claimant must prove on the balance of probabilities; issues about what third parties would have done are assessed as loss of chance (paras 20-24, 41).
3. Division of issues (Allied Maples principle). The court reaffirmed the Allied Maples distinction: matters as to what the claimant would have done require proof on the balance of probabilities, whereas contingencies dependent on others are for valuation as a lost chance (paras 21, 22, 31-37).
4. Dishonesty excluded. A claimant cannot recover for a lost opportunity to bring a dishonest claim; honesty is a pre-condition of recoverable loss (paras 25-29).
5. Appropriateness of a 'trial within a trial'. A trial of issues that would have arisen in the lost claim is permissible where those issues are ones the claimant must establish on the balance of probabilities; there is no general prohibition on forensic inquiry simply because the same matters might have been litigated in the underlying claim (paras 19, 24, 31, 37, 41).
6. Evaluation of factual findings. Appellate interference with trial findings of credibility requires either absence of evidence to support the findings or that no reasonable judge could have reached them; the Supreme Court concluded that the trial judge's adverse credibility findings and his weighing of medical and lay evidence were within the range of reasonable conclusions (paras 49-66, 67).
7. Practical application to tariff claims. The court noted the lighter, administrative nature of the Scheme’s procedures for Services Awards and that this context informed the trial judge’s approach to assessing whether the claimant would have honestly pursued a Services Award (paras 3-5, 43).
8. Orders. The Court restored the trial judge’s dismissal of the negligence claim and his factual findings; costs and any consequential orders follow the trial judge’s determination (paras 67).

• Court of Appeal: [2017] EWCA Civ 314 – reversed the trial judge on causation and remitted for assessment of damages (as described in the judgment under appeal).
• Supreme Court: [2019] UKSC 5 – allowed the appeal and restored the trial judge's decision dismissing the negligence claim.