Edwards on behalf of the estate of the late Thomas Arthur Watkins v Hugh James Ford Simey Solicitors

A claimant alleging that negligent professional advice caused the loss of an opportunity must prove that the lost claim had a real and substantial, rather than negligible, prospect of success. Its value must then be assessed by constructing the counterfactual which would have arisen without the negligence.

Where the lost claim arose under a compensation scheme, that counterfactual must reflect the scheme’s actual rules and procedures. Evidence from a medical investigation which the scheme would neither have required nor permitted cannot be used to eliminate the lost claim. Once more than negligible value is established, the court must assess damages on a loss-of-opportunity basis.

A former miner instructed the appellant solicitors to pursue compensation for vibration white finger under a tariff-based government scheme. A medical assessment gave him stagings which both supported a general damages award and created a rebuttable presumption of entitlement to a services award. After allegedly negligent advice, he accepted £9,478 in full settlement without pursuing that award.

His estate brought professional negligence proceedings for the lost opportunity. The County Court found negligence and causation but dismissed the claim because later medical evidence appeared to show that the original claim had no value. The Court of Appeal allowed the estate’s appeal: [2018] EWCA Civ 1299.

The Supreme Court considered whether that later evidence could properly be used to value the opportunity lost under the scheme.

1. Appeal dismissed unanimously. Lord Lloyd-Jones, with whom Lady Hale, Lord Reed, Lord Sales and Lord Thomas agreed, held that the former miner had lost a claim of some value. The matter was remitted for assessment of the value of the lost opportunity.

2. The estate bore the legal burden of proving loss. It had to establish that the opportunity to pursue the services claim possessed a real and substantial, rather than merely negligible, prospect of success. Only after that threshold was crossed should the court make a realistic assessment of the claimant’s prospects and value the loss on a loss-of-opportunity basis.

3. The counterfactual had to reflect the claim which would actually have proceeded under the compensation scheme. The scheme deliberately used presumptions derived from the first medical assessment instead of individually reassessing disability. The second assessment was confined to co-morbidity. The scheme gave its administrators no means of reopening the established diagnosis, staging or general damages award.

4. The later expert report was therefore irrelevant to loss insofar as it reassessed diagnosis, staging and actual disability. No equivalent report would have been commissioned under the scheme. Introducing it into the counterfactual would impermissibly alter the procedure by which the lost claim would have been determined. The court did not need to decide the wider question of when later-acquired evidence may generally be admitted in professional negligence proceedings.

5. The report might have been relevant to whether the claimant would honestly have pursued the services claim. That causation issue had already been decided in the estate’s favour and was not challenged on appeal. Moreover, the report’s assessment of co-morbidity on the scheme’s required assumptions indicated that the services claim had a real prospect of success.

6. The County Court had consequently erred by treating the later report as showing that the claim could have been resolved only against the claimant. The scheme’s unusual and deliberately broad operation governed the claimant’s entitlement, rather than the result which conventional personal injury litigation might have produced.

1. United Kingdom Supreme Court: Dismissed the solicitors’ appeal unanimously and remitted the claim for assessment of the value of the lost opportunity: [2019] UKSC 54.
2. Court of Appeal: Allowed the estate’s appeal, holding that the trial judge had wrongly conducted a trial within a trial and relied on later evidence which would not have existed under the scheme: [2018] EWCA Civ 1299; [2018] PNLR 30.
3. County Court at Leeds: Found negligent advice and causation but dismissed the claim because the later medical evidence was treated as establishing that the lost services claim had no value.