Rachael Coote v Augustus Ullstein QC

In a professional-negligence claim concerning a lost underlying action, causation and valuation remain distinct. The claimant must prove on the balance of probabilities what she would have done had competent advice been given. Questions depending on the acts of third parties, including a court or funder, are assessed as a loss of chance. After-coming evidence is admissible where it could have been available at the notional trial and is relevant to the assessment. On a summary-judgment application the court must decide whether the claim has a realistic, rather than fanciful, prospect of success without conducting a mini-trial. The claim was nevertheless summarily dismissed because the underlying vaccine claim had no real prospect of success.

The claimant, acting through her litigation friend, sued her former leading counsel and solicitors for professional negligence. She alleged that inaccurate advice about the limitation period under the Consumer Protection Act 1987 caused her claim against the vaccine manufacturer to be issued out of time and discontinued. She claimed damages for the value of the lost underlying claim.

The defendants applied for summary judgment under CPR 24.2 and alternatively sought strike-out under CPR 3.4. The central issue was whether the claimant had a real prospect of proving that the underlying claim had a real and substantial prospect of success, including on medical causation and continued legal-aid funding.

1. Applications allowed. The defendants obtained summary judgment because the claimant had no real prospect of establishing that she had lost a claim of value. The alternative strike-out ground did not need to be determined.
2. Under the approach explained in Kitchen v Royal Air Force Association [1958] 1 WLR 575, Allied Maples Group Ltd v Simmons & Simmons [1995] WLR 1602 and Perry v Raleys Solicitors [2019] UKSC 5, the claimant must first prove on the balance of probabilities what she would have done if competently advised. The value of the lost opportunity is then assessed by reference to the chances of what third parties would have done. The claimant could readily establish that she would have issued and pursued the underlying proceedings.
3. The need for legal aid did not convert the Legal Services Commission’s hypothetical conduct into a matter for proof on the balance of probabilities. Its likely decision whether to continue funding was part of the broad assessment of the lost chance, although it materially reduced the prospects of the underlying claim.
4. On summary judgment, the court applied the guidance in Easyair Ltd v Opal Telcom Ltd [2009] EWHC 339 (Ch). It considered the evidence in the round and did not conduct a trial. Evidence from Dr Jarosz and Professor Walker was admissible as after-coming evidence because it was the kind of evidence the manufacturer would have deployed and which could have been available at the notional 2009 trial. The authorities, including Dudarec v Andrews [2006] EWCA Civ 256, did not restrict the court to evidence actually available at that date.
5. The underlying causation case depended principally on Dr Kinsbourne’s evidence. The judge considered that evidence unsupported and unable to withstand scrutiny, particularly in light of the absence of meningitis or encephalopathy, the medical imaging, and alternative explanations including Dravet syndrome and subependymal heterotopia. The prospect of success was nil or virtually nil and well below the level required to constitute a real and substantial chance.
6. The court considered the principles in Mount v Barker Austin [1998] PNLR 493, including the evidential burden on negligent solicitors and a generous assessment where appropriate, but found that the claimant had received mixed rather than consistently bullish advice. The claim was therefore dismissed by summary judgment. The causation pleading was inadequate, but amendment rather than strike-out would have been the proportionate response.