Taha el Basyouni v Anthony Gold Solicitors

On a summary judgment application, a professional negligence claim must have a realistic prospect of establishing both breach and causation. The court should not conduct a mini-trial, but must assess the evidence available and evidence reasonably expected at trial.

“But-for” causation is ordinarily necessary but not sufficient. The court must also consider the scope of duty, foreseeability and remoteness. Where loss depends on a third party’s hypothetical decision, the claimant must show a real and substantial chance of the relevant action, identified here as at least a 10 per cent chance.

Summary judgment is appropriate where the evidence provides no realistic basis for causation and any possible liability would yield nominal damages only.

The claimant brought a professional negligence and breach of contract claim against his former solicitors concerning the attempted purchase of a property. The claim alleged that the solicitors wrongly described a £70,000 secured loan as a gift to the mortgage lender, delayed correcting that information, and delayed returning the funds after anti-money laundering concerns arose.

The lender subsequently rekeyed the mortgage application and withdrew its offer. The seller rescinded the contract. The defendant applied to strike out the claim or obtain summary judgment on inadequate particulars, breach, causation and recoverability of loss. The application was determined principally on causation.

1. Summary judgment granted. The defendant obtained summary judgment because the claimant had no realistic prospect of establishing that any breach caused recoverable loss.

2. The court applied the summary judgment approach in Easyair Ltd (t/a Openair) v Opal Telecom Ltd [2009] EWHC 339 Ch. The claim had to be more than merely arguable, but the court was not to conduct a mini-trial. It had to consider both the evidence before it and evidence reasonably expected at trial.

3. Assuming breach, the ordinary “but-for” test remained applicable. The claimant had identified no sound policy reason for departing from it. Following the guidance in Kuwait Airways Corporation v Iraqi Airways Corporation (Nos 4 and 5) [2002] 2 AC 883 and Galoo v Bright Graeme Murray [1995] 1 All ER 16, “but-for” causation was necessary but not sufficient; common sense and the nature of the duty and loss also had to be considered. Scope of duty, foreseeability and remoteness arose only if factual causation was established, consistently with Manchester Building Society v Grant Thornton UK LLP [2022] AC 783.

4. The evidence showed that the lender’s reconsideration followed disclosure of the secured loan and further documentation, not merely the earlier reference to a gift. There was no realistic evidential basis for concluding that the lender would have maintained its offer had the loan been disclosed accurately from the outset.

5. The alternative loss-of-chance analysis also failed. Under PCP Capital Partners LLP & Anor v Barclays Bank Plc [2021] EWHC 307 (Comm), a claimant relying on a third party’s hypothetical action had to show a real and substantial chance, assessed by the court as at least a 10 per cent chance. That threshold was not met.

6. The alleged delay in returning the £70,000 could not cause additional loss because the contractual interest liability had accrued immediately. Any liability would therefore be limited to nominal damages, making continuation of the claim inappropriate.