The Supreme Court recently considered the admissibility of evidence that would not have been available at the original trial, when determining the value of a lost claim in professional negligence proceedings. The Supreme Court unanimously ruled that a claimant had suffered a loss as a result of his solicitors' negligence, despite after-the-fact evidence suggesting that his underlying claim should not have succeeded. However, on examination of the specific facts of this case, the outcome is less surprising than it first appears.
Background
The claim was brought on behalf of a former miner, Thomas Watkins, who had developed Vibration White Finger ("VWF") as a result of his employment. A government scheme was set up to provide tariff-based compensation to miners suffering from VWF (the "Scheme"). Mr Watkins instructed Hugh James Ford Simey Solicitors ("the Solicitors") to act for him in relation to a claim under the Scheme. Under the Scheme, compensation for general and special damages was available, depending on the outcome of a defined medical assessment process, designed to enable very large numbers of similar claims to be resolved expeditiously.
Mr Watkins underwent a medical examination in accordance with the Scheme, which established that he was entitled to general damages and also satisfied the requirements for a special damages award. Mr Watkins therefore sought a special damages award, but was only offered a settlement for general damages of £9,478. The Solicitors reported this offer to him and explained the additional steps required to obtain special damages in the form of a standardised client letter that did not address the details of Mr Watkin's claim. Mr Watkins decided not to take the further steps required, and accepted the offer in full and final settlement in February 2003.
Mr Watkins subsequently brought proceedings against the Solicitors, alleging that he had lost the opportunity to pursue the special damages award as a result of the Solicitors' negligence. The judge ruled that the Solicitors' advice had been negligent on the basis that it was misleading and deficient, and that if Mr Watkins had received appropriate advice, he would have pursued the special damages claim. However, he also held that Mr Watkins had suffered no loss on the basis of a second medical report, dated 17 May 2013. This report, which was not carried out in accordance with the Scheme requirements, stated that Mr Watkins suffered from a low stage of VWF, which would have only entitled him to an award for general damages of £1,790, and no special damages. The judge accordingly dismissed the claim against the Solicitors, on the basis that a claim for special damages had no chance of success.
Court of Appeal decision
The Court of Appeal reversed the judge's decision. It determined that the judge had been wrong to conduct "a trial within a trial". The assessment had to be of the value of the lost claim, not a trial of the original cause at the time of the negligence claim. The measure of loss was the difference between what the claimant actually received by way of compensation and the amount he would have received without the negligence of the Solicitors. The judge had been wrong to determine these matters on the basis of the second medical report, as this evidence would not have been available at the time of Mr Watkins' claim under the Scheme. The Court of Appeal did acknowledge exceptions in the case of fraud or where the consequences of a supervening event were of such a significant or serious scale that public policy required a departure from normal principles in order to do justice between the parties. In its view, such circumstances did not exist in the present case.
Supreme Court judgment
The Solicitors were given permission to appeal to the Supreme Court on the sole question of whether the prospects of success of the underlying claim are to be judged as at the date when the underlying claim was lost, or at the date when damages are awarded in the professional negligence proceedings. The appeal proceeded on the assumption that the Solicitors' advice was negligent, and that if Mr Watkins had received non-negligent advice he would have pursued the special damages claim.
The Supreme Court determined that the evidence contained in the second medical report was not relevant to any issue before the court in the professional negligence proceedings. This was on the basis that the second medical report was not compliant with the Scheme, and therefore would never have been commissioned under the Scheme.
The Supreme Court concluded that as the second medical report was to be disregarded, Mr Watkins had succeeded in proving that he had lost a claim under the Scheme of some value as a result of the Solicitors' negligence. The Supreme Court has remitted the matter for assessment of the value of the loss of opportunity.
Comment
The Supreme Court avoided expressing a more general view on the admissibility of evidence acquired after the date of the lost claim. It determined that the second medical report was irrelevant, and so did not need to apply the principle that the Court should take account of all of the evidence available at the trial of the professional negligence proceedings when deciding which date on which to make the determination of loss (Charles v Hugh James Jones & Jenkins [2000] 1 WLR 1278, Dudarec v Andrews [2006] 1 WLR 3002, Whitehead v Searle [2009] 1 WLR 549, Perry v Raleys Solicitors [2019] 2 WLR 636).
At first glance the decision appears to violate the principle of compensatory damages, as Mr Watkins is apparently entitled to damages in professional negligence, in circumstances where later evidence shows that he had in fact been over-compensated for personal injury. However, the Supreme Court has justified this "uncovenanted windfall" on the basis that this was simply a consequence of the operation of the Scheme, the purpose of which was to enable very large numbers of similar claims to be presented, examined and resolved expeditiously. The Supreme Court specifically noted "it is important not to lose sight of the fact that Mr Watkins' original claim was a claim within the Scheme, and not one made in the course of conventional civil litigation".
The Supreme Court confirmed that in order to establish loss, the legal burden is on the claimant to prove that in losing the opportunity to pursue the claim he has lost something of value. It is only if the claimant can establish that his claim had a real and substantial, rather than merely a negligible prospect of success, that it is appropriate to evaluate those chances on a loss of a chance basis.
The question of whether after-the-fact evidence is relevant to determining loss of a chance in professional negligence claims will continue to be answered on a case-by-case basis, but this decision does show that it is important to consider such evidence in the context of the underlying claim, and whether, had it been available at the time, it would have been admissible in that underlying claim.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
