Background

The Appellant was a firm of solicitors against whom the Respondent, on behalf of the late Mr Watkins’ estate, continued Mr Watkins’ claim in professional negligence following his death in 2014.

In February 1999, Mr Watkins instructed the Appellant in relation to a claim under a scheme set up by the Department for Trade and Industry (‘the Scheme’). This was to provide tariff-based compensation to miners who had been negligently exposed to excessive vibration in the course of their employment with the National Coal Board, and had developed a subtype of Hand and Arm Vibration Syndrome (‘HAVS’) as a result.

The Scheme provided for two main types of award broadly corresponding to awards for personal injury: general damages for pain, suffering, and loss of amenity; and special damages for handicap on the labour market and other financial losses. Provision was subsequently made for a further award under special damages for qualifying miners in respect of the need for assistance in performing domestic tasks (the ‘Services Award’).

Given the central objective of the Scheme to enable very large numbers of similar claims to be presented, examined and resolved expeditiously, it did not provide for entitlement to be determined through detailed investigation into any individual claim. Rather, it set up a process based to a large extent on the claimant’s self-reporting in a questionnaire. This would be supplemented by an examination and standardised testing by a doctor appointed under the Scheme. A standardised medical report, known as the ‘MAP1’, would then determine whether the claimant suffered HAVS and if so, the severity of the condition based on a standardised scale.

To determine entitlement to a Services Award, the Scheme relied on a presumption of causation once the severity of the condition reached a certain threshold, as found in the MAP1. If such threshold were met, the claimant would be required to undergo another medical examination, however, this would be limited to an assessment of whether the presumption of causation was rebutted through an investigation of any other medical conditions which might have prevented the claimant from performing the relevant domestic tasks.

Mr Watkins underwent the initial medical examination and interview process in January 2000. The findings in his MAP1 entitled him to both (i) an award of general damages; and (ii) a presumption in his favour that he qualified for a Services Award.

Mr Watkins initially sought a Services Award but his application was delayed because the claim handlers sought to deny the basic award. Following a challenge made by the Appellant on Mr Watkins’ behalf, on 12 February 2003, the claim handlers made an offer of £9,478 in full and final settlement of all Mr Watkin’s claims. This sum reflected the tariff award for general damages based on the findings of his MAP1 and did not, therefore, include any allowance for a Services Award.

The Appellant wrote to Mr Watkins on 18 February 2003, reporting the offer and advising him as to the procedure for making a special damages claim. Further advice was given by a telephone on 23 February, in which Mr Watkins finally instructed the Appellant he did not wish to proceed further. His reasons were that, in his view, he had other medical conditions which prevented him from carrying out the relevant domestic tasks provided for in the Services Award. He therefore was happy to proceed only on the basis of general damages, and that he would accept the offer.

Some years later, various public advertisements led Mr Watkins to suspect he had settled his claim at an undervalue. In January 2008, he therefore instructed fresh solicitors and issued the present proceedings against the Appellant on 11 August 2010. By the amended particulars of claim, it was contended that as a result of the Appellant’s negligence, Mr Watkins had lost the opportunity to bring a Services Claim under the Scheme or otherwise, which was quantified at £6,126.22 plus interest.

By October 2010, a vast number of cases alleging negligence against solicitors arising out of the Scheme had come before the courts. An Order was therefore made for a hearing to determine issues of expert evidence and disclosure, at which directions were made for expert evidence in the form of a report by a single joint expert. One Mr Tennant was accordingly appointed, and was expressly instructed not to apply the presumptions resulting from the MAP1 which applied under the Scheme when considering eligibility for the Services Award. This was to enable the Defendants to investigate a potential defence on causation; the issue of whether a claimant’s failure to pursue a services claim arose from negligent advice or from an inability to assert truthfully that he had lost the ability to perform those specified activities which would enable him to bring a claim for a Services Award.

A further Order was ultimately made that these directions were to apply all prospective and existing claims alleging negligence against solicitors in respect of the Scheme. Mr Watkins was therefore examined by Mr Tennant, who reported his findings in a report dated 17 May 2013. These were contrary to the MAP1 prepared under the Scheme in 2000; in Mr Tennant’s view, Mr Watkins’ condition was not as severe as the MAP1 had found.

The Courts Below

In the County Court, Mr Recorder Miller dismissed the claim in negligence against the Appellant. Although duty and causation had been made out, the judge was of the view that Mr Watkins had suffered no loss because, on Mr Tennant’s findings, Mr Watkins would only have been offered £1,790 for general damages. A Services Claim would not, therefore, have been possible, rendering the opportunity to pursue it of no real value.

The Court of Appeal (Underhill, Irwin and Singh LJJ) allowed the appeal on Mr Watkins’ behalf, holding that the trial judge had been wrong to conduct a trial within a trial to determine the value of Mr Watkins’s claim under the Scheme and to determine the severity of his disability. It further held that the judge had been wrong to determine these matters on the basis of the evidence of Mr Tennant, since that evidence would not have been available at the time of Mr Watkins’s notional Services Claim under the Scheme. The Court of Appeal considered there were no exceptional circumstances, such as fraud, nor serious consequences in this case to justify consideration of after-coming evidence as a matter of public policy.

The Supreme CourtThe judge’s findings on duty and causation not being challenged, Lord Lloyd-Jones (with whom the other members of the Court agreed) began by clarifying that, in order to succeed, there was a legal burden on the Respondent to establish loss. This required the Respondent to prove that, in losing the opportunity to pursue the Services claim, Mr Watkins lost something of value; i.e., that the claim had a real and substantial, rather than merely negligible prospect of success. Only if this could be established would it be appropriate to evaluate those chances on a ‘loss of chance’ basis.

Although the submissions before the court focussed on the issue of admissibility of Mr Tennant’s report as after-coming evidence, Lord Lloyd-Jones did not consider Mr Tennant’s report relevant to any issue before the court in the negligence action. The lost opportunity was one which arose within the specific confines of the Scheme, and the real issue was, therefore, whether it was of more than negligible value within that context.

Lord Lloyd-Jones considered the court must assume the Scheme would have operated as intended: Mr Watkins would have been entitled to a presumption arising from his MAP1 report, and any further medical examination would have been limited to assessing whether that presumption was rebutted by other potential causes. What the Appellant was seeking to do by adducing Mr Tennant’s report was add to the counterfactual factors which would never have been taken into account. It was important to remember that the Scheme was expressly designed not to require a detailed medical assessment of the level of disability of every claimant for a Services Award but to rely on presumptions based upon the MAP1 reports, which, furthermore, Mr Tennant was specifically instructed not to apply.

The appeal was accordingly dismissed and the case remitted for assessment of the value of the loss of the chance to pursue the Services Award.

Commentary

This case is an interesting reminder of the care which must be taken when interpreting and applying the authorities on adducing post-acquired evidence when quantifying loss in a professional negligence claim.

On the one hand, the Appellant’s position that the professional negligence claim should reflect just compensation is, prima facie, intuitive. This is all the more so, given that there is authority, which was cited by the trial judge, for the proposition that solicitors should not be liable for events which, “on the full facts amounts to an uncovenanted windfall.”

On the other hand, it is clear that, notwithstanding a clear windfall in the present case, it differed in that such windfall was a, perhaps necessary, result of what was described as a ‘rough and ready’ scheme designed first and foremost to administer a large number of similar claims for compensation where liability had been established. Although not expressly stated, it is fair to assume that the implied negative policy of the scheme was that any honest windfall of several thousands of pounds in any individual case by use of self-reporting and presumptions would nevertheless be justified against a much greater savings to be made by avoiding detailed individual examinations for each and every claim. In such a case, the policy considerations involved in the question of whether post-acquired evidence should be admissible to strip a claimant of an uncovenanted windfall clearly are subjected to a different balancing exercise.

Practitioners should bear such subtle distinctions in mind when making judgments as to whether the consequences of a supervening event between the date the claim was lost and when damages are assessed are of such serious scale that “public policy require[s] a departure from normal principles in order to do justice between the parties.”

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