The first reported professional negligence case arising out of under-settlements for former miners in the government's vibration white finger ("VWF") compensation scheme has recently come to trial. Whilst the decision in Barnaby v Raleys Solicitors will be encouraging news for claimants, those advising defendants will need to consider the implications of the decision and the potential for this to increase the settlement value of existing claims.

The Claimant, a former miner at various collieries in Yorkshire, had been represented by the Defendant firm of solicitors in 2002 when he accepted a settlement for his claims for general damages and handicap on the labour market. At the time of settlement, however, the Claimant abandoned a third head of loss in the form of a "services" claim – relating to tasks of gardening, decorating, etc – so as to achieve a quick settlement on the basis that he needed the money.

The Claimant later brought proceedings against the Defendant firm for the loss of the chance to recover that head of loss, which he alleged he should have been advised to pursue. The Defendant firm sought to argue, as a matter of causation, that the Claimant was in fact competently advised but would have failed in that aspect of his claim on the basis that he was not in fact suffering from VWF at the relevant time.

In reaching a decision, HHJ Gosnell in Leeds County Court said: “This claim is not a re-run of the original claim although it appears the Defendants would like it to be.”  Whilst he agreed that the Claimant was a poor historian and an unimpressive witness, the point was that the government compensation scheme was not rigorous and the claimant had passed the first medical assessment in 2000 (at the time of the underlying events) to show some level of VWF. On that basis, and given that the scheme was designed to process quickly and cheaply huge volumes of these claims (and so the claims were not scrutinized carefully) the Claimant would have had a good chance of succeeding if a services claim had been pursued.

HHJ Gosnell assessed this chance at 75% - and, as a result, the Claimant was awarded 75% of the sum he would have been granted under the scheme if his services claim had succeeded in the professional negligence claim. The decision will be of interest to defendant firms and their professional indemnity insurers, who will need to ensure that they distinguish between evidence available at the relevant time when they had been instructed to deal with the underlying claim and that which has subsequently come to light.

Barnaby v Raleys Solicitors [2013] EW Misc 9 (CC):  Click here to read further.