The Court of Appeal in Graham Thomas v Hugh James Ford Simey Solicitors [2017] (judgment here) has considered a professional negligence claim against a solicitor who dealt with a case of Vibration White Finger (VWF) in the year 1999. Lord Justice Jackson heard the matter and found that the steps taken by the claimant's solicitor in advising on the settlement under the government claims handling arrangement in 1999 was sufficient.

The facts of the claim were that the claimant had been employed as a coal miner from 1974 to 1991. The claimant had previously brought and settled a claim against his employer for loss of a finger. During his employment the claimant used vibratory equipment and pursuant to a scheme for handling miners’ claims set up by the Department of Trade and Industry, the claimant settled his claim with and on the advice of his solicitors. The matter in dispute was that the claimant did not bring a special damages claim, despite the fact the claimant alleged that he required assistance with decorating, DIY, gardening, car washing and car maintenance.

A contemporaneous attendance note from the acting solicitor recorded that the claimant told her that he would not be able to get evidence from anybody to indicate that they were assisting him as they were doing so as a favour and for ‘cash in hand’. The claimant also expressly stated he was not too bothered by the special damages claim as he wanted the matter resolving quickly.

Seven years later, in response to an advert by Mellor Hargreaves solicitors the claimant brought a claim for professional negligence against his solicitor on the basis that they did not sufficiently address his claim for special damages. It was alleged that they should have done more to impress upon him the need to bring a special damages claim.

At first instance the judge found that the defendant-solicitor had acted properly, in accordance with their retainer, in accordance with their professional duties and had presented the claimant with sufficient advice to decide whether to proceed with the special damages claim. Mr Recorder Cameron, sitting in Leeds made a number of findings of fact including that the claimant had been articulate and intelligent, that the defendant had not provided a valuation of the claimant's possible services claims, nor did they inform the claimant of the availability of interim payments for pursuing services claims. However, they had made clear that there was the possibility of bringing a special damages claim and that this had been discussed, as was set out in the attendance note.

At first instance the court found that the failure to provide a valuation was not a breach of duty and that the assertion that special damages can be “significant” was sufficient.

On appeal the claimant alleged that the defendant had been in breach of its duty in three regards:

  1. the defendant had failed to provide a valuation for a claim for services;

  2. the defendant had failed to notify the claimant of the possibility of interim payments for special damages; and finally

  3. the defendant had treated what the claimant said about the cash in hand payments and inability to get evidence on his services claim as determinative of the claim and took the view that it saw an end to the services claim.

The case was appealed and appeared before Lord Justice Jackson, who held that the appeal centred on the issue of the claimant's autonomy. The claimant accepted that he had been advised on the issue of special damages both in writing and in person. The court also took note of the fact that the claimant was told the special damages could be significant and despite that, the claimant had expressly stated that he would not be able to get evidence in support of that claim. He went so far as to tell the defendant he was not bothered about that.

Much of the appeal turned on the assertion that the claimant made, that the defendant should have not accepted the claimant's position at face value and should have probed further in order to clarify and potentially even change the claimant's mind.

Ultimately this found no fertile ground with Jackson. The appeal was dismissed and Jackson stated that “if a claimant chooses to not pursue a claim for special damages to a head of loss there is no duty on the part of a solicitor to attempt to prise open that head of loss.”

What this means for you

While this claim primarily relates to professional indemnity, it equally reflects the fact that the court was reluctant to criticise a solicitor for not challenging the decision of a client or pressing them to bring heads of claim against their wishes or without the proper evidence. This is a subtle point, but where claimant solicitors bring unsubstantiated heads of loss, the argument is unlikely to hold water that they had no choice, in order to avoid a negligence claim. Instead the court had lauded a solicitor who gave a claimant the options and sensibly did not pursue a weak head of loss or apply pressure where the claimant did not wish to pursue the point.