In Perry v Raleys Solicitors1, the Supreme Court has set out the correct approach in assessing loss of chance in professional negligence claims.
Mr Frank Perry, a retired miner, brought a claim against his former solicitors for the loss of opportunity to claim domestic assistance under a compensation scheme (known as a Services Award) following a condition he sustained in the course of his employment. Mr Perry alleged that his former solicitors failed to advise him in relation to the Services Award within the available timeframe and that he had therefore lost the chance to bring a claim.
At first instance, the former solicitors admitted that they had breached a duty of care in failing to properly advise Mr Perry, but argued that their failure had not caused him any loss. The trial judge heard evidence from Mr Perry and his family, and from experts concerning his condition. The trial judge held that, had Mr Perry been properly advised, he would not have made an honest Services Award claim, as he would have failed to establish an inability to carry the relevant domestic tasks.
Court of Appeal decision
On appeal, the Court of Appeal held that the trial judge had erred in conducting a “trial within a trial" as to whether Mr Perry would have brought an honest Services Award claim, and by imposing a burden upon Mr Perry to prove this fact on the balance of probabilities (which the Court of Appeal considered was contrary to authority on causation in professional negligence cases). The Court of Appeal also held that the trial judge erred in analysing the evidence in support of Mr Perry’s claim. As a result, the decision of the trial judge was reversed.
Supreme Court decision
The Supreme Court, in overturning the Court of Appeal’s decision, unanimously held that the trial judge adopted the correct approach2 which required Mr Perry to prove, on balance, that he would have made an honest Services Award claim. The Supreme Court also held that the trial judge was correct in conducting a detailed examination as to whether Mr Perry would have required domestic assistance as a result of his condition (and whether he therefore could have honestly made a claim).
The Supreme Court noted that if Mr Perry could establish that, on balance, he would have made an honest Services Award claim, then the question of whether he would succeed at trial or settle the claim was to be assessed on a loss of chance basis.
The Supreme Court also held that the Court of Appeal did not satisfy the “very stringent requirements" 3 to interfere with the trial judge’s fact-finding as, unlike the trial judge, it did not have the benefit of hearing from and assessing witnesses’ credibility.
This is the second recent high profile judgment dealing with causation in claims against professionals and when loss of a chance is the relevant test, as to which, see our briefing on the case of Dalamd v Butterworth Spengler here.