In a solicitors’ negligence claim based on a previous case which was lost or under-settled it is not unusual to see the complaint that one party is seeking to re-litigate the original claim.  However, the complaint is normally one levelled by the defendant against the claimant.  The correct approach is to assess the “value” of the lost chance of the claim succeeding by asking what the prospects of its success would have been. 

Some claimants have difficulty in getting their heads around this (or choose to ignore it) and insist on trying to re-fight the original case and then claiming the full amount of damages they think they would have obtained if the original case had succeeded. 

However, the situation seems to have been reversed in the first reported case that has just come to trial in the solicitors’ negligence litigation arising out of under-settlements for former miners in the government’s VWF (vibration white finger) compensation scheme.  The claimant had been represented in 2002 by Raleys Solicitors when he accepted a settlement for his claims for general damages and handicap on the labour market, but in so doing he abandoned his “services” claim relating to tasks of gardening, DIY, decorating etc.  He sued Raleys for the loss of the chance to recover that aspect which he says he should have been advised to pursue. 

However, the defendant firm argued that, as a matter of causation, he would have failed in that aspect of his claim if it had been pursued in 2002.  The defendant argued at trial that its former client in fact never had been suffering from VWF, that he had presented an untrue claim and that more recent evidence – including his dismal performance in the witness box – showed this. 

But the Judge said: “This claim is not a re-run of the original claim although it appears the Defendants would like it to be.”  He agreed that the claimant was a very unimpressive witness and a poor historian.  However, the point was that the government compensation scheme was not rigorous and the claimant had passed the first medical assessment under it in 2000 to show some level of VWF.  The scheme was designed to process huge volumes of these claims quickly and cheaply, and the price which the government paid was that the claims were not scrutinized carefully, so the claimant would have had a good chance of succeeding if a services claim had been pursued.  The Judge assessed this chance at 75%, so in the professional negligence claim the claimant was awarded 75% of the sum he would have been granted under the scheme if his services claim had succeeded.

See: Barnaby v Raleys Solicitors [2013] EW Misc 9 (CC), decision of HHJ Gosnell in Leeds County Court – with leading and junior counsel on each side.