In recent years personal injury solicitors have been inundated with file requests and pre-action claims, alleging the negligent under-settlement of cases. While invariably some of these claims will be valid, often claimants have no real sense of grievance and are motivated only by the advertised promise of more money.
The solicitors behind these adverts will trawl through the original papers and look for any minor error upon which to base a claim, often without the intention to pursue it to proceedings but in the hope that the defendant and its insurers will settle early on a purely commercial basis, in recognition of the fact that such claims are typically uneconomic to defend. The Jackson reforms and other changes to the personal injury costs regime appear to have forced firms previously specialising in personal injury into professional negligence claims (where the costs recovery regime is far more generous and where limitation is less of a concern) against their competitors – a trend that has come to be known as "cannibalism".
A notable sub-category of cannibalism claims has been those made in relation to the settlement of vibration white finger (VWF) claims. VWF, which involves numbness and loss of manual dexterity in the fingers, is a condition typically caused by the use of vibratory tools. As such it was prevalent amongst miners working in the coal industry, to the extent that in 1999 the government established a scheme to handle the high volume of claims, with settlement of: (a) general damages; (b) special damages (in respect of the actual or notional cost of employing others to assist with domestic tasks such as DIY or gardening); and (c) solicitors' costs of bringing the claim, dealt with in accordance with fixed tariffs. In recent years there has been a proliferation of cannibalism-type claims against the solicitors who originally pursued and settled those claims, typically in relation to their advice on pursuing a special damages claim. Decisions such as Raley Solicitors v Barnaby and Procter v Raleys Solicitors have in the past placed a relatively onerous burden on solicitors in terms of the advice required to a claimant on a claim for special damages. The Court of Appeal's recent decision in Thomas v Hugh James Ford Simey Solicitors, another VWF under-settlement case, revisits this and looks more generally at the scope of a solicitor's duty in the context of commoditised, high volume and low cost litigation.
The Claimant was a former miner, who instructed the Defendant solicitors in March 2000 in relation to a VWF claim against his former employer (the Coal Board). In January 2001 the Coal Board offered to pay £10,373 plus costs in respect of general damages (no claim was advanced by the Claimant in respect of the Defendant's advice on general damages). The Defendant also sent the Claimant advice, by way of its standard form letter, about a possible claim for special damages. That advice stressed that "The amount of compensation payable in such cases can be significant". The Claimant subsequently attended a meeting with a fee earner at the Defendant to discuss the Coal Board's offer and a possible special damages claim. At that meeting:
- the Claimant confirmed that "he could not get anybody to indicate that he had problems with his hands in doing decorating because people were doing it as a favour to him" and that "In any event he was not too bothered at all" about bringing a special damages claim
- the Defendant did not provide a more specific valuation of the possible special damages claim and did not advise the Claimant of the possibility of an interim payment (the scheme at the time allowed for an interim payment of 80% of general damages pending resolution of a special damages claim).
The Claimant therefore accepted the Coal Board's offer, and the Defendant received £607 plus VAT in respect of its costs of the claim.
In 2008 the Claimant became aware, following an advert placed by Mellor Hargreaves his solicitors in the present claim, of the possibility of a claim against the Defendant. Proceedings were issued and the matter went to trial in January 2016. The trial judge gave judgment for the Defendant, finding there to have been no breach of duty in failing to provide a valuation of the Claimant's special damages claim or advising on the possibility of an interim payment, as it had already become apparent that the evidence required to pursue a special damages claim was not available (ie the Claimant could not supply corroborative witnesses).
The Claimant appealed, arguing that there had been a breach of duty in: (i) failing to provide an approximate valuation of the special damages claim or advise on a possible interim payment; and (ii) treating the Claimant's comments about his evidential difficulties as putting an end to a possible special damages claim. In his leading judgment Jackson LJ dismissed the appeal, finding there to have been no breach of duty and noting that "it is not the role of a solicitor to tempt the client by referring to large sums, once it is clear that supporting evidence for a claim is not available … if a client instructs his solicitor that he does not wish to pursue a particular head of claim and that he does not have evidence to support it, the solicitor is not necessarily under a duty to challenge that decision or to try and change the client's mind". The judgment recognises however that "issues such as this are fact-sensitive."
At first blush the decision does appear to be something of a watershed moment in cannibalism claims, which may serve to reign back the onerous obligations on solicitors carrying out low value high volume personal injury work imposed by recent decisions. However, it remains to be seen exactly how this will be treated by the Courts in future, given the specific facts of this case. The judgment distinguished this case from both Barnaby and Proctor, although the principle reason for doing so appears to have been the fact that in neither case did the solicitors meet their client in person to discuss matters.
Many VWF under-settlement cases involve a reluctance by claimants to pursue special damages claims; although often the reasons for doing so are not fully articulated, a concern that the more rigorous second medical examination required may show that the claimant is not in fact suffering from VWF seems likely to have been behind this. The judgment in Thomas sheds little light on the approach to be taken in those cases. However, Jackson LJ's final comments in his judgment are ominous for firms pursuing cannibalism claims: "The civil justice system exists to enable injured parties to recover compensation for genuine wrongs. It does not exist to service artificial claims stirred up by advertisements". The fact that the Claimant's solicitors in Thomas, Mellor Hargreaves, who were specialists in VWF under-settlement claims, have recently gone into administration following financial difficulties, does appear to suggest that the trend is on the wane.