Court of Appeal rules on assessing damages in a professional negligence case
It was alleged that the defendant firm of solicitors had negligently advised the original claimant in this action to abandon an incremental claim under a scheme to compensate former miners suffering from a condition known as vibration white finger. The key issue in this case was whether the recorder had erred in taking into account evidence which had not (and could not have) been available at the time of the settlement in this case when assessing the claimant's loss (namely, a 2013 report of a jointly instructed expert who had assessed the severity of the deceased's condition as being lower than that reported in a medical assessment process report produced in 2003 (the year in which the claim settled)).
The Court of Appeal started from the basic principle that where negligence by lawyers has prevented a claim being brought (or has led to an under-settlement), the measure of loss is the difference between what the claimant got and what it would have got, absent the negligence. If the value of the original lost claim cannot be assessed as hopeless or cast-iron, the court must assess a percentage prospect of success as applied to what would have been recovered if the original claim had been recovered in full. The Court of Appeal pointed out that "the court is seeking to establish what was lost by the claimant, as at the date, often the notional date, of the original trial or settlement".
Where "relevant after-coming evidence" would and should have been available at the notional trial date, had the litigation been competently conducted, it can be taken into account when assessing loss. However, where, as here, the after-coming evidence would not have been available, it cannot be taken into account. It is possible to depart from that basic principle in exceptional circumstances though: "In my view there must be a requirement for a significant or serious scale to the consequences of the supervening event, before it should be permitted to establish an exception to the normal principle. Unless there is some such threshold, there will be a continuing pressure to admit fresh evidence which would not have been available at the original notional trial, on all aspects of such cases, dependent on the energy and resources of the parties to the professional negligence action and their insurers".
Accordingly, the recorder had erred and the case was remitted for a rehearing.