Over the last twelve months claimant personal injury firms have been deluged by an unprecedented number of file requests and preliminary notices of claim relating to alleged under-settlements – a trend that has become known as "cannibalism". That trend shows no signs of abating, although the High Court's recent decision in Berney v Thomas Saul & Co (2015) offers encouragement to the targets of such claims and a reminder of some of the tactics which can be employed when defending them.
The claimant, Susan Berney, suffered injury in a car accident in April 1999. She instructed the defendant solicitors, Thomas Saul & Co, to pursue a personal injury claim on her behalf against the other driver, a Ms Liddel. Liability was admitted at an early stage, and therefore only quantum was in issue. The Claim Form was issued within the three year limitation period, but Thomas Saul failed to then file the Particulars of Claim in time (or at all). However, solicitors for Ms Liddel did not raise this as an issue at any point between 12 August 2002 (the last date for filing the Particulars of Claim within the limitation period) and March 2004 when Thomas Saul was dis-instructed.
The claimant instructed new solicitors who advised that she was vulnerable to an application to strike out, in part due to the failure to file Particulars of Claim in time. Solicitors for Ms Liddel confirmed in July 2005 that they would oppose any application to file Particulars of Claim out of time, but made a without prejudice offer to settle of £10,000. Through negotiation this was increased to £25,000 plus costs, which the claimant accepted.
Following settlement the claimant brought a professional negligence claim against Thomas Saul, on the basis that she was obliged to accept a lower sum from Ms Liddel due to the failure to file Particulars of Claim, given the risk of her claim being struck out and adverse costs awarded. Her claim was therefore one of lost opportunity to pursue her personal injury claim and to recover more than the £25,000 plus costs that she did. She argued that she should have recovered over £800,000, claiming amongst other things that due to the injuries suffered she was unable to obtain a training contract and therefore could not work as a solicitor, causing a substantial loss of income. Thomas Saul admitted breach of duty, but opposed the claim on the basis that the claimant would never realistically have recovered more than £25,000.
At trial, HHJ Walden-Smith came to the conclusion that:
"the injuries sustained by the Claimant by reason of the RTA do not account for the symptoms of which she now complains … I do not consider that there is any causative link between the RTA and Ms Berney's inability to obtain employment as a solicitor and she cannot claim for loss of earnings … In all the circumstances … I do not consider that Ms Berney would have been likely to recover anything more than £10,000. I do not find that she has a real, rather than fanciful, prospect of recovering more than £25,000".
The Judge's view was that the claimant's underlying personal injury claim was weak, and that the £25,000 settlement reached was in fact far more than she would have recovered at trial. Accordingly, and applying the test in Mount v Barker Austin  PNLR 493, the claimant failed to establish that in her underlying personal injury claim she had a real and substantial, rather than merely a negligible, prospect of successfully recovering more than £25,000 but for the defendant's breach of duty and her claim must therefore fail.
This case does not make any new law, and merely represents a re-statement of established causation principles. However it is a useful example of the hurdles that claimants must surmount when pursuing loss of chance cases, particularly in cases of alleged under settlement in litigation. More significantly, it illustrates that "cannibalism" claims can be defended even where there is an exposure in terms of breach of duty. In our experience, in many such claims claimant solicitors often make only a very cursory, if any, mention of their case on causation. Solicitors facing such claims (and their insurers) should be careful to review the merits of the underlying claim and to use any weaknesses in this as a means to reduce quantum or to avoid liability altogether. This might include a detailed analysis of the medical evidence obtained, and consideration of whether the injury referred to genuinely relates to the incident cited, as opposed to a pre-existing condition. Testing a claimant's evidence on their employment prospects may also have the effect of undermining their case on quantum.
It may be unattractive for a defendant firm of solicitors to argue that a claim was weak when it had previously actively pursued that matter on the claimant's behalf. However, with careful handling it can be done. In our experience, using the information gathered during the original proceedings and casting a critical eye over the heads of loss included may produce arguments capable of disposing of the negligence claim at lower cost, or even of defeating it entirely.