In Perry v Raleys Solicitors1 the Supreme Court addressed three important questions for professional negligence lawyers:
- When will the Court assess causation on a loss of a chance basis;
- When is it appropriate for the Court to conduct a ‘trial within a trial’;
- In claims for lost litigation how far is it necessary for the claimant to demonstrate that the lost claim would have been honestly made.
Mr Perry was a retired miner who had suffered from a condition known as Vibration White Finger. He had been advised by the Defendant solicitors in respect of a claim under a governmental scheme to compensate miners who had been afflicted with this condition. The scheme covered awards broadly equivalent to general and special damages. The special damages element (known as the Services Award) was assessed on the basis of the extent to which an individual claimant could perform six domestic tasks.
Mr Perry had settled a claim for his injury, but the Defendant had failed to advise him in respect of bringing a claim for the Services Award. By the time of trial, it was admitted that this failure was in breach of duty, however, the claim was defended on the basis of causation. Mr Perry’s professional negligence claim was dismissed by HHJ Saffman at first instance. However, that decision was reversed by the Court of Appeal. 2
The Supreme Court reviewed the principles to be followed in respect of causation. Lord Briggs, giving the judgment of the Court, confirmed that a loss of a chance approach is appropriate where:
- It would be absurd to approach the negligence claim on an all or nothing basis where the claimant obtains nothing if the prospects were 49 per cent but full damages at 51 per cent. 3
- It would be unfair for the claimant to have to prove facts in the underlying claim. This may be because of the passage of time or because disclosure or obtaining witness evidence would be impossible. 4
- Following Allied Maples v Simmons & Simmons, 5 the claimant is establishing a hypothetical case based on the actions of a third party (as opposed to steps they would have taken in the counterfactual scenario). 6
Applied to Mr Perry’s case it was necessary for him to demonstrate that had he been properly advised that he would have made a claim under the scheme for a Services Award. In addition, whether Mr Perry had the symptoms that would form the basis of such a claim were matters that were in his knowledge and so this was also suitable to be tried on a balance of probabilities basis.
The Supreme Court also held that it was necessary for Mr Perry to demonstrate that his Services Award claim was one that he would have made honestly. They held this by an extension of the reasoning in Kitchen v Royal Air Force Association.7 In Kitchen the Court had held that it was not sufficient for a claimant to say that although they did not have a claim in law, they would have brought proceedings against a third party which would have been bought off for a nuisance value. If the Court was not prepared to allow a claimant to succeed in a professional negligence action brought where there was no claim in law, they should not be prepared to allow a professional negligence action where there was no honest claim.
The judge at first instance had been very critical of Mr Perry’s evidence, describing his complete lack of credibility as a witness. His evidence that he had been unable to perform the domestic tasks that formed the basis of the Services Award was undermined by both his medical records and by other evidence, including photographs of him fishing, of his manual dexterity.
This led the Supreme Court to consider whether the Court of Appeal had been correct to criticise the trial judge for carrying out a ‘trial within a trial’ in order to reach these conclusions. The Supreme Court held that this criticism was unjustified. In Lord Briggs’s words:
Since success or failure in proving on the balance of probabilities that he would have taken the necessary initiating step is of such fundamental importance to the client’s claim against his advisor, there is no reason on principle or in justice why either party to the negligence proceedings should be deprived of the full benefit of an adversarial trial of that issue. 8
The only caveat to that is the question of whether the issue is one that can be fairly tried.
Given that the trial judge had been able to fairly try the question and had found Mr Perry’s evidence to be severely lacking, the correct conclusion was that the Claimant had failed to discharge the burden of proof on the balance of probabilities.
In addition, the trial judge had also found that the evidence given by Mr Perry’s wife and two sons was not credible. The Court of Appeal had been critical of this finding, however Lord Briggs found that this criticism – although establishing why the members of the Court of Appeal might have reached a different conclusion had they heard the trial – did not pass the high bar to overturn the trial judge’s findings on the evidence. The trial judge’s findings could not be described as irrational and therefore the Court of Appeal had been wrong to interfere in the findings.
The Supreme Court therefore reversed the judgment of the Court of Appeal and re-instated the trial judge’s Order. The case provides useful guidance as to when a case should be conducted on a loss of a chance basis. In addition, it demonstrates that where a claimant is required to prove a fundamental element of their case on the balance of probabilities, unless it is unfair to do so, it will be a matter that the Court should interrogate as it would have interrogated the underling claim.
1 UKSC 5
2 EWCA Civ 314
5 1 WLR 1602
7 1 WLR 563