Kerry Underwood

PROFESSIONAL NEGLIGENCE: SUPREME COURT RULING

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Kerry Underwood offers consultancy services in relation to this and other matters and details are here.

In

Perry v Raleys Solicitors [2019] UKSC 5 (13 February 2019)

the Supreme Court restored the decision of the trial judge and held that the Court of Appeal had been wrong to overturn the findings of fact of the trial judge.

Here the claimant, a retired miner, made a Vibration White Finger claim under the government scheme and subsequently sued his former solicitors, the defendant here, for failing to claim certain heads of damages.

The trial judge found that the claimant had failed to establish causation.

The Court of Appeal overturned that decision and awarded damages, but the Supreme Court said that the claimant had failed to establish to the requisite high degree any of the grounds on which the Court of Appeal concluded that this was ”one of those rare cases where it was appropriate to reverse the trial judge’s findings on the issues of fact.”

The Supreme Court gave guidance as to the proper approach when considering causation in loss of chance cases and recognised the difficulties in counter-factual cases, that is where the court has to determine what would have happened if a professional person had complied with her or his duty of care.

Cases where the assessment of damages depends on the likelihood of future events, mean that the court will sometimes depart from the ordinary rule that facts must be proved on the balance of probabilities, but none of these issues affects the basic requirement in negligent cases for proof of loss caused by the breach of duty.

The case of  

Allied Maples Group Ltd v Simmons & Simmons (a firm) [1995] 1 WLR 1602

establishes a sensible, fair and practicable dividing line between what must be proved, that is what the client would have done, on what is better assessed by evaluation of a lost chance, that is where the issue is dependent on what others would have done.

The claimant needed to show that, if properly advised by his solicitors, he would and could have made an honest claim and the relevant facts did not fall within “futurity or counter-factuality” and so had to be proved on the balance of probabilities and the solicitors were entitled to test them.

Comment

No new legal principle here, and hard to see why the matter was allowed to proceed to the Supreme Court.

Basically, all it does is to re-state that it will be very rare to justify overturning a trial judge’s findings of fact.

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Written by kerryunderwood

February 15, 2019 at 9:17 am

Posted in Uncategorized

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