PRACTICAL LAW DISPUTE RESOLUTION: CASE OF THE MONTH

Supreme Court allows appeal in Perry v Raleys case on causation in loss of chance cases

In a regular slot, Beverley Barton, Senior Editor in the Practical Law Dispute Resolution team, selects a case of particular interest reported on by Practical Law during the previous month.

Subscribers to Practical Law Dispute Resolution can access further analysis and practical guidance on this case, and other judgments, on the Practical Law Dispute Resolution website (www.practicallaw.com ).

In Perry v Raleys Solicitors [2019] UKSC 5, the Supreme Court allowed an appeal against the Court of Appeal’s decision, and restored the order of the County Court judge. It held that the defendant solicitors were not liable to the claimant in respect of their negligent advice regarding the settlement of his claim for compensation for personal injury. The judgment provides useful clarification of the correct approach when considering causation issues in loss of chance cases.

Reversing the Court of Appeal’s decision (see Legal update, Court of Appeal allows claim against solicitors whose negligence caused loss of chance of pursuing a claim), the Supreme Court has held that a law firm that admitted negligence (having failed to advise its client about a possible “services claim” under a vibration white finger compensation scheme) had not caused its client loss. The court did not agree that the trial judge had wrongly conducted a “trial within a trial” of questions that would have arisen if the claimant (C) had made a services claim, and had wrongly required this to be proved on the balance of probabilities.

Lord Briggs’ judgment usefully clarifies the proper approach when considering causation in loss of chance cases. He recognised that difficulties in “counter-factual cases” (where the court determines what the position would have been if professionals had complied with their duty of care) and cases where the assessment of damages depends on the likelihood of future events, mean that, occasionally, the court will depart from the ordinary burden to prove facts on the balance of probabilities. However, none of this abandons the “basic requirement”, in negligence cases, for proof of loss caused by the breach of duty.

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 (what the client would have done) and what may be better assessed by evaluation of a lost chance (where dependent on what others would have done).

C needed to prove that, if properly advised by Raleys, he would (and could) have made an honest services claim in time. The relevant facts did not fall within the categories of “futurity or counter-factuality” so had to be proved on the balance of probabilities, and Raleys were entitled to “forensically” test them.

Lord Briggs disagreed with the Court of Appeal that the trial judge had imposed on C an additional burden of showing that the claim would have been successful.

Nor was he satisfied that C had established, “to the requisite high degree”, any of the grounds upon 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 issues of fact”.

Case: Perry v Raleys Solicitors [2019] UKSC 5 (13 February 2019) (Lady Justice Hale, Lords Wilson, Hodge, Lloyd-Jones and Briggs).

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