Description
The claimant sought damages from a firm of solicitors for alleged negligent advice. It was alleged that the firm wrongly advised the claimant, who had settled claims for general damages and handicap on the labour market, to abandon a claim for services under a tariff based compensation scheme for those who had developed vibration white finger (VWF) as a result of exposure whilst employed at British Coal.
Claim allowed. Held: Solicitors owe a duty of care to their clients both in contract and tort. The standard of care is the reasonably competent solicitor. The correct approach to a claim for a loss of chance requires, first, a determination of whether there has in fact been a breach of duty. Secondly, whether the breach caused or materially contributed to the alleged loss. Thirdly, whether there was a real and substantial (rather than merely negligible or hypothetical) prospect that the claim would succeed. The legal burden is on the claimant to show that something of value was lost. The evidential burden is on the defendants to show that the claimant was properly advised, which is higher where no advice other than general information is given. Fourthly, where the chance was more than merely negligible, a realistic and generous assessment of what would have been the prospects of success had the original litigation been fought out. Finally, an assessment of what the likely value of the claim was, taking into account the prospects of success. Where delay impacts the discernability of the strength of the original claim, such difficulties will count against the solicitors and not the claimant. (
Dixon v Clement Jones Solicitors [2004] EWCA Civ 1005;
Mount v Barker Austin [1998] EWCA Civ 277;
Sharif v Garrett and Co [2001] EWCA Civ 1269).
In the present case, although the claimant gave vague and unconvincing evidence it did not amount to a fraudulent claim. The defendant firm failed to provide any evidence of the advice given; was negligent in failing to provide detailed information enabling the claimant to make a value judgement as to whether it was worth abandoning the claim; and, erroneously advised the client that he was not entitled to a further interim payment. The original claim had a prospect of success, which was real and substantial and not negligble, amounting to 75%.
