The Court of Appeal, in Perry v. Raleys Solicitors  EWCA Civ 314, has reminded practitioners (and lower courts) that, in a claim for professional negligence, the trial judge should not seek to conduct a trial within a trial.
1. The claim arose out of the ongoing vibration white finger ("VWF") litigation.
2. In very short summary, a large number of claims in the late 90’s/early 2000’s were brought pursuant to a compensation scheme for miners, set up by the Department for Trade and Industry ("DTI") who had assumed the liabilities of British Coal.
3. As part of that scheme, claims could (depending on a Claimant’s staging within a matrix, a questionnaire and any co-morbidity on assessment) be made for an inability to undertake normal, domestic services and tasks (such as DIY).
4. The Claimant instructed the Defendant to pursue his claim within this scheme. His claim settled without a claim for services, having not been advised of the possibility of bringing such a claim.
5. The Claimant later brought a claim against the Defendant for its alleged negligent failure to pursue a claim for services.
6. The Defendant’s defence included an argument that the Claimant would not likely have instructed them to pursue such a claim and/or that the same would likely have failed.
7. At first instance the trial judge found, inter alia, that the Claimant had failed to prove that, had he been advised of the possibility of making such a claim, he would have likely succeeded.
8. In particular, the Claimant had failed to prove that he:
"…’honestly’ met the ‘factual matrix’ for making a claim for ‘services’".
9. The judge therefore dismissed the claim on the basis that the Claimant failed to prove that he would likely have succeeded in his claim for services had he brought the same.
10. The Claimant appealed on several bases. For present purposes, the ground of appeal that is relevant was that the trial judge took the wrong approach on the issue of causation.
11. The Claimant’s case was that it was wrong in law for the court to conduct a trial of what would have been the underlying claim against the DTI.
12. The Court of Appeal agreed.
13. It held that the trial judge:
"…did not regard the honesty issue as one that should be taken into account by the court at the stage of calculating the chances of the success of any such claim".
14. This was wrong. Doubts as to likelihood of success (in the underlying claim) ought to be reflected in the evaluation of the chance of success.
15. However, the Court of Appeal noted a lack of clarity in some authorities as to when a finding that a Claimant would not likely have succeeded in the underlying claim would result in the dismissal of a consequent professional negligence claim.
16. Citing Kitchen v. Royal Airforce Association  1 WLR 563, the Court of Appeal noted that where the claim ‘must have succeeded’, the Claimant will likely recover in full. Equally, where the claim ‘never had a cause of action, that there was no case which the plaintiff could reasonably ever have formulated’, the claim will fail entirely.
17. Further citing Hanif v. Middleweeks  Lloyd’s Rep PN 920, the Court of Appeal adopted the following test for professional negligence claims for failure to pursue a claim:
18. "the court only assesses prospects and awards damages on a percentage basis unless it is overwhelmingly clear on the material before the court that the claimant was almost bound to succeed or had, conversely, only a negligible prospect of success, in which case the court may move to a 100% or nil award."
19. The Court of Appeal has therefore reminded practitioners and reviewing courts (and has added some clarity to the possible interpretations of earlier authorities suggesting otherwise) that claims for professional negligence for failing to pursue claims are, usually, to be assessed on a loss of chance basis.
20. When a case fits within the description of being ‘overwhelmingly clear on the material…’, so as to depart from the usual approach, will be the testing aspect for practitioners.
21. Of some assistance to Claimants is the decision in Mount v. Barker Austin  P.N.L.R. 493. In that case, Simon Brown LJ held that where there is difficulty for the court in determining the strength of the claim as it would have been at the time it ought to have been brought, that counts against the Defendant.