The Supreme Court has delivered another significant Judgment arising from the handling of the VWF litigation against British Coal.
The case of Edwards on behalf of the estate of the late Thomas Arthur Watkins (Respondent) v Hugh James Ford Simey Solicitors (Appellant)  UKSC 54 on appeal from  EWCA Civ 1299, concerns the negligence of the Claimant’s solicitors in failing to properly advise on a settlement offer which failed to include a services award in respect of the need for assistance in performing domestic duties.
Parklane Plowden barrister's Richard Copnall and Abigail Telford represented the Respondent throughout the duration of the case. They were instructed by Susan Hargreaves from BPS Law LLP. This case was one of the first heard by the Supreme Court sitting in Cardiff over the summer.
The DTI assumed responsibility for British Coal’s relevant liabilities following the test case of Armstrong v British Coal Corpn  CLY 975, which saw some 25,000 claims against the company for failing to take reasonable steps to limit the exposure of employed miners to VWF from the excessive use of vibratory tools. The resultant ‘Scheme’ was established in 1999 to process the claims pursuant to a Claims Handling Arrangement. It provided tariff-based compensation to miners for ‘pain, suffering and loss of amenity’ and ‘handicap on the labour market and other future and past financial losses’, including the cost of paying for assistance in performing six tasks: gardening; window cleaning; DIY; decorating; car washing and car maintenance.
On the advice of his solicitors, in February 2003 Mr Watkins dropped his services claim on the basis that he felt he had other medical conditions that may have had an impact on his ability to do tasks. He accepted a full and final settlement offer that only took into account his general damages entitlement under the Scheme. Under the Scheme, more particularly the Services Agreement (incorporated in the Claims Handling Agreement in May 2000), he would have been entitled to a services claim.
Professional Negligence Action
In response to seeing an advert about under-settled VWF claims, in 2010 Mr Watkins began a professional negligence action against his former solicitors. As part of that action a judge at Leeds County Court ordered that an expert medical report should be obtained in the form of a report from a single joint expert. Mr Watkins was examined on May 2013 and a report was obtained confirming the diagnosis of HAVS and that Mr Watkins has ‘devolved certain tasks to others in the long term’.
Mr Watkins died in January 2014, aged 72.
At the County Court hearing the judge held that, had Mr Watkins received appropriate advice, he would have continued to pursue his services claim. However, the judge also held that based on the new medical evidence, Mr Watkins had been ‘over compensated’ for the general damages aspect of his claim and had no legitimate services claim. The case was therefore dismissed.
The Claimant appealed.
Court of Appeal
The Court of Appeal upheld the Claimant’s argument that the original judge had been ‘wrong to conduct a trial within a trial’ to determine the value of Mr Watkin’s claim against the DTI and to determine the severity of his VWF. It was further held that it had been wrong for the case to be determined on medical evidence that was not available at the time of Mr Watkin’s notional services claim under the Scheme.
Supreme Court – legal argument
At the Supreme Court, the Appellants argued that the original trial judge had been right to reply on the new medical evidence for four reasons:
1) In the circumstances of this case, the question whether Mr Watkins had suffered loss should be determined as at the date of the trial of the claim against the appellant, applying the Bwllfa principle.
2) In a professional negligence claim arising from personal injury litigation, the issue of loss should be determined as at the date of the trial of the professional negligence proceedings as it would have been in personal injury litigation (Golden Strait Corpn v Nippon Yusen Kubishika Kaisha (The Golden Victory)  2 AC 353, per Lord Bingham of Cornhill at para 13).
3) Even if the issue of loss should be determined at an earlier date, the Court should in making that determination take account of all of the evidence available at the trial of the professional negligence proceedings, following the decisions in Charles v Hugh James Jones & Jenkins  1 WLR 1278, Dudarec v Andrews  1 WLR 3002 and Whitehead v Searle, as this would enable the court to make a more accurate assessment of what the original personal injury claim was actually worth.
4) That evidence was needed in the present case to enable the issue of loss to be determined “with all the adversarial rigour of a trial” as required by the Supreme Court in Perry v Raleys Solicitors:  2 WLR 636, para 19.
On behalf of the respondent, Mr Richard Copnall of Parklane Plowden Chambers, leading Abigail Telford, argued that the court should assess the prospects of success as at the date when the claim was lost, on the facts as they were and the evidence available at that time, subject to the following established exceptions:
1) Evidence that would have been available, in the absence of negligence, at the time the claim was lost will be admissible (Charles; Dudarec v Andrews  1 WLR 3002).
2) Evidence of the original parties’ attitude to settlement at the time that the claim was lost will be admissible (Somatra Ltd v Sinclair Roche and Temperley  2 Lloyd’s Rep 855).
3) Evidence of dishonesty or misconduct will be admissible (Perry; Green v Collyer-Bristow  Lloyd’s Law Rep PN 798).
4) Evidence of any accomplished fact within the meaning of the Bwllfa principle will be admissible.
Supreme Court – Judgment
In a unanimous judgment, the court accepted the Respondent’s arguments and dismissed the appeal. It concluded that there was no justification for considering the new medical report, which would never have been commissioned in the original claim, nor for reassessing the diagnosis or staging set out in the medical evidence obtained at the time. Accordingly, the new medical evidence was not relevant to any issue before the court.
Significance of the decision
Counsel for the Respondent, Richard Copnall of Parklane Plowden Chambers:
“In the immediate future, the decision provides much needed clarity for those litigating solicitors’ negligence claims arising out of the British Coal scheme. It prevents defendants and their insurance from challenging the quantification of such claims on the basis of medical, or other, evidence that was not available at the time of the original claim under the scheme. This is likely to lead to the prompt settlement of the many claims that have been stayed or stalled, awaiting judgment in this appeal.
In the longer term, the principle is likely to be applied to claims arising from other schemes and, perhaps, to professional negligence claims in general.”
Solicitor for the Respondent, Susan Hargreaves of BPS Law LLP:
“This judgment confirms what Claimant lawyers have always thought - that claims handled under a scheme must be treated differently because schemes are intended to provide an efficient and economic system for dealing with a huge number of claims in a way that was broadly fair. To then seek to apply conventional civil procedure rules is counterproductive and goes against the purpose for establishing a scheme in the first place.”
Appellant was represented by -
Solicitor: DAC Beachcroft LLP
Counsel: Michael Pooles QC | Matthew Jackson – Hailsham Chambers