Oxford Row , Leeds
B e f o r e :
| RONALD ALAN BARNABY
Miss Foster (instructed by Berrymans Lace Mawer) for the Defendants
Hearing dates: 24th, 25th and 26th June 2013
Crown Copyright ©
His Honour Judge Gosnell:
In July 1998 the Court of Appeal upheld a decision of the High Court finding British Coal negligent in exposing miners to excessive vibration resulting in them contracting VWF. By this time the Department for Trade and Industry( "DTI") had taken over responsibility for British Coal and set up a compensation scheme ("the Scheme") to provide tariff based compensation to miners who had been exposed to vibration and suffered from VWF. The Claimant had used vibratory tools in both his employments and was entitled to claim under the Scheme.
The Claimant instructed the Defendants and filled in one of their standard questionnaires on 1st March 1999. It is fair to say that the form is only partially completed in some areas (in particular about his symptoms) but it did say his symptoms had commenced on 1st June 1991. A claim was submitted to IRISC and accepted by them on 27th October 1999 as a group 1 claim which was for workers who used vibratory tools regularly in their work. On 4th May 2000 a MAP1 report was produced by Dr Ryan. He assessed the Claimant as suffering from VWF and his staging was 2V 2SN (early). The Claimant was advised by the Defendants that he may be able to make a services claim and he was sent a Claimant Services Questionnaire to complete and a Claimant's Witness Questionnaire to be completed by anyone who provided services.
It is not controversial that the Defendants owed a duty of care to the Claimant both in contract and tort. The standard of care required is that of the reasonably competent Solicitor. The parties in this case disagree whether the Defendants did in fact act in accordance with that standard and whether in fact there was a breach of the duty of care. There was however some debate as to the correct approach in dealing with a case such as this and I derive the following assistance from the authorities. In Dixon v Clement Jones Solicitors  EWCA Civ 1005 Lord Justice Rix said:
"There is no requirement in such a loss of a chance case to fight out a trial within a trial, indeed the authorities show as a whole that that is what should be avoided. It is the prospects and not the hypothetical decision in the lost trial that have to be investigated. …. The test is not to find what the original decision of the underlying litigation would have been as if that litigation had been fought out, but to assess what the prospects were."
Agreeing, Carnwath LJ observed at :
"The judge was not trying the action against the accountants. The opportunity for a trial of that had been lost. His view as to what the outcome would have been was strictly irrelevant, except as one stage in the process of deciding the value of the loss opportunity.
Lord Justice Simon Brown has given Judgement in two relevant cases on this issue. The first in time was Mount v Barker Austin  PNLR 493 at 510D:
"(1) The legal burden lies on the plaintiff to prove that in losing the opportunity to pursue his claim … he has lost something of value i.e. that his claim … had a real and substantial rather than merely a negligible prospect of success. (I say 'negligible' rather than 'speculative' -- the word used in a somewhat different context in Allied Maples Group Ltd v Simmons & Simmons  1 WLR 1602 -- lest 'speculative' may be thought to include considerations of uncertainty of outcome, considerations which in my judgment ought not to weigh against the plaintiff in the present context, that of struck-out litigation.)
"(2) The evidential burden lies on the defendants to show that despite their having acted for the plaintiff in the litigation and charged for their services, that litigation was of no value to their client, so that he lost nothing by their negligence in causing it to be struck out. Plainly the burden is heavier in a case where the solicitors have failed to advise their client of the hopelessness of his position ….
"(3) If and insofar as the court may now have greater difficulty in discerning the strength of the plaintiff's original claim … than it would have had at the time of the original action, such difficulty should not count against him, but rather against his negligent solicitors. It is quite likely that the delay will have caused such difficulty ….
"(4) If and when the court decides that the plaintiff's chances in the original action were more than merely negligible it will then have to evaluate them. That requires the court to make a realistic assessment of what would have been the plaintiff's prospects of success had the original litigation been fought out. Generally speaking one would expect the court to tend towards a generous assessment given that it was the defendants' negligence which lost the plaintiff the opportunity of succeeding in full or fuller measure. To my mind it is rather at this stage than the earlier stage that the principle established in Armory v Delamirie (1722) 1 Stra 505 comes into play."
He developed this further in Sharif v Garrett and Co  EWCA CIV 1269:
"38 In stating the principles generally applicable to this class of case, I indicated in Mount v Barker Austin  PNLR 493, 510 a two-stage approach. First, the court has to decide whether the claimant has lost something of value or whether on the contrary his prospects of success in the original action were negligible. Secondly, assuming the claimant surmounts this initial hurdle, the court must then 'make a realistic assessment of what would have been the plaintiff's prospects of success had the original litigation been fought out'.
"39 With regard to the first stage, the evidential burden rests on the negligent solicitors: they, after all, in the great majority of these cases will have been charging the claimant for their services and failing to advise him that in reality his claim was worthless so that he would be better off simply discontinuing it. The claimant, therefore, should be given the benefit of any doubts as to whether or not his original claim was doomed to inevitable failure. With regard to the second stage, the Armory v Delamirie (1722) 1Str 505 principle comes into play in the sense that the court will tend to assess the claimant's prospects generously given that it was the defendant's negligence which has lost him the chance of succeeding in full or fuller measure."
The correct approach would therefore appear to be to firstly determine whether there has in fact been a breach of duty. Secondly, if there has, the court must then ask whether the breached caused or materially contributed to the Claimant's alleged loss. Thirdly, the court must decide if the Claimant has lost something of value in the sense that his prospects of success are more than negligible. Fourthly, if the court decides that the Claimant has lost a claim with more than negligible prospects of success it must make a realistic assessment of what those prospects of success were. Finally, the court will need to make an assessment of what the likely value of the claim was having taken account of the prospects of success.
The Claimant gave evidence in support of his claim and had previously served three witness statements setting out his evidence. He confirmed on oath that these statements were true. During the course of cross-examination however it became clear that he was not familiar with the contents of the statements and that they had been drafted on his behalf by his Solicitors and he had signed them without fully understanding what they said. The Claimant however did give evidence that he had suffered from VWF since about 1989, that shortly after that date he had required help with various services, including car washing, car maintenance, cleaning windows and gardening. He confirmed that he was in fact receiving such assistance from his wife and had done so for many years. He said that he had wished to make a services claim but when he was told about the offer in December 2002 he decided to accept it as he needed the money. He had planned a surprise holiday for himself and his wife in June 2003 to celebrate their 25th Wedding Anniversary and he needed to pay for the holiday soon. He was not able to elucidate his thought process at the time in any more detail other than that he needed the money and that he thought if he did not accept the offer he would not get the money ( at least for some time).
This case is mainly about the advice which the Defendants gave to the Claimant shortly before he accepted his offer but there is a subsidiary point which developed at trial to enable the Claimant to deal with the fact that he had only claimed services for three tasks (one of which he was not entitled to claim on his staging) whereas in fact he requires services for two additional tasks (window cleaning and car maintenance). The Claimant ( through leading counsel) alleges that the Questionnaires appear to have been partly completed and contain some information which is not consistent with what the solicitor was told on 8th August 2000 namely that his symptoms started in 1989 and he had been to see his doctor in 1991. The Questionnaires both give the impression that the need for services arose in 1995. If the Defendants as competent solicitors had discussed these entries with the Claimant directly and fully, they would have discovered firstly perhaps that the dates in the Questionnaires were wrong and secondly that there were two other tasks which he was no longer performing and for which he was obtaining assistance. If they had done that they would have submitted a claim to IRISC claiming for all four tasks.
"I explained the issue to Mr Barnaby regarding services and explained the delays regarding this. Mr Barnaby told me that his claim had been ongoing for five years but he told me he will think about this over the weekend, and send the form back accepting or rejecting.
I did however explain to Mr Barnaby that he will not be entitled to a second interim payment as he received a high amount the first time round. Mr Barnaby understood this."
The Defendants at trial conceded for the first time that the second paragraph of this note contains incorrect advice. The Claimant's case is that he should have been told that rejection of the offer would not result in the offer of £10,822.01 being reduced and that he would be entitled to a further interim payment of up to 92.5% of this sum pending determination of his services claim. He should have been told how much his services claim was potentially worth which would be a relatively easy calculation on the basis of his staging and the tariff figures (on my factual findings £7900). He should have been told that on the basis of his MAP1 report he was presumed to need assistance with the activities he was claiming for ( apart from decorating) and that the MAP2 examination was solely to determine whether he had some other medical condition which could affect his ability to do these tasks. The Claimants case is that he should have been given proper advice about the quantum and strengths and weaknesses of his case so that he could make a properly informed decision whether to abandon the services claim and accept the offer.
This leads neatly on to the next issue which is whether the breaches of duty I have identified caused or materially contributed to the Claimant's loss. The Defendants put their case very strongly on this issue. The Defendant says that the Claimant is not suffering from VWF and has never done so. If the court makes a factual finding to that effect then the court will find it easier to make a factual finding that the Claimant abandoned his claim for services because he knew he had no real need for services not because he was negligently advised. The Defendants rely on the fact that the original MAP1 medical assessment is not as robust as a normal medico-legal assessment and cannot be relied on. The Defendants also rely on the fact that the Claimant at various times to various bodies (his own solicitors, the Benefits Agency, doctors assessing his condition) has given conflicting information as to the commencement of his symptoms and the nature of his symptoms such that his claim is not believable. They also rely on the Claimant's performance in the witness box to add weight to this contention.
The legal burden lies on the Claimant to prove that in losing the opportunity to pursue his services claim he has lost something of value, namely that his claim had a real and substantial rather than merely a negligible prospect of success. However an evidential burden lies on the Defendants in this case to show that, despite their acting for the Claimant in the litigation and advising him that they would recommend he proceeded with the claim where there was a reasonable prospect of succeeding, there was in fact no real prospect of success. This burden is higher in the present case where they never told him his case was hopeless or even alluded to the difficulties in his case at the time.