England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
(MR JUSTICE BUCKLEY)

		Royal Courts of Justice Strand London WC2 Friday, 8th June 2001

Friday, 8th June 2001

1. LORD JUSTICE SCHIEMANN: Sir Murray Stuart Smith will give the first judgment.
2. SIR MURRAY STUART SMITH:

Introduction

3. This is an appeal from a decision of Buckley J given on 20th February 1998 dismissing the claimant's claim for professional negligence against solicitors and counsel who advised her and her parents in relation to a road accident.
4. The accident occurred on 17th May 1988 at about 3.45 in the afternoon when Victoria Griffin, then 12 years old, was on her way home from school when she was struck and was very seriously injured by a BMW motor car driven by a Mrs Grant. The accident occurred on the north side of the A272 and somewhat to the east of the junction with the A275 in North Chailey, East Sussex. The first defendant, a solicitor, was instructed with a view to claiming damages from Mrs Grant. Victoria's injuries, in particular her head injury, were and remain of maximum severity. The first defendant, and a Mr MacMahon, then employed by her, carried out some investigations into the circumstances of the accident.
5. On 3rd October 1989 the first defendant met solicitors acting for Mrs Grant's insurers and an offer of £50,000 was put forward. On 5th October 1989 the third defendant, who was then junior counsel, experienced in personal injury cases, was instructed to advise. He did so in a written opinion dated 13th October. The first defendant formed the view that a claim on behalf of Victoria had no real or sensible chance of success and that was the effect of the third defendant's opinion. Mr Griffin, Victoria's father, was advised accordingly. The offer was duly accepted. Everybody agrees that on full liability Victoria's claim would have been worth at least £500,000. Having regard to the fact that Victoria needed full-time care and would never earn her living, even in 1989 a reasonable figure for damages would in my judgment have been nearer £1m.
6. The first defendant agreed in evidence that, even assuming a finding that Victoria was mainly to blame, the settlement represented but a fraction of the full value of the claim; in other words it approximated to a "nuisance value" offer and reflected her and counsel's views of the prospects. Proceedings had not been commenced and so an originating summons was issued on 27th November 1989 for approval of the settlement and its incorporation in a court order. The summons was heard by Master Turner, now Senior Master, and an approval was given. The order was sealed on 20th February 1990 and on 23rd the £50,000 was paid. The approval hearing was attended by a representative of the second defendant, the first and the second defendant solicitors having merged their practices.
7. In these proceedings Victoria, through her father and next friend, seeks damages against the defendants, on the grounds that they were negligent in advising Mr Griffin that her claim had no real prospects and the offer should be accepted. The defendants deny negligence and causation and raise, by way of further defence, that they were immune from liability and proceedings were an abuse of the court's process. The defence that the claim was an abuse of the process succeeded before the judge, but in the light of the decision of the House of Lords in Arthur JS Hall & Co v Simmons [2000] 3 ALL ER 673 it is now accepted that this was wrong. The judge also held that even though he considered that the claimant would have succeeded in the claim with only a possible minor deduction for contributory negligence nevertheless neither of the defendants were negligent. He found that had the defendants not been negligent the claim would have succeeded; that because of the negligent advice to accept £50,000 he held that the claimant lost a chance of receiving substantial damages. He assessed the value of the chance at two-thirds of the full value of the claim.
8. The claimant appeals against the finding of no negligence. She also appeals the assessment of the loss of the chance at only two-thirds. She says it should be 85 per cent. The defendants have served respondents' notices. A number of points are made. First, that the judge should not have given leave to re-reamend the statement of claim on the seventh day of trial (the trial lasted altogether ten days); secondly, the judge was wrong on the question of causation; and thirdly that he over assessed the value of the chance.

The accident

9. The scene of the accident was the A272 road just east of its junction with the A275, that being a staggered junction. It is shown on a number of police photographs taken at the time and a sketch plan contained in the police report. The road is about 29 feet wide but there is a central reservation or phantom island to enable vehicles travelling west along the A272 wishing to turn north into the A275 to do so, while traffic travelling straight on could pass on its nearside. Just beyond the place where the accident occurred the road narrows. This is affected by the east-bound carriageway of the A272 going to the right, so that a driver going east along the A272 has to steer to his right to avoid colliding with the kerb. The judge described it as almost a half turn. Running along the north side of the east-bound carriageway of the A272 is a path which is separated from the road by a grass verge which ran uphill from the path to the road and at the point where the accident happened was about 8' 7". The east-bound carriageway at the point where the police thought the accident happened was just over 12 feet wide.
10. So far as the defendants were aware there are only two eyewitness of the accident. Mr Brian Bailey, Victoria's grandfather, who was driving a school minibus and had stopped on the opposite side of the road to where the accident happened, and Mrs Grant, the driver of the BMW. In fact there were three children in the minibus, one Tomoko Tatsuta gave evidence at the trial before Buckley J. The statements of the other two were admitted under the Civil Evidence Act.
11. There was an acute conflict between the account of Mr Bailey and that of Mrs Grant. Mr Bailey had made two written statements, the first on the same day as the accident; the second a police witness statement on 20th May 1988. In my view there is no material difference between them, and I shall refer to "the witness statement" where necessary.
12. Mr Bailey was a very experienced driver and a director of Weald House School. He was returning pupils of the school to their homes. He had already dropped three pupils off. He said that Victoria's school bus (not the same school as Weald House) would drop her off in a lay-by on the north side of the A272 but west of the A275. Mr Bailey described the usual procedure of collecting Victoria. He said that after dropping the third child off he was returning towards the A275 junction when he saw his granddaughter. His statement continues as follows on page 295 of the core bundle:

"My granddaughter was waiting outside the bungalow on the north east side of the junction. She had seen me coming and was standing by the side of the road waiting, and jumping up and down.

As we drew closer to where she was standing I was waving to her and motioning to her with the same hand to stay and wait where she was. It was a clear signal and understood by Victoria as she did not make any attempt to cross the road at that time."

13. He then describes how he parked his minibus. He continues:

"Victoria, in this time was still standing on the other side of the road on the verge. She had walked from the east side of the bungalow to the west side, towards the driveway, and was waiting there."

14. He then described how there is a white line in the road about a foot from the kerb side, and he continues.

"As I had come to a stop my granddaughter had stepped slightly onto the road and was positioned flat to the road, facing me, within the gap created by the white line and channel stone. She had stopped here and was making no further attempt to cross the road. She is 12 years of age, and was so on the 27th March this year. For her age she is very used to cars, has a bicycle and is well aware of the dangers involved. She has an excellent road sense.

Having seen her in the described position I looked up forward looking west along the A272 and saw the red BMW motor car travelling towards us, in an easterly direction. She had come from the Haywards Heath direction and had not pulled out from the junction of the A275. I would estimate, because of her speed and would say she was travelling very fast at an unreasonable speed for the type of junction and time of day. I would not wish to estimate the speed but just say that it was very fast.

At the same time I saw this vehicle, another vehicle, vehicle one, started to pull out and overtake the BMW. This speed was totally excessive and obviously well in excess of the BMW as he was in an overtaking position. I'm not in a position to identify any drivers by description or sex."

15. He then says that he anticipated there would be an accident but not that Victoria would be involved in it, and continues:

"As the BMW drew level and opposite me in the Transit van, then vehicle one drew level with us both so that there were three cars abreast the road in the same location. There was nothing travelling in a westerly direction towards Hayward's Heath, thankfully, otherwise it would have been a tight squeeze.

As they drew level with me, both at unreasonable speed I looked right, across both cars at the same time and saw that Victoria had been thrown up into the air by the BMW."

16. He then says he found a mirror.

"From the position I was in it looked as though the BMW didn't move out from the kerb at all. It looked as though no avoiding had been taken but I cannot swear to that."

17. He then goes on to say what happened after the accident.
18. The crucial part of his evidence was that he had seen Victoria standing in the road but at the very edge for an appreciable time before the accident.
19. Mrs Grant made three statements. The first was made orally at the scene to the police. She said:

"I was driving home along the A272 when the girl stepped out in front of me. I couldn't swerve because a lorry was coming the other way. I just couldn't miss the girl."

20. She made a witness statement on 25th May 1988, the material parts of which are as follows, at 298 of the core bundle:

"I know the road and am aware of the complexity and dangerous nature of the junction and the necessary care was obviously taken.

Everything happened so quickly the account from here is somewhat blurred.

Having passed the north junction A275 I think I recall some cars, may be two, on the verge, on the straight part, passed the junction. I cannot be certain of this... Whilst I was concentrating on the road straight ahead I recall seeing a girl, quite tall and in a uniform running, at a reasonable speed, in a straight line. She was initially running in the same direction as me, on the footpath on the north side of the road.

In what seemed like a split second later she turned her course and without looking to her right, towards me, or without changing where she was initially looking she just changed her course and ran, still at the same pace out into the road in front of my car.

At this point I attempted to move to my right away from her but the oncoming traffic made the decision a difficult one to make in the time available. As a result I did move slightly but unfortunately not enough. I wasn't in a position to do so."

21. She then describes how she stopped the car further down the road, and finally says this:

"I am afraid that everything happened so quickly that I cannot give a clearer account of the accident. Unfortunately I don't think I saw the white minibus on the south side of the road prior to the accident. If I had done I may have taken a slightly different course of action."

22. She made another witness statement on 23rd August 1988 obviously when she had been asked about Mr Bailey's account. That could be found page 364 of the bundle and is in manuscript and not altogether easy to read. The material part is this:

"I would say that at the time of the accident I was aware of something on my right, in the road. I remember thinking about swerving away from the girl but didn't because I couldn't though what was stopping me I really don't know. Nothing else stopped. I don't know if it was a car or what.

My impression was that something was coming towards me. At what stage of the accident this was or whether it was just an impression I really couldn't say. I cannot say categorically that something was overtaking or not."

23. When the police attended the scene Victoria was lying in the driveway of a house not far from where she was hit. Mrs Grant's car was in another driveway 82 feet from the scene. There were no brake marks made by the BMW. There were a number of marks in the road where the one surface had been disturbed in the tarmac. At trial it was common ground that the marks closest to where Victoria was found marked the point of impact. But PC Waterman, an experienced police accident investigator, considered that similar marks about 53 feet west to where Victoria was found marked the point of impact. This is shown on the sketch plan in the police report. What is important, however, is that all three sets of marks were close to the nearside kerb and even those points where the police erroneously concluded that the point of impact was, were only 3 inches beyond the white line which marked the edge of the carriageway. The minibus was parked when the police arrived and was partly off the road almost opposite the actual point of impact.
24. The BMW was damaged. There was slight damage to the front bumper on the nearside; there was a dent in the wing, the wing mirror which was attached to the windscreen pillar was broken off. The windscreen was broken at the nearside; traces of hair were found in the door pillar and the windscreen. That was the evidence immediately available to the defendants.

The Retainer of the First Defendant of her investigation

25. The first defendant was an experienced personal injuries solicitor practising on her on account. She was retained by Mr Griffin to act for his daughter on 26th May. She got in touch with the police, obtained a copy of the police report and witness statements and made contact with Mrs Grant's insurers and their solicitors. She spoke to Police Constable Haines who attended the scene. He said that the police were not taking proceedings. He told Mrs Kingsmill that Mrs Grant said that when the girl changed direction to cross the verge it was a 90 degree turn.
26. In September 1988 a Mr MacMahon, an experienced legal executive, joined Mrs Kingsmill's firm and took over the conduct of the case. In January 1989 Mr MacMahon had a two-hour meeting with Mr Bailey during which they visited the scene. Mr Bailey's account as recorded in the attendance note dated 11th January is substantially the same as his witness statement. The attendance note records, and I take this from the judgment at page 28.

"He [Mr Bailey] was firmly of the opinion that the BMW driver was to blame for the accident in that she was speeding and she came too close to the kerb when being overtaken by the darker vehicle, mounted the kerb (which is only a grass verge) and struck his granddaughter, Victoria. Having seen the road and the area, I have every sympathy for that opinion and it seems to me that that is clearly how the accident could have occurred. Although, having assessed the evidence, it is clear that Victoria was standing in the driveway where she fell and not on the grass verge, because the driveway is level with the exact area where we parked the car when carrying out this inspection and where Mr Bailey confirmed he was parked at the time that the accident occurred."

27. That appears to me to be an endorsement or acceptance on the part of Mr MacMahon of Mr Bailey's account.
28. At the end of June 1989 Mr MacMahon left the first defendant's employment but before that on 13th June he had a meeting with the insurers to which I shall refer later. Mrs Kingsmill resumed the conduct of the case. On 3rd October she had a meeting with Mr Thompson of EL Murphy & Company, the insurer's solicitors. Mr Thompson's attitude was that they had a good chance of defeating the claim altogether and at the very least Victoria would be found 75 per cent to blame. However, insurers were prepared to offer £50,000 to dispose of the case at that stage. Mr Thompson appears to have accepted that the full value of the claim was around £500,000.
29. On the same day the first defendant telephoned Mr Griffin and told him of the offer.
30. In her witness statement Mrs Kingsmill made no mention of any advice tendered at that stage. But Mr Griffin said she told him of the insurer's assessment and that she agreed with it, all the evidence was against Victoria and that they would do well to accept it. The first defendant said they should ask counsel to advise since in any event this would be necessary in order to obtain the court's approval of the settlement. In her evidence Mrs Kingsmill said that she had advised acceptance.
31. Although application forms for legal aid had been sent for Mr Griffin, they do not seem to have been completed. There was considerable doubt whether they were eligible because of their means but at that time it had become known to the profession that the legal aid regulations would shortly be altered so that children could be assessed on their own means; and Mr Griffin also appears to have been aware of this.

Counsel's opinion

32. The third defendant was called to the Bar in 1970. He practised from Devereux Chambers and since 1976 specialised in personal injury cases. Instructions were sent to him on 5th October. They were brief. They recorded the claim was privately funded and the parents had very little money but were rearranging their finance with a view to qualifying for legal aid, but this was not certain.
33. The instructions indicated that the valuation of the case was in the region of £500,000. They set forth the insurer's argument and stated that instructing solicitors thought that that was probably right. Counsel was asked to advise "as to whether or not he believes that there are reasonable prospects of establishing a greater degree of liability on the part of the defendant" than that represented by the offer of £50,000.
34. Included with the instructions to counsel were the police report, Mrs Grant's two written statements, Mr Bailey's witness statement, police photographs and Mr MacMahon's attendance note of 11th June 1989.
35. The third defendant advised on 13th October. The opinion is short and clear. In paragraph 3 he records that Victoria had crossed the A272. This was not the effect of Mr Bailey's evidence. He said that he had signalled to her to stay where she was, he intended to go across the road and collect her when the road was clear. In paragraphs 4, 5 and 6 the third defendant set out very briefly the gist of Mr Bailey's witness statement and those of Mrs Grant. The next three paragraphs are important, and I read them, at page 303 of the bundle:

"7. The police investigation reveals that impact took place just to the right of the white line next to the stone kerb on the north-side footpath. This is inconsistent with the child being within the white line, as suggested by Mr Bailey and entirely consistent with the Defendant's account. It must be stressed that Mr Bailey's view of Victoria was blocked by at least one, if not two, cars immediately before impact.

8. In these circumstances it seems to me that the overwhelming likelihood is that a trial judge would find that Victoria turned into the road, giving the Defendant no opportunity to avoid a collision. There was no need for Victoria to leave the grass verge until she was ready to cross. In fact, her grandfather had signalled to her to wait where she was.

9. I cannot hold out any reasonable prospect of establishing any liability on the part of any driver for this accident."

36. In paragraph 11 he records that the legal aid was not available and that the offer should be accepted. A copy of the opinion was sent to the parents. In the light of the advice from the first and third defendants Mr and Mrs Griffin decided to accept the offer and so told Mrs Kingsmill on 10th November.
37. In February 1990 Mrs Kingsmill's firm merged with the second defendant's and the approval hearing before Master Turner was dealt with by a representative of that firm, DJ Freeman & Co. Of the documents then available neither the police report, including the sketch plan, the police photographs nor Mrs Grant's third statement were put before the master.

The pleadings

38. The re-reamended statement of claim made a number of allegations of negligence and breach of contractual duty of care. There were a number of allegations that the first defendants should have made, and the third defendants should have required, further enquiries before advising acceptance of the money offered. For example, it was alleged that a full proof should have been taken from Mr Bailey, an expert in accident reconstruction should have been instructed, medical evidence should have been obtained and so forth. The judge rejected these allegations and there is no appeal on that aspect of the judgment.
39. In paragraph 23F and 23G (page 57 of the bundle) under Particulars of Negligence it was said that the third defendant and first defendant were negligent in unreasonably rejecting the evidence of Mr Bailey, (g) failing to appreciate that Mrs Grant's statement to the police was self contradicting, and at paragraph 25(b) under Particulars of Breach of Contract and Negligence it is said that they failed to give any proper consideration to the plaintiff's position, and (c) failed to advise the plaintiff that the proposed settlement was against her interests.
40. By an amendment made on the seventh day of the trial subparagraph 23(gg) was added. That reads as follows:

"Failing to take into account adequately or at all that even on Mrs Grant's account of the accident given to the police in her statement on 25th May 1988 Mrs Grant should have observed

(i)the Plaintiff running along the footpath on the north side of the road;

(ii)the Plaintiff turning towards the road;

(iii) the Plaintiff running across the verge and into the road; and having so observed should have

(a) braked, steered or stopped and/or

(b) sounded her horn so as to avoid colliding with the Plaintiff."

41. There was a small amendment to paragraph 23(h), adding these words:

"Advising to the effect that the overwhelming likelihood was that the claim would fail and had no real prospects of success and/or"

- and this is how the original pleading plead -

"recommending settlement for £50,000 when he knew that the First Defendant's provisional assessment of the Plaintiff's claim was £500,000."

42. Defendants' counsel objected to the amendment by adding paragraph 23(gg). Lord Brennan submitted that the amendment should not have been allowed. I will return to this point later.
43. The judge appreciated the gist of the case was that the defendants, and particularly the third defendant, had wrongly evaluated the evidence. He said at page 38A:

"In the end the allegations against the Defendants really amount to wrongly evaluating the evidence. In particular, concluding that Mrs Grant's account was almost certain to be accepted over Mr Bailey's and failing to appreciate the potential weaknesses in Mrs Grant's own account and that it did not in any event rule out a finding of negligence against her."

The trial

44. At the trial Mr Bailey gave evidence on the lines of his witness statement. The evidence of the children in the minibus supported Mr Bailey on the crucial question of whether Victoria was standing at the verge for an appreciable time or ran across and into the road. Two accident reconstruction experts gave evidence. There was a certain amount of common ground between them. First, Victoria was struck a glancing blow by the front nearside bumper which threw her up hitting her head against the windscreen. Secondly, that the marks on the road showed that the impact was very close to the verge near the driveway where she was found (the marks are illustrated to the left of the white line in photograph No.7). Thirdly, that the damage to the car was inconsistent with Victoria having run into the road. Mrs Grant did not give evidence.

The judge's conclusion

45. As to how the accident happened the judge said at page 46:

"I find as a fact that the nearside of the BMW was probably above the white line so that the wing mirror would have been to the nearside of it. That gives a sufficient picture of the position in which this car was being driven on the road.

Since I accept the evidence that Mr Bailey had waved to Victoria to stay where she was and since there was no reason for her to disobey I do not find that she was actually in the process of walking across the road. I do find on the probabilities that she had one foot in front of the other either because, in common many other children, she found it difficult to stand absolutely still or in anticipation of Mr Bailey coming to take her across the road. In those circumstances I find it very difficult to decide whether the position in which she was standing waiting, namely, almost on the white line, should itself be regarded as negligent. Perhaps it is, but if I had had to decide I would exceptionally have assessed her contribution to the accident as small. Certainly no more than 25% but probably 15%. In the end, I do not believe that a precise finding matters because I believe that this action would have been settled.

I have asked myself how this accident happened. I believe the answer lies largely in the awkward contours of this stretch of road. Looking at the photographs one can see the extent to which the nearside kerb, as it would have been to Mrs Grant, moves significantly to the right. It is almost like a half right turn. That could explain how she came to be driving so very close to the kerb, just about on a collision course with Victoria. If she was distracted, either by oncoming or an overtaking vehicle, it could explain this tragedy. I think that is probably what happened."

46. I am not entirely clear whether the judge was actually making a finding of 15 per cent for contributary negligence or whether that was merely a possibility. On the question of Mrs Grant's negligence the trial judge said this, at page 32C:

"There was nothing to impede Mrs Grant's view of Victoria, indeed her own statement says that she had seen her running along the pavement. From the suggested point of impact, mentioned in the Police Report, it was clear that Mrs Grant was driving very close to the kerb. Her own statement says nothing of any precautionary or avoiding measures. For any driver to see a schoolchild at the kerbside not looking in their direction and to continue on a course which will only narrowly miss the child and without taking any precautionary or warning action is, in my judgment, reckless in the extreme. If Victoria was at the kerbside for some time, as Mr Bailey describes it, that is precisely what happened. Even if Victoria did take a step onto the road surface at the last minute, such a driver would inevitably be held 50% to blame and probably 75%. That is why I said the essential question was whether Victoria ran straight into the road. If Mr Bailey's account was even broadly correct, it would not matter, for the purpose of advising on the current offer, whether Victoria was hit on the kerb or just on the road surface. Significant negligence would be established against Mrs Grant either way. In the circumstances, the only escape route for the driver was if it could be established that Victoria ran in front affording her no opportunity to avoid a collision. On Mrs Grant's own account she saw Victoria running with her schoolbag along the footpath. She saw her change direction and run across the grass verge and into the road. This was not the case of an unseen child running from behind a parked vehicle. Even on Mrs Grant's account there remained the vital question whether a twelve-year old schoolgirl, carrying her schoolbag, could change direction, leave the footpath, run across an uneven and slightly uphill grass verge and into the road, so quickly as to afford the driver no opportunity to avoid her."

47. Those were the sort of considerations that presented themselves on the available material. It is clear that the reason the defendants reached the conclusion that the claim had no real prospect was because they thought Mr Bailey's account unreliable and that Mrs Grant's account would be accepted.
48. The judge then referred to paragraph 7 of the opinion and criticised the two reasons given by Mr Clark for rejecting Mr Bailey's evidence. He then dealt with some further reasons advanced by Mr Clark in evidence for casting doubt on Mr Bailey's evidence. He said at page 35:

"Although not mentioned in the opinion the Defendant told me in evidence that there were several reasons for regarding Mr Bailey as essentially unreliable. He was, understandably, very upset and emotional after this dreadful incident. His statement does appear to exaggerate the speed of the two cars he mentions. It appeared that he was wrong about Victoria staying strictly within the white line and also about the BMW hitting a tree after the incident and mounting the verge. As against that Mr MacMahon in his attendance note records Mr Bailey being firmly of the opinion that the BMW driver was to blame. There is no suggestion that he was in any doubt that Victoria did not run into the road as described by Mrs Grant. Nevertheless, I accept that the Defendants honestly formed the view they gave of Mr Bailey. However, that should have been balanced against the fact that there was no witness to support for Mrs Grant's account. Further, there were some grounds for doubting how good a witness she would make."

49. The judge then referred to the grounds for doubting Mrs Grant's reliability. He referred to her vagueness as manifested by the two statements and expressed the view that the oral statement recorded in the police report was inconsistent with the later account of Victoria running into the road. At page 36 he said:

"I cannot imagine that a driver who has suffered the dreadful experience of hitting a child who had run straight in front of her car would use any such expression as 'the girl stepped out in front of me.'"

50. He then dealt with the allegations that further investigation should have been made, and rejected them. At page 38 he continued:

"My own view of the material available to the Defendants may be apparent. There clearly was a basis for far greater optimism. Even on Mrs Grant's 'running account' and taking a common sense view of the circumstances, I would need some convincing that there was no opportunity for a driver who had already seen Victoria, to take some avoiding action. None was taken. That could suggest negligence or that the account itself was wrong.

However, it does not follow even if my view is the correct one, that there is no room for another, honestly formed. Less still, that such a view would be a negligent one. I have no reason to doubt that the Defendants considered the matter carefully. The contrary was not specifically suggested and not pleaded. This is not a case in which it is alleged that a readily accessible authority was overlooked or instructions or documents ignored. The charge is that the Defendants took far too pessimistic a view of the prospects on the material presented. That type of allegation is always difficult to sustain because the view or opinion a lawyer forms, involves judgment and experience and, in most cases which turn on evidence, there is room for more than one view - not to mention the inherent litigation risk. It seems to me, whether it be a difference between Barristers in chambers or minority speeches in the House of Lords, the one side necessarily does not appreciate or is not sufficiently impressed by the full weight of the other's argument. That is the nature of many problems lawyers face at all levels."

51. Pausing there, I would simply comment that the reference appears to relate to the common error of underestimating the opponent's case and not your own. The judge then referred to the law as set out in Saif Ali, to which I shall refer shortly, and continued at page 39:

"I consider the doubts concerning Mr Bailey's reliability were overdone. Probably because too much attention was paid to the question whether Victoria moved over the white line as opposed to whether she had been at the roadside for some time. On the latter point – the essential theme of Mr Bailey's account – he was adamant and, unless lying, likely to be reasonably convincing. I believe the points against Mrs Grant were underestimated, particularly the effect of her oral account at the scene. I can find nothing in the contemporaneous documents or the opinion that convinces me real consideration was given to the question of Mrs Grant's liability for failing to take precautionary measures, even accepting her own account. The Third Defendant explained in evidence that he did consider the point and why he dismissed it. Admittedly, he was not suggesting that he had direct recall after so many years and I suspect that aspect of the matter was not fully appreciated. The natural reading of the opinion is that Mrs Grant says she had no opportunity to avoid Victoria and because her account will be accepted, the case will fail. That does not suggest critical consideration of Mrs Grant's own account. But, if, as is probable, the question was considered but misjudged or too readily dismissed, in the sense that such merit as it has was not fully appreciated, that is not negligence.

As may be apparent, it is difficult to prevent hindsight intruding. After careful investigation the Police did pot prosecute Mrs Grant. Clearly the case could have been lost on the material available and £50,000 was a significant sum of money to Mr and Mrs Griffin, albeit a nominal offer in the context of Victoria's injuries."

52. I must also refer in this connection to a later passage in the judgment where the judge is considering the value of the chance. At page 47 he said this:

"As to the prospect of settlement, I must consider the situation as it would have appeared to each side, if Mr Griffin had proceeded. I cannot escape expressing a view as to the advice Mr Griffin should have received, albeit in general terms, because it is one of the factors to be considered in weighing the prospects of settlement. Also, I may hereafter be held to be wrong in my view that the advices were not negligent. I have already observed there were grounds for taking a more optimistic view of undermining Mrs Grant's Police statement and taking a less pessimistic view of Mr Bailey's on the important question of the 'running' account. I find that the advices should have reflected those matters and identified the relevant issue more clearly. At the material time the advice would inevitably have been guarded because of the basic fact that the only two eye-witnesses contradicted each other. However, reasonable to good prospects of establishing at least 25% liability against Mrs Grant, should have been identified. Much as I applaud the Third Defendant's general view that opinions should be clear and firm, there are cases which cannot so easily be predicted at an early stage and this was one. If Mr Bailey, who after all was a reputable witness with many years' driving experience and a responsible position in life, stood firm on his basic premise, the case would have been won and a very large award of damages would have followed. Mr Griffin should have been given the option of taking proceedings some way and progressing further inquiries instead of being told by the First and Third Defendants, in effect, it would be a waste of money, he would lose. The following year the Legal Aid changes, everyone anticipated, came in and I find that Legal Aid would have been obtained in this case. It would initially have been limited, but would have permitted proceedings to be taken forward. The probabilities are that the matters that came to light for this trial would then have emerged."

53. I confess to having some difficulties in reconciling this expression of opinion as to what the opinion should have contained - but did not - with the view earlier expressed that the defendants acted honestly and carefully, and the judge was not satisfied that negligence had been proved. Lord Brennan boldly asserted that the judge did not mean what he said at page 47.

The case in this court

54. Before dealing with the appeal itself it is convenient to deal with the cross-appeal on the question of the pleadings.
55. I have already indicated that this matter arose on the seventh of the trial during the cross-examination of the third defendant. He took the point that he had not come to meet a case that even on Mr Grant's own account there was a reasonable prospect of establishing liability because there would have been an appreciable time, during which Victoria ran uphill and across the grass verge, for her, Mrs Grant, to take avoiding action by braking, swerving or sounding her horn; that was not pleaded. While it is true that it was not specifically pleaded, it had formed part of Mr Purchas' opening skeleton argument. The main argument on negligence was that further investigation should have been made and a wrong assessment of the strength of Mr Bailey's and Mrs Grant's evidence was made. But as a subsidiary argument this appears in paragraph 6(5) of the skeleton:

"Even on Mrs Grant's account in the time which it would have taken Victoria to cross the grass verge Mrs Grant should have been able to take significant avoiding action."

56. This arguments was clearly appreciated by the judge (see the passage at day 1, page 36, line 37 where Mr Purchas confirmed that that was his case). Moreover a great deal of the expert evidence in the reports of Mr Sorton on behalf of the claimant disclosed to the defence this question was explored. It was also dealt in the report of Dr Ninham, the expert who appeared for the defendants.
57. Lord Brennan submitted that these reports only went to the issue of causation. I cannot accept that. If objection was to be taken on pleadings, it is a pity it was not taken at the outset. Equally the claimant's counsel should have appreciated it was not so covered and applied to amend at the outset. Mr Purchas submitted that the main allegation was sufficiently clearly made that the advice to accept £50,000 was quite wrong and that this was merely part of the evidence on which that allegation was based. Permission to amend is a matter for the discretion of the trial judge. This court should only interfere if it is satisfied that the judge has erred in principle or injustice has resulted. Lord Brennan, not lacking in courage, submits we should disallow the amendment. He cited well-known dictum of Lord Griffiths in Ketteman v Hansel Properties Ltd [1987] AC 189 at page 220. But that was an entirely different case with a late amendment during final speeches to plead a limitation defence while the whole trial had been conducted on the basis that limitation was not an issue. In my view it has no bearing on this case.
58. The principles upon which amendments are allowed have been well known since Copper v Smith (1884) 26 Ch D 700 and Clarapede v Commercial Union (1883) 32 WR 262 where Brett MR said at 263:

"However negligent or careless may have been the first admission, and however late the proposed amendment, the amendment should be allowed if it can be made without injustice to the other side. There is no injustice if the other side can be compensated in costs."

59. That is the general principle and I see no reason why it should not apply here. Lord Brennan seeks to advance the argument in the absence of a transcript, which his clients have not obtained, of the discussion as to what took place between about 2.00 and 3.00 on the seventh day of the trial relating to the question of amendment – though we have now been provided with the claimant's solicitor's note of the discussion.
60. Having regard to the matters to which I have already drawn attention in the claimant's opening skeleton, the judge intervention on day 1 and Mr Purchas' confirmation that it indeed form part of his case, the expert reports and the evidence, I should be astonished if the judge had disallowed the amendment. In my view Lord Brennan's submission, which appears to have been based upon the proposition that it was unfair to the third defendant to have to deal with this case for the first time in cross-examination, is untenable. He was at first sight on somewhat firmer ground when he submitted that if the argument had not occurred to claimant's counsel - and he submitted that it has not, since it was not in the statement of claim which had been twice previously amended – this supports his principal submission that what the third defendant did or did not do did not amount to negligence. To that issue and the appeal I now turn.

Were the defendants negligent in the advice they gave?

61. The standard of care required of barristers and solicitors is now well settled. It is sufficient to cite only from the speech of Lord Diplock in Saif Ali v Sidney Mitchell & Co [1980] AC 198 at 220D:

"No matter what profession it may be, the common law does not impose on those who practice it any liability for damage resulting from what in the result turn out to have been errors of judgment, unless the error was such as no reasonably well-informed and competent member of that profession could have made."

62. At the same page subsequently, he said this:

"If subsequently a barrister is sued by his own client for negligence on what he advised or did in the particular case, he has the protection that the judge before whom the action for negligence against him will be tried is well qualified, without any need of expert evidence, to make allowance for the circumstances in which the impugned decision fell to be made and to differentiate between an error that was so blatant as to amount to negligence and an exercise of judgment which, though in the event it turned out to have been mistaken, was not outside the range of possible courses of action that in the circumstances reasonably competent members of the profession might have chosen to take."

63. The circumstances in which barristers and solicitors have to exercise their judgment vary enormously. On the one hand decisions have frequently to be made in court with little time for mature consideration or discussion. That is a situation familiar to any advocate. It is one in which it may be very difficult to categorise the advocate's decision as negligent even if later events proved it to have been wrong. Or in a very complex case it may be that in advising settlement too much weight is given to some factors and not enough to others. Here again a difficult judgment has to be made; and unless the advice was blatantly wrong, ie such as no competent and experienced practitioner would give it, it cannot be impugned and the prospects of successfully doing so would seem very slight.
64. But that is not this case. This was essentially a simple case, though one of great importance for the claimant and her family. It was a case where the advice could be given after careful consideration. It was a case which was typical of many personal injury cases. Where if the claimant's evidence, or that on his or her behalf is accepted, the claim will succeed. If the defendants' account is accepted the claim will either fail or there will be a substantial contributory negligence. Where there is such a conflict it is very difficult, if not impossible at an earlier stage of the case, as this was, to be sure which evidence will be preferred. All that can be done is to point out what I have just said and then make some attempt to evaluate the strengths and weaknesses of the conflicting accounts. It would take very cogent reasons indeed to say that it was overwhelmingly likely that Mrs Grant's account would be preferred and Mr Bailey's rejected, and consequently the claim had no reasonable prospect of success.
65. On the face of it it is surprising result that advice which turns out to be one hundred per cent wrong in such a case was not negligent. The interested layman, or our old friend the officious bystander, might well ask "if the lawyers can be so wrong and they are considered to have acted in a way that competent and experienced lawyers could be expected to advise – why do we need lawyers?" I confess that I have listened with increasing amazement and some dismay to the submissions of counsel for the defence that the advice given here complied with the proper standard of care and competence. If that is so the profession should be ashamed that its standards are so low. I do not accept for one moment that this was the sort of advice that competent and experienced solicitors and counsel should have given. The judge thought that it was honestly and carefully given. There has never been any question about the honesty, but I am not at all clear how the judge arrived at the view that it was carefully given if he had correctly applied the law. It is not enough that counsel and solicitors have read the papers and given clear advice which could be understood. In a case such as this logical and sensible reasons have to be given for rejecting the favourable evidence of Mr Bailey. If the reasons do not bear examination they are not such as can be expected from a competent and experienced practitioner.

The third defendant's liability

66. It is convenient first of all to consider the liability of counsel. Mr Purchas submitted that the reason given by the third defendants in paragraph 7 of his opinion for rejecting Mr Bailey's evidence are untenable. I agree. The fact that the police considered the point of impact was 15 inches into the road and was 3 inches over the white line, did not undermine Mr Bailey's evidence. It was common ground that she was in at that position; the critical conflict was how she got there and how long she had been there. The point of impact, even if it was where the police said it was (and at the trial it was common ground that this was wrong) was entirely neutral; it was consistent with Mr Bailey's account. It could be said to be consistent with Mrs Grant's account, at least her first oral statement and possibly also the second version.
67. The second reason given by the third defendant was that Mr Bailey's view was blocked immediately before impact was neither here nor there; the crucial part of his evidence was that she had been standing there for a considerable period of time; the fact that he could not see her for the split second of the accident itself in no way detracted from his account. Those are the only reasons which were given in the opinion.
68. In his evidence the third defendant said that there were three more reasons for thinking Mr Bailey's evidence was unreliable. First, when he visited the scene with Mr MacMahon he said that he had thought that the BMW had run into a tree before it came to rest. This was only a suggestion; it never appeared in any witness statement; and at the meeting with Mr MacMahon Mr Bailey agreed that he was probably wrong. There was nothing in this point.
69. Secondly, while in his witness statement he said that Victoria was standing in the gutter between the kerb and the white line he told Mr MacMahon that the "driver came too close to the kerb when overtaken by the darker vehicle and mounted the kerb (which is a grass verge) and struck Victoria". That is what the attendance note records. Again this does not appear in any statement. In my view there is nothing in the point. The examination of the police photographs (for example No.19) show that there is no raised kerb at the material point: the grass verge slopes down to a line of kerb stones that are more or less level with the road surface. This was not a material inconsistency and in any event it did not impinge on the crucial aspect of his evidence.
70. Thirdly, Mr Clark said that he took account of the traumatic effect the accident had had on Mr Bailey. He thought that he subconsciously blamed himself in some way for the accident. No doubt he was very upset. But that does not necessarily mean he is unreliable. As the judge commented, at page 40, unless he was lying he was likely to make a convincing witness. There could not really be any room for mistake on Mr Bailey's part. It was not really a question of reliability: he was either telling the truth that she had been standing in the gutter for an appreciable time or he was lying - a most unlikely explanation, especially in the light of his two consistent written statements.
71. Finally, it was suggested that Mr Bailey exaggerated the speed of the oncoming cars; at trial he said the BMW was going at about 30 to 40 miles an hour which he considered was much too fast for negotiating the junction. It would not be in the least surprising if he did exaggerate the speed of the BMW in his statement. It is notoriously difficult to estimate the speed of oncoming vehicles; after an incident as dramatic and terrifying as this it is entirely understandable that Mr Bailey should have the impression of excessive speed. Moreover on any showing the overtaking vehicle must have been going far too fast.
72. In my judgment there is no valid or proper reason given by the third defendant either in his opinion or evidence for questioning the reliability of Mr Bailey, let alone rejecting his evidence out of hand.
73. Mr Purchas also submitted that the reliability of Mrs Grant's account was not properly assessed. So far from being overwhelmingly likely that it would be accepted, there were very good grounds for thinking it would not be. Her oral statement to the police was inconsistent, as the judge said, with her written account of Victoria running along the pavement and across the verge into the road. Moreover, the third statement shows that the recollection was wholly vague and unreliable. These statements would have been a gift to any competent cross-examiner. To my mind they were typical of a driver who is not keeping a proper lookout or paying attention and is suddenly confronted with a situation which she has failed to appreciate.
74. Three further grounds were advanced by counsel to justify the advice to accept £50,000. Lord Brennan submitted that the fact that the case was privately funded and the parents had limited means was a relevant consideration. I do not agree: what the parents wanted was to be advised of the prospect of success, and in particular whether they had reasonably good grounds for getting more than £50,000. It was for them to decide what money they would risk to achieve it. In any event with proper advice Victoria would have been eligible for legal aid when the regulations were altered as everybody knew they shortly would be.
75. Secondly, Lord Brennan submitted that the fact that the police were not going to bring a prosecution supported the defendant's view of the case. Again I do not agree. Where there is a conflict of evidence and no independent witness, it would be understandable that the police or prosecution service might not have the confidence of satisfying the criminal burden of proof. A vast number of running-down cases succeed although there is no prosecution: they also succeed on occasions when the defendant driver has been acquitted of a criminal charge.
76. Mr Jeffreys submitted that the defendants were entitled to take get comfort from the police report and the statement of Police Constable Waterman, an experienced accident police inspector. What is relied upon is the tick in the box against the rubric for pedestrian location "in carriageway crossing elsewhere" and in the following paragraph of PC Waterman's witness statement at page 372:

"The marks left at the accident scene together with the resting position of the accident vehicle and casualty, indicate that the BMW car was being driven eastwards on the A272 when its nearside has collided with the pedestrian, crossing the main road from the north to south. The child has been struck by the nearside front of the vehicle and appears to have been lifted onto the nearside of the vehicle, striking her head on the windscreen in the area of the nearside 'A' pillar."

77. That is not primary evidence but a conclusion drawn by the policeman. I am not at all sure that this was intended to mean that she was actually moving across the road when she was struck, as opposed to being in the road prior to crossing. But assuming that it does, it is not supported by any reasoning because the marks on the road and the damage to the vehicle are equally consistent with Mr Bailey's account and at the trial the expert agreed upon this.
78. I cannot for one moment accept Mr Jeffrey's submission that counsel was entitled to accept the conclusion uncritically when it was quite inconsistent with Mr Bailey's account.
79. For these reasons I have no doubt that the third defendant's advice was negligent and I cannot agree with the judge that it was such that a competent and experienced practitioner might give.
80. I should however deal briefly with the alternative argument, that even on Mrs Grant's account of Victoria running into the road, there was a reasonable prospect of establishing primary liability and this was something which should have been recognised and relied upon as grounds for rejecting the offer of £50,000.
81. The judge had heard a good deal of evidence from expert witnesses on this point. It was Mr Sorton's evidence that it would take Victoria two seconds to traverse the grass verge from the moment she changed direction and that was sufficient time for Mrs Grant to stop if she was travelling at 30 miles an hour; if she was travelling at 40 miles an hour, she would nearly have stopped; in any event the speed of impact would have been much slower so that the devastating injures would not have been caused. This is the sort of issue that commonly arises in cases where children run or bicycle into the road. The question is whether there is sufficient time for a careful driver to avoid or minimise the impact. It is one which ought, in my view, to have occurred to the third defendant, and he ought to have dealt with it in his opinion. On the information available to him at that time I do not think he could give a confident opinion either way, but it was certainly not an argument that could be dismissed out of hand without even any reference to it.
82. The judge, rather charitably it seems to me, thought that the third defendant probably had considered the point, but did not think there was anything in it. I find difficulty in accepting this. It was a serious argument. In my view it should have been adverted to in the opinion.
83. Lord Brennan's principle submission on this aspect of the case was that since it had never occurred to the pleaders of the statement of claim it was not something that could be categorised as negligent; a responsible body of other counsel, he submitted, cannot have thought there was anything in the point. I do not accept this submission. It was a line of argument which should have occurred to any competent practitioner in his field. Moreover, it was an argument advanced by Mr MacMahon at his meeting with insurers on 13th June 1989 (see core bundle page 320), and it was his impression that the insurers appeared to accept the argument.
84. Mrs Kingsmill's evidence on this point is instructive. On day 5 she is asked by Mr Purchas in relation to her discussions with Mr Thompson:

"Q. Did you make the point that even on Mrs Grant's evidence Victoria had been running down the pathway and had then crossed the verge and that Mrs Grant would have had adequate warning to see what was happening? A. I am sure that I would have put this case in its best possible light when I was negotiating with the other side.

Q. Well, having read the papers, that is clearly a point you should have made, is it not?

A. I would hope so.

Q. It clearly was a point you should have made?A. (No audible reply).

Q. Did you make the point that if Mrs Grant had actually seen what she says she saw, it was strange that there were no emergency braking marks on the road surface? A. That may have come into the discussion. I would have hoped so.

Q. ... A. ...

Q. That is clearly a point that you should have made, is it not? A. It may well have been a point I made."

85. At page 52 - after referring to Mr MacMahon's attendance note of 13th June Mr Purchas - asked this:

"Q. Now, there are insurers, according to Mr McMahon, appearing to accept that argument. Why did you not instruct or send a copy of this memorandum to Mr Clarke when you instructed him? A. Peter Clarke was quite capable of drawing that argument out of the papers that he had in front of him. He didn't need ----

Q. ...A. -- me to spell it out."

86. As I have already pointed out this alternative case featured in Mr Purchas' opening skeleton; it was adverted to by the judge and confirmed on day 1, and much of the expert evidence was directed to it. I think Mr Purchas was wrong in thinking it should not be pleaded; but there is no basis in my view for thinking it was an afterthought. It was the sort of point which should have been apparent to anybody familiar with this type of case.
87. The point is of subsidiary importance because it is only supplementary to the main argument.
88. For all these reasons I would hold that the judge was wrong not to be satisfied that the third defendant was negligent.
89. Finally, it was submitted, though I think without much enthusiasm, that because Master Turner, who has himself been an experienced personal injury practitioner approved the settlement it showed that the advice was such that a reasonable competent practitioner could give. I do not accept this. For a start several of the important documents were not before the master, including the police report - which contained Mrs Grant's first account - nor her third statement of August 1998, nor the police photographs. It is impossible to say what view the master would have taken if he had seen these important documents. But in any event a judge or a master approving a settlement is greatly influenced by the view of solicitors and counsel where as in this case they were known to be experienced. I do not think it was at all surprising that in the space of a relatively short appointment that Master Turner failed to spot the fallacious argument for rejecting Mr Bailey's argument, or a gross overestimation of the strength of Mr Grant's account.
90. There is one further aspect of the third defendant's evidence upon which I should comment. Despite the clear wording of his opinion to the effect that this claim had no prospect of success, for a considerable part of his evidence he insisted that all he meant was the claim had a less than 50 per cent chance of success. At one stage he said it might have been as high as 45 per cent. Eventually he resiled from this stance and accepted that his opinion meant what both Mrs Kingsmill and Mr and Mrs Griffin understood it to mean, namely that the case was really hopeless. Perhaps it does no more than illustrate the confusion in Mr Clark's mind; if it really represented his view that the chances of success were just less than 50 per cent that might conceivably have been a view which could not have been castigated as negligent; but if so, he was negligent in not making this clear. It seems if he had done so the offer would not have been recommended or accepted.

The case against the first defendant

91. Unlike Mr MacMahon who seems to have been impressed by Mr Bailey's evidence and also by the argument I have just referred to, Mrs Kingsmill also apparently formed the view that Mr Bailey's evidence was likely to be rejected and therefore the claim would fail.
92. I have been unable to find in her evidence the reasons for forming this view. In her evidence in chief the only reason advanced appears at day 5, page 2, where she said in her evidence in chief:

"Q. I am not going to ask you to refer to it myself in detail, but, having read it, what conclusion, if any, did you reach as to this plaintiff's prospect? A. Well, it was a fuller than usual sort of police report.

There were good statements, there was a good set of photographs and there was a good sketch. There was conflicting evidence and I was concerned really that the evidence in favour of the plaintiff was from her grandfather and therefore perhaps was not as independent, so to speak, as it might have been. I thought that it was going to be a very difficult case, having read the police report."

93. The fact that Mr Bailey could not be regarded as an entirely independent witness is no reason for rejecting his evidence especially when the only other witness was Mrs Grant who was also not independent. Later, in answer to Lord Brennan (day 5, page 26, line 47) in cross-examination she said that as soon as she read the police report she formed the view that it was a very difficult case. She did not elaborate. In my opinion she was not justified in taking that view for the reasons that I have already explained.
94. As to Mrs Kingsmill's evidence when she was cross-examined by Lord Brennan she said she did not see any substantial difference between the oral statement to the police and the written version. But later when cross-examined by Mr Purchas (day 5, page 47) she said this:

"Q. Did you point out the inconsistency between what she had originally said about the child stepping out in the road and later saying that the child ran out in the road? A. I don't recall whether I did or not, but I hope I did.

Q. Do you recall whether he had any explanation or any answer to that? A. I don't recall. One tends to have these sort of conversations in a relatively broad brush sort of way. But I don't honestly recall."

95. That to my mind implied acceptance that there was inconsistency in the two statements which, in my view, was plain.
96. The first and second defendants have not sought to shelter behind the third defendant's opinion, and rightly so. In my judgment the first defendant's recommendation to accept £50,000 was negligent. It flowed from an unjustified rejection or assessment of Mr Bailey's evidence and the failure to appreciate the weakness of Mrs Grant's evidence and a failure to appreciate the alternative line of argument based upon Mrs Grant's own version. An experienced and competent personal injury solicitor ought not to have recommended acceptance of the offer. The limited means of the parents and the "take it or leave it" attitude of Mr Murphy, go nowhere near justifying her advice.

Causation

97. The judge dealt with the matter shortly. At page 41 of the judgment he said this under the heading "Causation".

"Victoria's injuries were of maximum severity and clearly future care would be necessary. She would be unable to fend for herself in life. Mr Griffin was aware of the prospect of obtaining Legal Aid as a result of imminent changes to the Legal Aid Rules. I have no doubt that his witness statement is correct where he says he would have pressed on if he felt there was any chance. No one seriously suggested the contrary to him. Clearly the Plaintiff has lost the chance of a better settlement or success at trial."

98. He then in the next section of his judgment went on to assess the value of the chance. Mr Jeffrey QC submitted that the judge erred in law and that he failed to find that the lost chance was a substantial one and that he should have done so before he could be satisfied on causation. He relied on my judgment in the case of Allied Maples Group Ltd v Simmons & Simmons [1995] 1 WLR 1602. At page 1611 I said:

"(3) In many cases the plaintiff's loss depends on the hypothetical action of a third party, either in addition to action by the plaintiff, as in this case, or independently of it. In such a case, does the plaintiff have to prove on balance of probability, as Mr Jackson submits, that the third party would have acted so as to confer the benefit or avoid the risk to the plaintiff, or can the plaintiff succeed provided he shows that he had a substantial chance rather than a speculative one, the evaluation of the substantial chance being a question of quantification of damages?

Although there is not a great deal of authority, and none in the Court of Appeal relating to solicitors failing to give advice which is directly in point, I have no doubt that Mr Jackson's submission is wrong and the second alternative is correct."

99. Dealing then with a case of where a third party is involved, and the present case is where the loss of a chance depends upon the action of third parties, either insurers in making an offer to settle, or the court in deciding the case, at page 1614 I said:

"In my judgment, the plaintiff must prove as a matter of causation that he has a real or substantial chance as opposed to a speculative one. If he succeeds in doing so, the evaluation of the chance is part of the assessment of the quantum of damage, the range lying somewhere between something that just qualifies as real or substantial on the one hand and near certainty on the other. I do not think that it is helpful to seek to lay down in percentage terms what the lower and upper ends of the bracket should be."

100. With the air of a conjurer producing a rabbit out of a hat, Mr Jeffreys submitted that since the judge did not state in the passage on causation that there was a substantial chance the claimant had failed on causation.
101. That rabbit, however dexterously produced, will not run. The whole of the next section of the judgment is devoted to a chance of success. The judge determined not only that there was a substantial chance, but that it was two-thirds of the full value. The semantic objection that this does not appear in the section of the judgment headed causation, is in my view, absolutely without merit.

The value of the loss of the chance

102. Mr Purchas submitted that in assessing the value of the lost chance at only two-thirds, the judge seriously underestimated it. One has to approach this aspect of the case on the basis that if the offer of £50,000 had been rejected, the case would have been properly prepared for trial and there would have been available to the claimant the evidence of the children in the minibus which supported Mr Bailey, and the evidence of the experts which established that the point of impact was near the driveway, that she was not running when she was hit and that the marks on the road indicated that one of Victoria's feet was inside the white line even if the other was over it. That being so, Mr Purchas submits, the claimant's lawyers would have been confident that Mrs Grant's account would not have been accepted and therefore the claim would succeed. Moreover, it was unlikely that any court would find this 12 year-old girl guilty of contributory negligence for standing where she did. Even if such a finding were made, the amount of contributory negligence would have been very small. The degree of blame worthiness on her compared to that of Mrs Grant, whose driving the judge described as reckless, was minimal. In those circumstances the judge should have assessed the value of the chance at 85 per cent. It would be reasonable, he submits, to make some deduction for the litigation risk that something might go wrong and a chance of a finding of contributory negligence. But to discount the chance by one-third is, he submitted, excessive.
103. In my judgment there is much force in this submission. But for the defendants Mr Jeffreys submitted that the judge had overestimated the value, because he wrongly drew the inference that Mrs Grant's insurers would have realised that she could not be called to sustain her account and therefore they would have been anxious to settle on the best terms they could. The judge drew the inference that Mrs Grant would not have been called, because she was not called at the trial and no explanation of failure to call her was given. He concluded, not unnaturally, that since the present defendants did not call her they concluded that she could not assist their case, so the original insurers would have reached the same conclusion. Mr Jeffreys says this is inference upon inference and not justified. Even if the inferences drawn by the judge were not justified, and I am by no means satisfied they were not, it seems to me that there were equally cogent reasons for thinking that Mrs Grant's insurers would not have been able to call her namely that the expert evidence completely undermined her account that Victoria ran into the road.
104. If the case had gone to trial it would have succeeded and, as I have said, I do not think there would have been a finding of contributory negligence. After all the onus of establishing this would have been on the defence, and with her account rejected there was no basis for thinking Victoria moved in front of the car. Most judges would have been sympathetic to this gravely injured child. But the judge thought that insurers, once they realised the weakness of their position, would have sought to settle the claim on a less than full liability basis. In spite of Mrs Kingsmill's evidence that Mr Thompson was a "take it or leave it man", I think this is probably right. The judge thought that the claimant's advisors would approach such a settlement in a state of "cautious optimism". I think this underestimates the situation. I think they would have been confident of success, but have recognised that there was a risk of a finding of contributory negligence and also have made some discount for the uncertainties of litigation.
105. But for one factor I would have been inclined to accept Mr Purchas' figure of 85 per cent. We have been shown some evidence of Mrs Griffin. It is plain that she was much more cautious in her approach than her husband. It seems to me that if an offer approaching the full value of the case had been made it would have been hard to turn down. Accordingly I would assess the loss of a chance at somewhat less than Mr Purchas, namely at 80 per cent.
106. In my judgment there should be judgment for the appellant against both respondents on the basis of 80 per cent of the full value of the claim.
107. LORD JUSTICE KAY: I agree with the conclusions and reasoning of my Lord, Sir Murray Stuart Smith, and would only want to deal with one other aspect of this matter. In the course of argument Lord Brennan suggested that a conclusion of negligence against the third defendant in this case would have far reaching consequences for the Bar. First, he submitted that it would discourage the giving of robust advice; and secondly, that it would require counsel to deal with every piece of evidence in every opinion just to demonstrate that he had read and considered them.
108. Litigants do require clear advice. There is little point in obtaining the opinion of counsel if counsel is not prepared to give the client the benefit of his experience and expertise. Nothing in the conclusions I have reached in this case would discourage the giving of such robust advice provided it was given with proper care. Indeed an indecisive opinion in circumstances which would lead a reasonably competent practitioner to give clear and positive advice might in itself be viewed as negligent.
109. As to the other point which was suggested by Lord Brennan counsel need do no more than refer to those parts of the evidence in their opinion that justify their conclusion on material matters. The absence of a reference to a piece of evidence clearly does not in itself lead to any inference that it has been overlooked. If, however, that evidence is such that it would appear to be against counsel's conclusion then a failure to explain why the point had been rejected may lead to a conclusion that insufficient or inappropriate weight has been given to the point. This, in my judgment, represents nothing radical or new in the approach to be adopted by counsel. I do not accept that this judgment will require any alteration of practice from the Bar; every case has to be viewed on its facts, and for the reasons given I reach the conclusion that there was negligence in this case.
110. LORD JUSTICE SCHIEMANN: I agree with both judgments that have been delivered and only add a few words on the substantial point. Counsel's advice here contained in paragraph 9 the sentence:

"I cannot hold out any reasonable prospect of establishing any liability on the part of any driver for this accident."

111. That view was apparently shared by the defendant solicitor. That sentence means on its face that the prospects of success were so negligible that they could and should be ignored. That is the most natural interpretation of that sentence.
112. I recognise that there is a continuum between claims with negligible prospects of success, through claims with some prospects of success until one reaches claims which are almost certain to succeed. In my judgment, in common with my Lords, the present case was well away from the negligible prospects of success end of the continuum.
113. Counsel and solicitors in the present case on the material before them should have advised that the prospects were not negligible, and they were negligent in so doing. Therefore this appeal will be allowed in part.
114. As to the form of order the judge's order is set out in paragraphs 7 and 8. What is asked for in the notice of appeal is set out on page 2 of the bundle. As it seems to me, on the judgments which have been delivered, it would be right to make an order as suggested in the notice of appeal, slightly amended, and order that the following findings and consequent parts of the order in favour of the first, second and third defendants be discharged and amended as follows: one, that the plaintiff's action was an abuse of process ((a)(ii) of the original order). Two, that the defendant had not been in any way negligent or in breach of duty ((b) of the original order). Three, that there should be an order made in favour of the plaintiff that the plaintiff's action was not an abuse of process, but that the defendant had been negligent. Four, that the chance of success would have been 80 per cent (a variation of (d) in the original order).
(Appeal allowed in part, with costs; permission to appeal to the House of Lords on behalf of the first, second and third defendants refused).