England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRIGHTON COUNTY COURT
His Hon. Judge Mitchell
(Sitting at Bromley County Court)

		Royal Courts of Justice Strand, London, WC2A 2LL
		18th November 2004

Lord Justice Ward :

The issues

1. The issues which arise in this case are whether the respondent solicitors were negligent in their conduct of litigation for their client, the appellant, and if so how that affects their entitlement to their fees for the work done and whether the appellant has any sustainable counterclaim for damages.

The background

2. The background is this. The appellant's father was the secure tenant of a property in Cuckfield in Sussex let to him by the Mid-Sussex District Council. In about 1990 the council transferred its interest to a housing association now known as New Downlands Housing Association Ltd. and by operation of s. 38 of the Housing Act 1988 Mr White's tenancy became an assured periodic tenancy within the provisions of that Act. There was as a consequence a restricted right of succession of the tenancy which would have excluded his son from taking its transfer. Mr White had, however, a right to buy the premises pursuant to the provisions of Part V of the Housing Act 1985. On 21^st May 1999 he died intestate. No letters of administration were taken out.
3. It appears that the appellant endeavoured to assert a claim for a transfer of the tenancy to him based upon his having lived there for twelve months prior to his father's death. That was, however, not accepted by the Housing Association which, on 12^th January 2000, served notices to quit on both the appellant and the Public Trustee. Service on the Public Trustee was made pursuant to s. 18 of the Law of Property (Miscellaneous Provisions) Act 1994 which provides that a notice affecting land which would have been authorised or required to be served on a person but for his death shall be sufficiently served before a grant of representation has been filed if it is addressed to the personal representatives of the named deceased and left at or sent by post to his last known place of residence and a copy similarly addressed is served on the Public Trustee. The letters from the Housing Association's solicitors addressed to the appellant, to his brother and to the personal representatives of his late father were in common form and stated:-

"We enclose by way of service upon you:

(1)Notice seeking possession of [the property],

(2) Notice to quit [the property] which notice is served without prejudice to the notice seeking possession referred to in paragraph 1 above."

4. The notice seeking possession was served in accordance with the Housing Act 1988 informing the addressee that the landlord intended to apply to the court for an order requiring him to give up possession, the landlord seeking possession on Ground 7 of Schedule 2 to the Housing Act 1988 namely that the tenancy is a periodic tenancy which has devolved under the will or intestacy of the former tenant and the proceedings for the recovery of possession are begun not later than twelve months after the death of the former tenant.
5. The notice to quit was in more conventional form giving notice to deliver up possession on the named day, 1^st March 2000, or on the day on which the complete period of the tenancy expires next after the end of four weeks from the service of the notice.
6. On 19^th May 2000 the Housing Association issued their summons for possession against the personal representatives, the appellant and his brother. His brother plays no part in the events which follow. The claim recited the death of the tenant but pleaded in paragraph 5 that the tenancy, being part of his estate, subsisted subject to the statutory trusts until such time as it was lawfully terminated by the court. The notice relying on Ground 7 was relied upon and it was asserted that the notice had been registered as a notice affecting land pursuant to the Public Trustee (Notice Affecting Land) (Title on Death) Regulations 1995. The claim did, however, further allege that notice to quit had been served. Evidence was filed to confirm that both notices had been duly registered at the Public Trustee Office.
7. The appellant retained the respondent firm to act for him in that litigation. Counsel was instructed and his instructions included the papers to which I have referred. According to an attendance note made by the solicitors, counsel advised that Ground 7 upon which the Housing Association was relying to recover possession was a mandatory ground giving the court no room for any exercise of discretion in the appellant's favour. Counsel needed further information to consider whether there was any defence of estoppel to the possession claim but estoppel was always a defence of last resort and he doubted how it would work in this case. The appellant stated that he was keen to use the estoppel defence. Counsel advised that he would give further consideration to the question whether it was worth it at that stage to serve notice exercising the right to buy.
8. On 15^th June counsel advised in writing that he had seen nothing on the part of the Housing Association which would give rise to any form of estoppel thereby preventing it from obtaining possession on Ground 7. Upon proof of the necessary facts, the Housing Association would be entitled to an order for possession. Although the appellant had a right as a qualifying successor to exercise a right to buy the property, the making of a possession order would defeat that right. Nevertheless the right ought to be exercised and an application made to have the possession proceedings adjourned pending the outcome of the exercise of the right to buy. Counsel advised that he had his misgivings as to the prospects of success of such an application but it represented the appellant's only hope of exercising the right to buy.
9. A defence was settled accordingly admitting paragraph 5 of the claim but putting the Housing Association to proof of the service of each of the notices referred to and their validity and effect. By his counterclaim the appellant sought a declaration that he was entitled to exercise the right to buy in accordance with notice he had given on 16^th June 2000.
10. This tactic appeared, initially at least, to be successful in that on 15^th August 2000 the district judge ordered the trial of a preliminary issue as to whether or not the appellant was indeed entitled to exercise the right to buy the property.
11. The case took on a different complexion in November 2000 when the Housing Association gave notice of their application to amend the statement of case deleting paragraph 5 which had asserted that the tenancy was continuing, relying instead upon the notice to quit and claiming that the Housing Association was entitled to possession following the termination of the tenancy as a result of the service of that notice to quit.
12. Counsel's advice was again taken. He advised that the proposed amendments were "a complete sea change". Counsel advised that if the amendment were allowed, then it would be impossible to establish that the appellant had a right to buy: the amendment meant that the appellant had no defence. There was moreover "every chance" that the amendment would be allowed.
13. The appellant's instructions were to oppose the amendment. It is perhaps not a surprise that it was allowed by order of the district judge made on 22^nd December 2000 but unexpectedly on the very favourable terms for the appellant that the Housing Association pay all his costs to date subject to their detailed assessment. Those costs have never been assessed and it is, therefore, a matter of pure speculation as to what would have been recovered had the matter ended there. The appellant has produced a statement of costs dated 20^th December 2000 presumably prepared for summary assessment at the hearing which was to take place two days later. The total amount is £7,519.57. In the course of argument before us the appellant drew attention to an interim bill which had been delivered in respect of costs incurred to 21^st November 2000 in a larger amount of £7,550.24. He was billed again on 7^th February and estimates that £1,236.88 related to work done between the date of the November bill and the hearing a month or so later. He estimates, therefore, that he would have been charged £8,787.12 for the work done up to 22^nd December 2000. In subsequent correspondence I have seen, his solicitors were informing the Housing Association's solicitors that the Housing Association's liability under this order was in the region of between £8,000 and £10,000. Some of that expense seems to have included the cost of obtaining letters of administration which may arguably not form part of the costs of the litigation for which the Housing Association was responsible. It is apparent at once that there is considerable uncertainty as to the amount which would have been recovered on an assessment of those costs. I must return to this later when considering the question of the loss the claimant alleges he has suffered.
14. Although the events up to this point are the crucial events for the purposes of this appeal, it is necessary to state very shortly how the litigation continued. In the teeth of the advice from his lawyers, the appellant insisted on appealing the district judge's order. Somewhat out of time the Housing Association sought permission to appeal the costs order. Those matters were compromised in May 2001 when both the appeal and the application for permission to appeal were dismissed with no order for costs. That meant that the appellant retained the benefit of the costs order in his favour against the Housing Association. He pursued his defence and counterclaim by contending that the Housing Association was estopped by representation from denying the appellant his right to a tenancy of the property and his right to buy the property. He sought declarations to that effect in his amended counterclaim. The Housing Association successfully applied for summary judgment on its claim and an order for possession was made on 19^th July 2001, the appellant being ordered to pay costs assessed in the sum of £1,940.50. The appellant changed his solicitors and through them and new counsel appealed but then withdrew the appeal. His counterclaim was later amended for the third time and he claimed damages against the Housing Association for negligent mis-statement and specific performance of a tenancy agreement between the Housing Association and his father which he contended gave him the right to a new assured periodic tenancy of the premises. Fresh evidence was put in before us of the eventual compromise of this litigation on 30^th September 2004 as a result of which a new tenancy has been granted to the appellant together with an option to exercise the right to purchase the property, which option has apparently been taken up by the appellant. The terms recite that £4,000 was agreed to be the balance due to the appellant by the Housing Association in respect of costs orders made in the course of the proceedings in the appellant's favour, this sum no doubt taking account of the fact that the appellant had been ordered to pay the Housing Association £1,970 when summary judgment was entered against him.
15. After the appellant had changed solicitors in July 2001, his former solicitors, the appellants, began these proceedings against him in October 2001 for some £14,022.46, the balance of their costs for acting for him in the Housing Association proceedings. In his defence he pleaded as follows:-

"Neither the claimant, nor counsel instructed by them on my behalf, advised me as to the true effect of the notices which were served by [the Housing Association] in respect of my father's tenancy. In particular I was not advised about the effect which the notice to quit had on the possession proceedings. The NTQ having been served both on the personal representatives of Bernard White and the Public Trustee meant that in the absence of letters of administration (my father having died intestate) the tenancy was thereby terminated. In the opinion of [counsel] he notes the existence of the notice without stating its effect. This was negligent, and caused me to take a course of action which was bound to fail."

16. He alleged that as the advice he was given was inadequate and negligent he was not obliged to pay anything for the services they had rendered. He counterclaimed sums he had paid on account and the sum of £1,940.50 which he had been ordered to pay on the making of a possession order. He claimed the costs incurred by him when the new solicitors had to take over the conduct of the proceedings.
17. The solicitor's claim and his counterclaim were heard over two days by His Hon. Judge Mitchell sitting in the Bromley County Court. On 15^th October 2002 he entered judgment for the solicitors in the sum of £12,491.84 and dismissed the appellant's counterclaim.

The main thrust of the judgment under appeal.

18. As to the solicitor's negligence the judge held as follows:-

"10. At the stage when the proceedings were issued there was no reference to the notice to quit being served on the Public Trustee, and pleaded at paragraph 5 was that the deceased's estate was subject to statutory trust until lawfully determined by the court. In other words, although the notice to quit had been properly served, the pleading reflected that the tenancy was in some ways still subsisting. At that point solicitors and counsel … were under the clear impression that the tenancy subsisted.

11. Mr White's case is that they should have realised that it had been determined. He has drawn attention to various documents where references were made to notices served on the trustee and indicated that in his argument they should have realised that that had happened. I do not accept that because it seems to me that there is not a specific reference to the tenancy being determined. Not only that, they were entitled to rely on the pleading, which was that there was a statutory tenancy still in existence. In any event, I say here and now at this part of my judgment that whatever the rights and wrongs, the reality was – as we shall see when we go through the documents – that counsel and solicitors were entitled to rely on the case pleaded by the Housing Association …"

19. As to the question of damage suffered by the appellant the judge held this:-

"23. Turning the clock back to 22 December, District Judge Robinson allowed the amendment but, to the surprise and delight of [counsel], he allowed the defendant Mr White all his costs. The reality is that if the matter had rested there, Mr White would have suffered no or very little loss as a result of the litigation in connection with those proceedings. At a very late stage he sought to say that the costs may have been different had they still been taxed at that stage, and there may have been a difference between the costs recovered and solicitor and client costs. He did not have any evidence about that. Mr Mills [counsel for the solicitors] objected – and I agree with Mr Mills – that it is far too late to raise any of those allegations. However, in realistic terms, he would not have been out of pocket or much out of pocket. …

26. It seems to me at this point one has to look at oneself and say, even if solicitors had given wrong advice or not appreciated that there was a notice to quit, what loss had been suffered? The answer is none or next to none. Certainly none which has been quantified."

20. As to causation the judge held:-

"27. As I have indicated, so far as not giving proper advice is concerned, had it not been given, the reality is that on 22 December there would have been, in my judgment, no loss or certainly no loss which has been quantified. Mr White sought to say that if he had been told that the notice was valid, in other words if [counsel] had said straight away the notice was valid and effectively the tenancy had gone, he says he would not have carried on. I do not accept that argument for one moment. He had been told in no uncertain term at the outset that he was up against it and he had been told an appeal was hopeless, and yet he carried on. That evidence given by him that he would not have carried on is simply quite contrary to everything that is written or said in this case. …

54. … [Counsel for the solicitors] submitted that Mr White was not remotely bothered about adverse costs orders when he knew he had no defence, and therefore even if he had been advised properly about the notice to quit, he cannot show that he would have been the kind of man to give up possession and he was prepared to take a bold and expensive step and he continued to defend the indefensible. In my judgment, in the context of this case, it was a perfectly restrained and reasonable observation to make and it is one with which I do not disagree."

The grounds of this appeal.

21. Having heard counsel for the respondents, Jonathan Parker L.J. granted permission to appeal on the limited grounds that it was arguable that the solicitors were negligent in failing to advise the appellant at the outset that reliance by the landlord on the notice to quit served on the Public Trustee would be bound to lead to a possession order being made and that some loss resulted from that negligence. In the course of the hearing the appellant had estimated that his minimum recoverable loss would be £1,267.22 and Jonathan Parker L.J. made to clear to him that he would expect that the court hearing the substantive appeal would require to be satisfied that there was a substantial sum at stake on the appeal beyond his estimate of £1,267.22, a sum which the solicitors were prepared to concede there and then simply to compromise the appeal. That offer was refused by the appellant.

Negligence

22. Here the solicitors were retained by the client to advise him on the claim for possession being brought against him and as to his prospects of successfully securing a tenancy of the property and/or a right to purchase it. The solicitors were put in possession of the statement of the Housing Association's case which on the one hand asserted in paragraph 5 that the tenancy subsisted but also expressly referred to a notice to quit which had been served. The solicitors were aware from the correspondence provided to them that two notices were served, one the notice on Ground 7, and the other the notice to quit. Moreover they knew from the evidence supplied that the Public Trustee Office had been notified of the action and that the relevant notices, i.e. both of them, had been registered pursuant to the Public Trustee (Notices Affecting Land) (Title on Death) Regulations 1995. They were, therefore, aware of the document which, if relied upon, to use the judge's words, "put paid to his case" and effectively made it "completely dead in the water". The question is whether or not they were entitled to rely on the way the case was pleaded or whether they ought to have investigated the facts fully and advised the client in the light of those facts whether or not he had a reasonable prospect of succeeding in his defence. I share Jonathan Parker L.J.'s view that the appellant has a realistic prospect of success in establishing this negligence but as this appeal was called on late in the day we proceeded on the basis that it would be expedient to assume negligence without deciding it. We took that course because it seemed to us that the appellant had considerable difficulties in establishing any causal link between that negligence and any loss flowing from it.

Causation.

23. The "basic principles of the law of negligence" were stated by Sir Christopher Slade in Boateng v Hughmans [2002] PN449, 455, paragraph 35, to be these:-

"In short, in my judgment, as the law stands, any Claimant who seeks substantial damages arising from a solicitor's negligent failure to give him proper advice must satisfy three separate conditions, namely by showing:

(1) what advice in all the circumstances should have been given by a normally competent solicitor; and

(2) what action the claimant would on the balance of probability have taken if he had received such advice; and

(3) that, in the light of (1) and (2), the loss which he has suffered was in fact caused by the failure to give the relevant advice."

24. The third condition is troublesome. The trouble arises from a perceived dichotomy in the nature of a solicitor's advice to which Millett L.J. attached importance in Bristol & West Building Society v Mothew [1998] Ch 1, 11:-

"In the present case the Society's claim is not for misrepresentation. Accordingly, questions of inducement and materiality are not relevant. Its claim lies in negligence, and the relevant concept is reliance. In considering the issue of causation in an action for negligence brought by a client against his solicitor it appears from Downs v Chapel that it is necessary to distinguish between two different kinds of case.

Where a client sues his solicitor for having negligently failed to give him proper advice, he must show what advice he should have been given and (on a balance of probability) that if such advice had been given he would not have entered into the relevant transaction or would not have entered into it on the terms he did. The same applies where the client's complainant is that the solicitor failed in his duty to give him material information.

Where, however, a client sues his solicitor for having negligently given him incorrect advice or for having negligently given him incorrect information, the position appears to be different. In such a case it is sufficient for the plaintiff to prove that he relied on the advice or information, that is to say, that he would not have acted as he did if he had not been given such advice or information. It is not necessary for him to prove that he would not have acted as he did if he had been given the proper advice or the correct information. This was the position in Downs v Chapel [1997] 1 WLR 426."

Otton L.J. was more pragmatic. He said at p. 25:-

"From a practical point of view in some cases it may be more expedient to establish the causal link between the negligent act or omission and the reliance by the plaintiff or the course of action he was induced to take. The judge may find as a fact that there was no reliance or the plaintiff would have behaved in the same or substantially the same manner if he had been given accurate information; in either event the negligence had no causative potency. That is the end of the matter, the chain is broken, there is no loss at all and there is no need to consider or determine the kind of loss."

Staughton L.J. does not seem to me to expresss any opinion on this point.

25. Millett L.J.'s views have not been received without criticism. Hobhouse L.J. pointed out in Swindle v Harrison [1997] 4 All ER 705, 728 that his judgment in Downs v Chapel was not authority for the proposition upon which Millett L.J. had relied. There is also a compelling article by Janet O'Sullivan in (2001) 4 P.N. 272 on Acts, omissions and negligent professionals: confusion over counterfactuals. Nevertheless, unless and until it is overruled, I am content to apply the Mothew distinction. Notwithstanding the fact that Mr Mills for the respondent seemed in his skeleton argument to be inclined to concede the point, we called upon Mr White to justify his submission that this was a case of incorrect advice and not one of a failure to advise.
26. It is perhaps much easier to state that there is a distinction between negligently failing to give proper advice and negligently giving incorrect advice than it is to identify any coherent basis on which the distinction is to be drawn. It seems to me that every case of giving incorrect advice necessarily involves failing to give proper advice. Moreover as Janet O'Sullivan observes in her article, the distinction between acts and omissions is more relevant to the task of establishing whether there is a duty of care at all. Here the solicitor's duty, whether it arises in contract or in tort, is to advise with reasonable skill and care and:-

"where a professional fails to give appropriate advice to his client, it is not really a case of an omission at all, merely an example of a negligent way of carrying out his function ('bad auditing' or 'bad legal advice'), just as a driver who fails to brake at traffic lights and injures the plaintiff is straightforwardly liable for 'bad driving'."

27. Take the case before us. Mr White very ably submits that the correct advice to give would have been this:-

"a. MDHA are seeking possession on ground 7 Schedule 2 of the Housing Act 1988. This is a mandatory ground, which means that when the court hears it, it must grant possession. There is no defence.

b. We can, however, try to adjourn that hearing in favour of pursuing the Right To Buy. This may work or it may not. We can ask. Once we have the adjournment and we get to buy the property the possession action will die.

c. I have to tell you though, that MDHA have a trump card though they do not appear to have noticed it yet. They have also issued a Notice to Quit on both the Public Trustee and the Personal Representatives of your late father. In the absence of Letters of Administration or a Will this has the effect of actually terminating your tenancy. In fact this has already happened. They have not pleaded it, and if they do not notice we can go all the way to actually completing the purchase. This will not then matter.

d. The chances are that if they really want you out, as they seem to, then they will revisit their papers and find that you do not in fact have a tenancy so can't exercise the Right to Buy. Furthermore, they may amend at virtually any time. The only ground on which we could oppose an amendment would be uncompensatable prejudice, that is to say that we are not able to defend this amendment because some evidence we would have used or investigation we could have conducted is no longer available to us. That is unlikely to be the case here."

28. The solicitors gave the advice under heads a and b. That was correct advice. Where they went wrong was in not giving advice under heads c and d. Such advice as was actually given was not wrong. So far as it went it was good advice. Its deficiency was that it was incomplete. It did not go far enough. It becomes plainer when one analyses what the scope of the duty was. The solicitor's duty was to survey the whole scene and give advice accordingly. In Charlesworth & Percy on Negligence 10^th Edition 8-216 the authors say in a passage on which Mr White relies:-

"In contentious matters, it is the duty of a solicitor, on taking his client's instructions, to ascertain the relevant facts in order that he can form an opinion as to whether or not there is a right of action" (and one would add, "a good defence").

29. It seems plain to me that the client cannot say to his solicitor, "The scope of your duty is to look at everything, explicit and implicit in what I give you, and having done so, advise me on the proper course of action to take" and then in the next breath say, "It does not matter that you did not do all you ought to have done. It is enough for my case that I relied on the little bit you did do." Here the breach of the duty which is the substance of the real complaint is that the solicitors did not spot the death knell to the client's hopes for a successful outcome. It is what is missing that makes the advice fall below the standard of the competent solicitor. If one has to characterise that breach it is surely a case of failing to give proper advice rather than giving incorrect advice.
30. It follows from that characterisation that the necessary causal link which it is incumbent on Mr White to establish can only be demonstrated by his showing that on balance of probabilities he would have filed no defence and filed no counterclaim seeking to assert one way or the other that there was an extant right to buy. He fails to establish that. The judge's findings of fact are that he would have ignored the advice. The appellant cannot show that finding to be wrong. His case before us is not so much that the judge was wrong in coming to that conclusion but rather that it is impossible for Mr White honestly to say how he would have reacted in the hypothetical situation. His argument is that he relied upon the limited advice he was actually given and acted upon and followed it when putting in his defence and counterclaim in the action. That kind of reliance is, however, not enough to establish causation where the real cause of complaint is that he was not given all the advice he was entitled to expect from his solicitors in order to make an informed decision about the response he should make to the claim against him.
31. Mr White, who is to be congratulated on his assiduous research, draws our attention to Chester v Afshar [2004] UK HL 41, [2004] 3 WLR 927, an unusual case of medical negligence where the surgeon failed to warn the patient of a small but unavoidable risk of surgery when, following that surgery performed with due care and skill, the risk eventuated but it was not shown that, if duly warned, the patient would not have undergone the surgery at some future time with the same small but unavoidable risk of mishap. The majority, Lord Steyn, Lord Hope of Craighead and Lord Walker of Gestingthorpe were of the opinion that the dictates of justice and policy demanded that the patient have a remedy even if that necessitated a modest departure from the traditional causation principle.
32. Mr White seizes on paragraph 87 in the speech of Lord Hope:-

"To leave the patient who would find the decision difficult without a remedy, as the normal approach to causation would indicate, would render the duty useless in the cases where it may be needed most. This would discriminate against those who cannot honestly say that they would have declined the operation once and for all if they had been warned. I would find that result unacceptable. The function of the law is to enable rights to be vindicated and to provide remedies when duties have been breached. Unless this is done the duty is a hollow one, stripped of all practical force and devoid of all content. It will have lost its ability to protect the patient and thus to fulfil the only purpose which brought it into existence. On policy grounds therefore I would hold that the test of causation is satisfied in this case. The injury was intimately involved with the duty to warn. The duty was owed by the doctor who performed the surgery that Miss Chester consented to. It was the product of the very risk that she should have been warned about when she gave her consent. So I would hold that it can be regarded as having been caused, in the legal sense, by the breach of that duty. "

33. Mr White argues that had the correct advice been given, then he would have had the opportunity of making up his own mind but that opportunity has been denied him. He submits that it cannot be right that if he is honest in admitting that he could not say what he would have done that he is then denied vindication. The traditional approach to causation would make breach of the duty utterly hollow. In my judgment the fact that the question to be asked is the hypothetical one of what he would have done does not of itself render the test unjust. Judges are well able to decide on the totality of the whole of the evidence in the case what on a balance of probabilities would have happened. In my view the traditional approach to causation does give a just answer to this case. The speech of Lord Bingham of Cornhill is instructive in this regard. He said in paragraph 9:-

"It is trite law that damage is the gist of the action in the tort of negligence. It is not suggested that it makes any difference whether a claim such as the present is framed in tort or in contract. A claimant is entitled to be compensated for the damage which the negligence of another has caused to him or her. A defendant is bound to compensate the claimant for the damage which his or her negligence has caused the claimant. But the corollaries are also true: a claimant is not entitled to be compensated, and a defendant is not bound to compensate the claimant, for damage not caused by the negligence complained of. A patient's right to be appropriately warned is an important right, which few doctors in the current legal and social climate would consciously or deliberately violate. I do not for my part think that the law should seek to reinforce that right by providing for the payment of potentially very large damages by a defendant whose violation of that right is not shown to have worsened the physical condition of the claimant. I would respectfully adopt the reasoning of McHugh J. in his dissenting judgment in Chappel v Hart (1998) 195 CLR 232."

34. McHugh J's judgment in that case set out his conclusions in paragraph 34 to this effect:-

"(1) a causal connection will exist between the failure and the injury if it is probable that the plaintiff would have acted on the warning and desisted from pursuing the type of activity or course of conduct involved;

(2) no causal connection will exist if the plaintiff would have persisted with the same course of action in comparable circumstances even if a warning had been given;

(3) no causal connection will exist if every alternative means of achieving the plaintiff's goal gave rise to an equal or greater probability of the same risk of injury and the plaintiff would probably have attempted to achieve that goal notwithstanding the warning "

35. Those principles seem to me to have easy and ready application to this case. Mr White was not warned about the risk that his application for an adjournment whilst he pursued his right to buy would be a hollow relief as soon as it became clear that his father's tenancy had come to an end. Nonetheless the judge's findings of fact make it abundantly clear that he would have persisted with the same course of action even if he had been fully warned of its dangers. The overwhelming probability is that Mr White would have attempted to achieve his goal of asserting a right to buy whatever the legal obstacles placed in his path. In my judgment he cannot prove that he has suffered any damage as a result of the negligent advice.

Quantum.

36. Once the Housing Association applied to amend and to rely on the notice to quit, Mr White knew what it has been assumed for the purposes of this appeal he ought to have known from the very first conference of counsel. The chain of causation is certainly broken at that moment. Since he had the favourable order that the Housing Association pay all his costs up to the point of amendment, his maximum loss could only be the difference between his solicitor and own client costs and the standard costs recovered from the Housing Association. He cannot particularise that loss. If I correctly understand his argument, and I am far from sure that I do, he now seeks to argue that because in the recent compromise of the litigation between him and the Housing Association the £4,000 was agreed to be the balance due to him after deducting £1,970 in respect of the costs he owed the Housing Association, then the true value of his claim for costs is £5,970. If, as he asserts, he was being charged £8,787 for the work done up to the date of the order in his favour, then his loss is £2,817. I do not need to become immersed in this arithmetic. If he cannot prove the causal link between the breach and the damages, he cannot recover at all.

The solicitors' entitlement to their fees

37. For his alternative argument Mr White relies on Hill v Featherstonhaugh (1831) 7 Bing. 569 where Tindal C.J. said:-

"I have always thought that if an attorney, through inadvertence or inexperience, … incurs trouble which is useless to his client, he cannot make it the subject of remuneration, the meaning of which is a reward for useful labour."

Alderson J. held:-

"There are two cases where a party is precluded from recovering for work and labour: one where the work, which is useful has been performed unskilfully; the other where work, which is useless for the object in view, has been performed even skilfully."

A modern application of these rules is Heywood v Wellers [1976] 1 Q.B. 446.

38. This work was not useless. There is no total failure of consideration. The solicitors put in a defence and counterclaim which kept the client's hopes alive. He was able to remain in occupation. He continued to assert his right to buy. He eventually succeeded and it does not matter that his new solicitors took a different view and presented his case in a slightly different way. The fact is that his former solicitors did run the case as he wanted it run and did keep it extant when on the judge's view it was really "dead in the water". Some lack of skill along the way which would not at all have affected how the case was conducted can hardly be a justification for depriving the solicitors of remuneration for the work which they did do pursuant to their instructions.

Conclusion.

39. When giving permission to appeal, Jonathan Parker L.J. pointed to the obvious difficulties the appellant would encounter. Despite his sustained argument, Mr White cannot overcome those difficulties. He cannot establish he would have acted differently if the lack of any prospect of success in the litigation had been explained to him. Consequently he cannot recover damages nor deny his solicitors their fees and disbursements. In the result this appeal must be dismissed.

Lady Justice Arden:

40. I agree. In particular, I agree with Lord Justice Ward that the appellant's case fails on the threshold issue of causation for the reasons which my Lord has given. I would like to add a few observations on Mr White's supplementary written submissions in which he places reliance on the recent decision of the House of Lords of Chester v Afshar [2004] 3 WLR 927. In my judgment, this case does not establish a new general rule in causation. It is an application of the principle established in Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32 that, in exceptional circumstances, rules as to causation may be modified on policy grounds. In that case, the injured party had been exposed to the risk of harm by the wrongful conduct of several tortfeasors but he could not prove which one had caused the harm. It was held that it was sufficient for him to show that the wrongdoer had materially increased the risk of harm. In Chester v Afshar the requisite policy grounds were also found to exist. The appellant had not been informed of a small risk of a significant side effect from surgery. The side effect occurred, though not due to any fault of the surgeon. The appellant sued the surgeon but she could not show that she would not have had the operation after she had explored the possibility of other options, and the risk would then have been the same. It was held that the surgeon's failure to warn the appellant of the side effect constituted a breach of duty on his part. As a result of the side effect occurring, the appellant suffered injury. Her claim to damages was upheld in the House of Lords, who rejected the argument that she could not succeed because the surgeon's failure to warn had caused her no loss.
41. Accordingly, the Chester case concerned a negligent failure to warn a patient of the side effects of medical treatment. The principle of informed consent to medical procedures has special importance in the law: see [17] and [18] per Lord Steyn. The Council of Europe Convention on Human Rights and Biomedicine provides that an intervention in the health procedure may only be carried out after the person concerned has given free and informed consent to it and that a person shall before any medical intervention be given appropriate information as to (among other matters) the risks of any intervention (article 5). These provisions are reflected in the right to integrity of person contained in article II.63.2(a) of the Charter of Fundamental Rights of the European Union (see the explanations referred to in the preamble to the Charter). These instruments have been signed but not ratified by the United Kingdom. However, they demonstrate a widespread ethical concern on the issue of patient consent.
42. There are no such policy considerations in the present case. If there were, then it would be difficult to distinguish this case from any other case of professional negligence on the part of a lawyer or accountant. None of the long-established authorities on causation was overruled by the House of Lords in Chester v Afshar. For these reasons, it would not, in my judgment, be right for this court to apply Chester v Afshar in preference to those traditional principles already summarised by Ward LJ. The basic rule remains that a tortfeasor is not liable for harm when his wrongful conduct did not cause that harm. Mr White cannot show that he suffered loss by reason of the respondents' failure to advise on the effect of the notice to quit because, on the judge's findings, he would not have acted differently if he had had that advice. He cannot meet that point by showing that he relied on other advice which the respondents gave. That advice was not the real cause of his loss.