Why courts will be tough on solicitors in
lost opportunity claims
In a recent professional negligence claim the Court of Appeal
reinforced the fact that it will sympathise with claimants in cases
where solicitors facing lost opportunity claims try to limit
damages. Grania Langdon-Down talks to Katherine Rees, partner in
Reynolds Porter Chamberlain’s Lawyer Liability Group, about the need
for solicitors to give their clients realistic advice on prospects
of success in litigation...
In
a recent professional negligence judgment, the Court of Appeal has
reiterated that the courts take a dim view of solicitors facing a
claim for lost opportunity who try to limit the damages by arguing
that their client’s case was never really likely to succeed.
Katherine Rees, partner in Reynolds Porter Chamberlain’s Lawyer
Liability Group, says this is an "old chestnut" for lawyers
conducting litigation. "The thing the court really doesn’t like is
when solicitors run a case for clients - without warning them about
the merits - and then, when things go wrong, argue that the case was
never really likely to succeed. The Court of Appeal in Browning v
Brachers repeats the view of the judge at first instance that
this argument can be unattractive. Solicitors have to give realistic
advice on the prospects of success in litigation."
Rees says the court also reiterated that those dealing with such
cases should not fall into the trap of attempting to try the
original action and that claimants should be given a ‘fair wind’ in
establishing the value of what they have lost. "The
judgment reinforces the fact that generous assumptions will be made
in favour of the claimants in these sorts of situations and that the
court will have sympathy for the difficult position they find
themselves in, fighting a claim which can be many years after the
event. And where that makes their case harder to run, the court will
err on their side rather than on the side of the solicitors."
The case of Browning v Brachers involved Mr and Mrs Browning
who, in 1986, gave up a business in Twickenham, to run a goat farm
in Kent. By 1991 they wanted to expand their herd and bought some
goats from Mr Gilham. The herd became infected with Johne’s disease,
which resulted in substantially reduced milk production and a higher
rate of mortality among the goats. Rees explains: "In 1991, Mr
Gilham set the litigation ball rolling by bringing an action against
the Brownings for some relatively small amounts which he said the
couple owed him."
They counterclaimed for breach of contract on the grounds that a
number of the goats he sold them were infected with the disease. The
couple instructed the law firm Brachers. The action went ahead and
some expert evidence was served but Brachers failed to serve the
remaining expert evidence and some of the witness evidence in time.
"This meant the Brownings were debarred from relying on that
evidence. That proved fatal to their claim and it resulted in their
claim against Mr Gilham being dismissed," Rees explains.
The next step was to bring a claim for professional negligence
against Brachers for the lost opportunity of pursuing the claim
against Mr Gilham. Rees says: "Lost opportunity claims are a very
common type of claim against solicitors where litigation goes wrong.
Sometimes liability is in dispute but it wasn’t in this case.
"What is interesting is causation and quantum. Where you have a lost
opportunity claim, there is now a fairly set method for dealing with
those claims established through case law. What the court does is
looks to see whether the original action stood a real and
substantial chance of success and, if the claimants can jump over
that hurdle, the court then assesses the percentage chance of
success. It then applies that percentage to the damages which might
have been awarded had the original action proceeded to trial. In
this case, the chances of success were put at 70%.
The Brownings appealed against the amount they were awarded -
£76,000 and an indemnity against some costs they had incurred. Rees
says: "The judgment refers to one of the claimants’ experts putting
their losses at approximately £985,000. We don’t know how much the
final amount will be – the Court of Appeal said their claim had been
significantly undervalued but left it to the parties to sort out the
amount now they had a clear steer from the Court on how they should
be approaching it.
"This case is interesting because eight experts were called, in
addition to witnesses of fact, even though, in professional
negligence claims, you are not there to try the underlying claim.
Instead a ‘broad brush’ approach should be adopted."
(30/06/05)
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Case annotations in other services:-
Browning v Brachers [2005] EWCA Civ 753, [2005] All ER (D) 203 (Jun)
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