In today’s decision in Perry v Raleys Solicitors, the Supreme Court has over-turned the Court of Appeal’s decision, and confirmed the County Court judge’s approach to Mr Perry’s ‘loss of a chance’ claim against his former solicitors.
Mr Perry claimed that his former solicitors (who had acted for him on a personal injury claim arising out of ‘vibration white finger) had negligently failed to advise him that he could claim an additional amount as compensation for no longer being able to carry out various tasks around the home. He therefore ‘lost the chance’ to recover any amount in respect of that element of his claim.
In claims like this – where the claimant has lost the chance to pursue/win a previous claim due to the negligence of their lawyers – the general principle is clear: the court is not required to conduct a ‘trial within a trial’ and make a decision on whether the original claim would have succeeded or failed. Instead, they apply this formula: value of original claim x % chance of original claim = value of professional negligence claim against the lawyers. But that does not mean that every aspect of a loss of a chance claim must be decided on this basis. Since the Allied Maples decision in 1995, the rule has been:
- When deciding what the claimant would have done, had the defendant not been negligent, the court makes a finding ‘on balance of probabilities’
- But when deciding what a third party (such as a hypothetical judge) would have done or decided, had the defendant not been negligent, the test is ‘loss of a chance’.
So in Perry v Raleys, the Supreme Court found that it had been perfectly proper for the County Court to have come to a decision about whether, on balance of probabilities, Mr Perry would have pursued an honest claim for loss of the ability to perform domestic tasks, had he been properly advised. The County Court had found – and the Supreme Court have now agreed – that on balance of probabilities, Mr Perry would not have pursued such a claim. The reason being that, in fact, Mr Perry had not lost the ability to carry out most of those tasks, and/or any impairment which he had suffered was not the result of the vibration white finger, but in fact the result of an unrelated injury.
Loss of a chance claims against lawyers tend to benefit claimants whose original claims were weak; even if they would probably have lost their original claim, they can nevertheless succeed against their negligent solicitors, so long as they can show that their original claim had at least a real and not just a fanciful chance of succeeding. Today’s decision reaffirms the limits of the application of the loss of a chance formula, and is also a good example of the limits of the tendency of such claims to favour a claimant whose original claim was weak.