I'm interested in…

  • Strategy & Procedure
  • Catastrophic Injury
  • Professional Indemnity
  • Motor
  • Fraud
  • Disease
  • Liability
  • Commercial Insurance
  • Costs
  • Local Authority
  • Scotland

Court upholds solicitors’ negligence ruling in miner’s compensation claim

Raleys Solicitors v Ronald Alan Barnaby
21 May 2014

In a solicitors’ professional negligence claim the Court of Appeal considered the trial Judge’s findings that negligent advice, given by a firm of solicitors to a client claiming compensation for Vibration White Finger (“VWF”), had caused the failure of his claim for loss of services.

Facts

The Defendant solicitors acted for the Claimant in relation to a claim by the Claimant for VWF under a compensation scheme (“the Scheme”) set up by the Department for Trade and Industry to provide tariff-based compensation to miners who had been exposed to vibration and, as a consequence, suffered from VWF.

The Claimant had worked in the mining industry from 1976 until 1994 and had suffered from VWF since 1989. In 1999 the Claimant instructed the Defendant (along with around 12,000 other ex-coal miners) to pursue a claim under the Scheme on his behalf; the Defendant subsequently submitted a claim for VWF in March 1999.

The claim was accepted by the Scheme’s claim management company in October 1999 and the Claimant was subsequently assessed by a doctor as suffering from early stage VWF.

In December 2002 the Claimant agreed to settle his claim for £10,822.01 plus interest, on a full and final basis in respect of all claims. The settlement included claims for general damages and handicap in respect of the Claimant’s future work prospects.

The Defendant had originally advised the Claimant that he might also be able to pursue a claim for services in respect of assistance that was required as a result of his disability (with tasks such as gardening and decorating). However, the Defendant subsequently advised the Claimant that the offer of £10,822.01 represented fair compensation for general damages and handicap in the labour market. The Defendant also advised that a claim for services may well take some time to settle and, if he rejected the settlement offer, he would not be entitled to a further interim payment. It seems that the Claimant was concerned that he needed to pay for a forthcoming holiday and, in the absence of being able to obtain an interim payment, he decided to accept the offer and abandon the claim for services.

The Claimant subsequently brought a claim against the Defendant alleging that the Defendant had negligently advised him to accept the offer and abandon his claim for services. It was also alleged that the Defendant incorrectly advised the Claimant that, if he rejected the settlement offer, he would not be entitled to a further interim payment.

Trial at first instance findings

At first instance the trial Judge found there to be negligence on the part of the Defendant and awarded the Claimant damages of £5,925 in respect of the loss of chance of further recovery under the Scheme, on the basis that he would have had a 75% prospect of successfully pursuing a claim for services. The trial Judge found that the Claimant had been entitled to a further interim payment and the Defendant should therefore have advised him that he had little to lose by rejecting the initial offer and by pursuing a services claim. The Judge stated,

I cannot see how he could reasonably make the decision [whether to accept the settlement offer] without knowing what he was giving up by abandoning the services claim.”

The Defendant appealed against the decision arguing that the trial Judge was wrong to find a causal link between the negligence (which was now admitted by the Defendant) and the failure of the claim for services. The Defendant essentially sought to argue that the Claimant’s condition had not reached the stage which justified the need for services and he therefore abandoned the claim for services because he knew it would not succeed.

Findings

The Court of Appeal dismissed the Defendant’s appeal as an unsustainable appeal against factual findings.

Lord Justice Maurice Kay stated that he was “entirely satisfied that the Judge had correctly assessed the reality behind the litigation”.

The Court of Appeal noted that whilst the Claimant was “a poor historian and an unimpressive witness”, the Defendant’s attack on his honesty (in pursuing a claim for services) was misjudged. With regards to the question of the prospects of success of a claim for services, the Court of Appeal noted that the same examination would have applied to the Claimant’s services claim as to his claim for general damages and handicap on the labour market.

Specifically, the Court of Appeal concluded that if the Claimant had been properly advised that to carry on with the claim for services would not have deprived him of a further interim payment (that would have been sufficient to pay for his forthcoming holiday), then there would have been no sensible reason for the Claimant not to continue to pursue the claim for services.

The Court of Appeal also concluded that the Defendant’s argument that the Claimant gave up the claim for services because he had come to realise that it was based on exaggeration verging on dishonesty was inherently implausible.

Specifically,Lord Justice Maurice Kay concluded,

solicitors who had encouraged and certainly not discouraged the presentation of a services claim are now seeking to characterise it as misconceived on the basis of material which was irrelevant to it and in the face of evidence which would probably have led to its success – or at least the quantified prospect of success – but for the intervention of negligent advice which caused the Claimant to abandon it in circumstances in which neither he nor anyone else would have otherwise abandoned it”.

Comment

The Court of Appeal commented that the claim had attracted “the talents of leading counsel on both sides and the risk of an expensive re-trial” but noted that there were other pending appeals which demonstrated extensive litigation against claimants’ solicitors “for this kind of negligence in relation to the administration of the Scheme”.

As recognised by the Court of Appeal, this decision is likely to have important repercussions, and it could now effectively open the floodgates for similar under-settlement claims in relation to the Scheme and other personal injury claims. The Defendant in this case, like many other firms, acted for thousands of ex coal-miners in pursuing similar claims to the Scheme and it is therefore anticipated that a flurry of professional negligence claims could now be pursued against a number of these firms.

Contact

For further information please contact Alexia Drew, Senior Solicitor on 0117 301 7395; Rebecca Steward, Junior Paralegal on 0117 301 7995; or Simon Mason, Partner on 0117 301 7392.

By Alexia Drew, Rebecca Steward and Simon Mason

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

Top