Matters of the Heart
Can a solicitor acting for a grieving family in an Inquest be liable in negligence if their concerns are not completely allayed?
The law firm Leigh Day acted for Gabrielle Shaw, the daughter of William Ewan who sadly died in 2007 aged 86 shortly after heart surgery. Mr Ewan was not deemed suitable for open heart surgery, and so underwent a newly-developed "keyhole" procedure known as "TAVI" which involved the insertion of a prosthetic aortic valve. Unfortunately, during the procedure a hole or tear developed in the aorta causing a substantial haemorrhage, and shortly after a cardiac arrest. He passed away in intensive care.
Mrs Shaw instructed Leigh Day in April 2008 to represent the interests of the family at the Inquest, and later to act in clinical negligence proceedings against the hospital trust and the individual consultant.
A number of Pre-Inquest Reviews ("PIRs") were held by the Coroner to decide the ambit of the questions to be answered and what evidence would be allowed. In 2011 a three-week Inquest took place. The jury returned a narrative verdict, concluding that Mr Ewan's death was the unintended consequence of a therapeutic procedure. The jury also found that he had been informed of its risks, including the risk of death, prior to agreeing to the surgery.
Mrs Shaw sought a judicial review of the Inquest, despite having to bring it as a litigant in person because Leigh Day and counsel advised her that it had no real prospect of success. The High Court dismissed it and Court of Appeal refused to appeal that decision.
Mrs Shaw, in her capacity as representative of her father's Estate, brought a clinical negligence claim against the hospital and the individual consultant. She was initially represented by Leigh Day, although Leigh Day ceased acting after Mrs Shaw rejected their advice to accept a Part 36 offer. She retained other solicitors. Despite the jury's findings in the Inquest, it was alleged that Mr Ewan was not given proper information as to the risks such that no informed consent was given. It was alleged that if the requisite information had been given Mr Ewan would have refused the operation altogether. The claims were initially defended, but in due course liability was conceded. Judgment for damages to be assessed was entered against the defendants in 2015. After a three day quantum trial in October 2015 damages were assessed at £15,591.83 (inclusive of interest). The award included an amount of £5,500 for pain, suffering and loss of amenity (Shaw v Kovac & anr [2015 EWHC 3335 (QB)).
Mrs Shaw appealed, arguing that the judge should have also awarded compensation for "the unlawful invasion of the personal rights" of Mr Ewan and his "loss of personal autonomy". Mrs Shaw accepted before the Court of Appeal that such an award would be novel, because a right to recover under such a head of loss has never before been acknowledged in an action framed in negligence in respect of personal injuries. Mrs Shaw argued that recent developments in the law and the increasing emphasis given in modern times to the right to personal autonomy of an individual both justify and require that modern courts should acknowledge such an actionable head of loss. The appropriate figure suggested in this case is £50,000. That appeal was dismissed in July 2017 in Shaw v Kovac& anr  EWCA Civ 1028.
In the meantime, despite there having been no findings in the Inquest that there was any defect or flaw in the valve used in the surgery, Mrs Shaw had also commenced product liability claims against the manufacturers of the valve that had been used in her father's surgery, and various other parties involved in its distribution. None of those claims succeeded, and some were discontinued or were dismissed by summary judgment.
Finally, Mrs Shaw brought a claim in professional negligence against her former solicitors Leigh Day, both in her personal capacity and in her capacity as representative of the Estate of Mr Ewan. She alleged a total failure of consideration in the retainer such that all of Leigh Day's fees should be refunded, and also sought damages for distress.
In her judgment reported at Shaw v Leigh Day  EWHC 2034 (QB), Andrews J commented that a "major difficulty" in the case had been, "trying to ascertain why the matters complained of by Mrs Shaw are said to have amounted to a breach of duty, let alone a breach which caused her a recoverable loss." Mrs Shaw even had to concede in cross examination that there was "no evidential basis" for "any of the propositions that she criticised Leigh Day for not having pursued (or pressed the coroner to pursue) either at the inquest or the clinical negligence proceedings." Andrews J dismissed the professional negligence claim entirely, commenting that none of the allegations had "come close" to being established on the balance of probabilities, with some of them being "completely unjustified."
In coming to her decision, Andrews J commented, “An inquest is an inquisitorial rather than an adversarial process. Whilst interested persons have the right to make submissions at any [pre-inquest review] as to the scope of the inquiry, what evidence should be adduced, and what witnesses should be called, the final decision on all such matters is taken by the coroner."…“So long as appropriate representations are made, the legal representatives of an interested person cannot be held in breach of duty to their client if the coroner determines that certain evidence is not to be admitted or precludes a certain line of questioning from being pursued. That is exactly what happened here.”
Andrews J commented on Mrs Shaw's motivation for bringing the claim, saying, “Having in consequence failed to achieve the closure that she sought, Mrs Shaw has convinced herself that someone must be to blame."…“She cannot accept that an inquest will not always succeed in laying to rest all the concerns of the family of the deceased, and that this situation may not be anyone’s fault."…“Although, like other judges before me, I have great sympathy for Mrs Shaw’s desire to get to the truth of what happened to her father, that is the position here.”
Is expert evidence needed in solicitors' negligence cases?
No expert evidence was heard in this case. Andrews J stated, “The court will rarely hold a professional to be in breach of duty in the absence of assistance from a suitably qualified expert who can explain why in his or her opinion the acts or omissions complained of fell below the standard of professional competence that would have been expected in those circumstances. No expert evidence was called in this case."…“Of course, not every case of professional negligence requires expert evidence to support it, and there may be cases where the breach of duty is obvious… However, this is not such a case."
It is highly unusual for expert evidence on breach of duty to be called in solicitors' negligence cases. In cases involving a standardised legal 'process' such as conveyancing, expert evidence is unnecessary because the relevant duties are well established and explained in publications such as the Conveyancing Handbook. In negligence cases arising out of specialist or niche areas of practice, it is generally accepted that the judge will be able to decide the case on the basis of the particular facts and the law without the benefit of such evidence. In addition there will always be significant practical difficulties in obtaining such expert evidence and avoiding the danger of the expert merely giving inadmissible evidence about what he or she would have done in those circumstances.
Given the rarity of expert evidence on breach in solicitors' negligence cases, even if a defendant solicitor and their professional indemnity insurers decided that it was necessary to obtain an expert report, they would be running a significant risk that permission to rely on it would be denied and the costs relating to it found to be irrecoverable.
It is perhaps surprising that the judge seems to have indicated that expert evidence would have been necessary for Mrs Shaw's claim to succeed. Perhaps the judge's comments should not be viewed as an indication that expert evidence on breach is in fact necessary in solicitors' cases. When viewed alongside her criticism of the way the allegations were pleaded and argued, her comments could be interpreted as part an overall evaluation that this was a claim that should not have been brought.
Nevertheless, in the very rare cases where expert evidence might be of assistance in the defence of a solicitor, their representatives and professional indemnity insurers may be able to refer to this case in support of their arguments at the case management stage.
Can a solicitors be liable for damages for distress?
Before the main trial of the solicitors' negligence claim, a preliminary issue was decided as to whether Mrs Shaw could in principle recover damages for distress against Leigh Day. In the judgment on the appeal on that issue (Shaw v Leigh Day  EWHC 825 (QB)), Andrews J found that she should be allowed to make those arguments at a full trial.
This decision highlights the very unusual nature of the role of a solicitor acting for the family of a deceased in an Inquest. It could not have been a term of that retainer that Leigh Day undertook to obtain a particular outcome. However, the judge decided that the retainer was concerned with, "ensuring, so far as possible, that the circumstances leading to Mr Ewan's death were sufficiently investigated to provide the family with an answer to the question why their loved one died after undergoing the TAVI procedure", and that, "the desire to know what happened was the driving force behind all this litigation."
The judge decided that, "the client is still expecting an answer based on a satisfactory factual investigation, and answer that will give him or her the peace of mind or sense of satisfaction that comes with knowing that the matter has been properly and thoroughly investigated, and that is the very reason that they engage a lawyer to look after their interests. Inquests have an emotional element that is unique, and absent from other forms of legal process. If the solicitor retained to put the necessary materials before the Coroner and jury does not carry out his or her job with sufficient diligence, the client will never receive that comfort."
The judge referred to the authorities (including Watts v Morrow  1 WLR 1421 and Farley v Skinner  UKHL 49) that to fall within the exceptional category of cases in which damages for distress can be recovered for breach of contract, it is sufficient that a major or important object of the contract (as distinct from its primary purpose) is to give pleasure, relaxation, or peace of mind. The judge noted that there is no authority on this point in relation to inquests, but decided that the point was "arguable" and for public policy reasons Mrs Shaw should be allowed to have the point fully argued at the full trial.
In the full trial the judge did not have to decide the point because of her finding that there had been no negligence. However, she did say, obiter dicta, that, "If I had come to the conclusion that there had been a breach of duty which resulted in information being kept from the jury which was likely to have made a material difference to the outcome of the Inquest, I might have been persuaded to order general damages for injury to feelings…these damages would not have exceeded £5,000."
It appears that the £5,000 was the result of a pleaded cap on that head of claim, rather than a general principle that damages should not exceed that amount.
Will there be an increase in negligence claims against Inquest lawyers?
While this is only an obiter decision, it is the first indication in the case law that solicitors acting for a family in an Inquest could be liable for damages for distress to that family if their negligence makes a material difference to the outcome of the inquest.
This judgment will likely give prospective claimants significant comfort that damages for distress are available in principle, which in turn is likely to prompt interested parties who are dissatisfied with the outcome of an Inquest to bring claims against their solicitors.
There is a potentially wide pool of such claimants. According to the Coroners Annual Statistics 2017 (published in May 2018), there were 31,519 inquests opened in 2017. There were 501 inquests held with juries in 2017 (representing 1% of all inquests), and many others where the interested parties were represented by lawyers.
Despite this, it seems unlikely that there will be a flood of such claims. Given that Inquests are inquisitorial rather than adversarial, and given that questions such as the ambit of the inquest will always be decided by the Coroner rather than the interested parties, it will likely to be difficult to prove that a solicitor's actions actually affected the ultimate outcome even if negligence can be proven. Equally, now that proportionality of costs is such a key consideration in civil claims, and given that the quantum of damages for distress is unlikely to be particularly large, even claimants with meritorious complaints might be put off from bringing negligence claims because of the risk of substantial irrecoverable costs.
However, what the Shaw v Leigh Day case does seem to indicate is that if such a claim is brought it will prove intractable and extremely difficult to settle. The judge commented on the "unique" emotional element of retainers to act in Inquest proceedings. Such retainers inherently deal with matters of the heart - of grief, anger and filial duty. Mrs Shaw's desire for an Inquest was driven by very considerable feelings of grief and even guilt about Mr Ewans' sudden death. She did not achieve emotional "closure" despite an "exceptionally thorough" Inquest having taken place, which is presumably what motivated her to engage in such a variety of proceedings including judicial review and civil claims against the valve manufacturers, the hospital, the consultant and ultimately her own solicitors.
Claimants experiencing such strong emotions are unlikely to be receptive to rational arguments about standards of care, causation, or even proportionality of costs, and are therefore unlikely to be amenable to negotiating a swift and cost-effective settlement. As a result, any Inquest lawyers unlucky enough to face a professional negligence claim of this type, and their professional indemnity insurers, may have to make a pessimistic assumption that the claim will have to be resolved by a trial and plan their defence strategy accordingly.
Given that expert evidence or the costs of expert evidence are unlikely to be allowed, it may be prudent to instruct panel lawyers who have both solicitors' negligence and Inquest expertise in-house to ensure that the relevant liability issues are addressed promptly so that costs-protective offers made early where appropriate.
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.