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Lack of witness credibility leads to a failure of a lost chance claim

The recent decision of His Honour Judge Pearce in Waraich & Anor v Ansari Solicitors (A firm), a case involving the doctrine of lost opportunity, is one of the first to apply the recent Supreme Court decision in Perry v Raleys (for which see DWF's earlier article here). The case provides a powerful reminder of the need for Claimants to prove 1) what they would have done in any hypothetical scenario and 2) to provide evidence to support the value allegedly lost. In this claim for £820,000, nominal  damages only were awarded.  

Background

The Claimants, Mr and Mrs Wariach, alleged that the Defendant, Ansari Solicitors ( " Ansari"), failed to advise them to issue a negligence claim against another solicitors' practice, Khan's, within the limitation period. The claim against Khan's was itself centred on an allegation that they negligently handled an immigration matter on behalf of Mr Wariach, a Balti Chef , as a result of which his work permit expired.

It was submitted that this caused a delay in Mr Wariach and his family obtaining permission to remain in the United Kingdom, and a delay in obtaining British Nationality. The losses sought of some £820,000  included loss of earnings, extra legal costs, loss of capacity to secure mortgages and loans and damages for distress and inconvenience.

Ansari admitted that it had failed to issue proceedings against Khan's within the limitation period, however it denied the Claimants suffered loss as a result. In particular, Ansari asserted the Claimants had not lost a real or substantial chance as it was said that the original claim against Khan's was doomed to failure

Decision

HHJ Pearce held, with reference to Perry v Raleys [2019] UKSC 5, that in assessing the Claimants' potential loss a distinction had to be drawn between determining (i) what the Claimants would have done if properly advised (to be determined on the balance of probabilities), and (i) what is dependent on the acts of others (to be determined as a loss of a chance, i.e. on a % basis). In determining the lost chance, the Court found that they had to consider whether that chance was real or substantial.

In reliance on the Gestmin[1] principles that apply to witness evidence, the Court was mindful that the events in question had happened some time before the trial took place, and that so far as matters were  not recorded in contemporaneous documents there was a risk that a witness would misremember matters. However HHJ Pearce then went beyond this, finding that Mr Wariach was a deeply unsatisfactory witness and his oral evidence gave serious concerns as to his reliability, particularly concerning the loss of earnings claim.

This assessment of Mr Wariach was relevant not only to the factual findings in the case, but also in relation to the assessment of his lost chance, as the Judge concluded that  any immigration application would have depended on his word being accepted. His evidence was found to have many, and blatant, contradictions, and he was determined to be so poor a witness that any examination of the content of an immigration application would, in the Judge's view, if scrutinised, have led to doubts about his truthfulness.

HHJ Pearce considered that as a result ,Mr Wariach could not show he had suffered any loss of earnings, and indeed the assertion that he had done so was made dishonestly. Similarly, the Court held that there was no evidence that either Claimant was prevented by their immigration status from raising money to pay debtors.

The conclusion of the Court was that the only element of the claim against Khan's with good prospects of success was for wasted expenditure on the wrong type of application; all other aspects had insufficient prospects of success to be considered quantifiable as a loss of a chance. Given that the wasted expenditure claim would have been but one small part of a large claim for damages, there would have been little prospect of settlement. Accordingly the Court found that any damages award would have been "swallowed by [the Claimants'] own irrecoverable costs or conceivably an adverse costs order". In essence, the Claimants lost the chance to pursue a claim of very modest value, the cost of doing which would have far exceeded that value.

[1] Gestmin v Credit Suisse [2013] EWHC 3560 per Leggatt J at 16 to 20

Comment

This case provides welcome confirmation of the approach in Perry v Raleys that a Court will scrutinise carefully any Claim for lost opportunity to determine whether any particular cause of action could have been honestly pursued. It also provides confirmation that a court will scrutinise the honesty and integrity of a Claimant in putting forward the claim and will usually prefer contemporaneous documentation over the oral evidence and recollections of witnesses .

Contact

For more information please contact Daniel Korcz, Solicitor +44 0161 604 1679 or daniel.korcz@dwf.law, Michael Pease – Director - 0161 603 5169, Michael.pease@dwf.law

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.

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