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.
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
HHJ Pearce held, with reference to Perry v Raleys  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 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.
 Gestmin v Credit Suisse  EWHC 3560 per Leggatt J at 16 to 20
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