Professional negligence appeal case study

Our professional negligence experts take a look at an appeal from the Supreme Court and what you can take away from it.

The case: Edwards on behalf of the Estate of the late Thomas Arthur Watkins (Respondent) v Hugh James Ford Simey Solicitors (Appellant)

On 20 November 2019 the Supreme Court handed down judgment on a professional negligence appeal.

Summary

The Claimant was pursuing his former solicitors, alleging that as a result of their negligent advice he had lost the opportunity for further compensation under a governmental compensation scheme. Later expert evidence stated that the Claimant would not have been entitled to the further compensation and in fact had been overly compensated at the time of the original assessment for compensation. The Supreme Court held that the later expert evidence was not relevant as this evidence was not available at the time compensation was calculated under the scheme and the expert assessment was not carried out in accordance with the procedures under the scheme. Whilst this initially seems to be contrary to the common law principles of compensatory damages as the Claimant was entitled to damages despite later evidence showing he had been overcompensated and therefore suffered no loss, the court relies heavily on the specific procedures of the compensatory scheme in its decision. Therefore the case does not provide a general decision on the admissibility of evidence which was not available at the time of the original claim.

The professional negligence appeal facts

The Claimant, Mr Watkins an ex-miner, developed Vibration White Finger (VWF) as a result of the vibratory tools used in mining. The Claimant instructed the Defendant, Hugh James Ford Simey Solicitors in 1999 to seek compensation for him under a governmental scheme (‘the Scheme’) set up to provide compensation to miners employed by British Coal (formerly National Coal Board) who developed VWF.

Damages under the Scheme were determined first by a medical assessment which would determine whether a claimant had VWF and the severity of it. Providing a certain level of severity was found, a presumption would be made that the claimant could not carry out certain household tasks without assistance, thus entitling him to an additional services award. To seek a services award a second medical assessment would be done but solely focusing on whether there was any other medical conditions which would have caused the inability to carry out household tasks without assistance (‘co-morbidity’). If another condition caused the co-morbidity then the presumption in favour of services damages could be rebutted.

The government claim handlers offered the Claimant £9,478 in full and final settlement of all claims he may have arising from his exposure to vibration during his employment with British Coal. This amount was the tariff award for general damages which the Claimant was assessed as entitled to under the Scheme but did not include any allowance for a services award, despite the Claimant having a presumption in his favour that he satisfied the qualifying requirements for a services award following his initial medical assessment. The offer was reported by the Defendant to the Claimant and they advised what would be involved should he wish to proceed with a claim for special damages. The Claimant stated that he did not want to proceed with a special damages claim and was happy to continue with general damages and would accept the offer. The offer was then accepted in February 2003.

Case background

In 2005 The Claimant instructed new solicitors, claiming that as a result of the Defendant’s negligent advice, the Claimant lost the opportunity to bring a services claim. On 22 October 2010 His Honour Judge Hawkesworth QC made an order relating to a number of other claims against solicitors arising out of the Scheme, providing that parties would instruct a single joint expert to assess the claimant. It was ordered on 3 May 2011 that his directions should apply to all prospective and existing claims alleging negligence against solicitors in relation to damages under the scheme. Therefore an expert was instructed to assess the Claimant.

At trial in March 2016 the claim was dismissed as whilst it was held that the claim was not time barred and the advice from the Defendant had been negligent, the judge held that the Claimant had suffered no loss, as the single joint expert’s report provided that the Claimant should not have qualified for a service award and that his general damages should have been significantly less.

In the Court of Appeal in 2018 it was held that the trial judge had been wrong to conduct a trial within a trial to determine the value of the Claimants claim under the Scheme, and to consider later expert evidence which was not available at the time of the Claimant’s original claim.

The Defendant appealed to the Supreme Court and permission was granted on the sole question of whether the prospects of success of the claim are to be judged as at the date when the claim was lost or at the date when damages are awarded.

The key issue

Whether the prospects of success of the claim are to be judged as at the date when the claim was lost or at the date when damages are awarded.

Therefore the court considered whether subsequently acquired expert evidence relating to the value of the original claim is admissible in a professional negligence action

Professional negligence appeal decision

It was assumed that the advice given by the Defendant was negligent and that had the Claimant received non-negligent advice he would have pursued a special award, on the basis that these findings of the trial judge had not been appealed. Therefore, in order for the Claimant to succeed it must be shown that in losing the opportunity to pursue the services claim, he had suffered a loss. Therefore it must be shown that there was a substantial prospect of success in obtaining the services award.

Under the Scheme a detailed medical assessment of the level of disability for each claimant was not required and the service awards were dealt with by the presumptions derived from the original medical assessment rather than requiring a precise assessment of the underlying disability. The second medical assessment for the service award, was limited to the issue of co-morbidity. There was also no provision under the Scheme whereby the government could appeal against an award of or reopen or reassess diagnosis. Therefore entitlement to damages and the procedures under the Scheme were different and distinct to civil proceedings, as the purpose of the Scheme was to deal with compensating large numbers of people efficiently, and not to determine in detail each person’s legal entitlement.

The expert’s report and his instructions differed significantly from the procedures under the Scheme and the expert was told not to apply the presumption in favour of the service award which the Claimant had following his first assessment. The expert’s report was not relevant to the issue of loss as it must be assumed that had the Claimant proceeded with his claim for service damages the Scheme’s procedure would have been followed. Therefore, he would have had a second medical examination to assess his co-morbidity, but would have had a presumption in favour of the service award from his initial medical assessment. There would not have been an equivalent of the later expert report and no reassessment of diagnosis and no reduction in the general award. The counterfactual situation should not have been altered by the later expert evidence as this would never have been commissioned under the Scheme. The trial judge should not have taken the expert’s report into account when deciding that the lost claim was of no value.

Citation: [2019] UKSC 54

Judges: Lady Hale, Lord Reed, Lord Lloyd-Jones, Lord Sales and Lord Thomas

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