Car crash not to blame for lack of training contract, judge tells litigant-in-person

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10 August 2015


Judge Walden-Smith: Ms Berney “undoubtedly feels that it is very unfair”

A judge has told a litigant-in-person that a road traffic accident (RTA) she was involved in was not to blame for her failure to secure a training contract.

Susan Berney, representing herself at the High Court, claimed over £800,000 in damages from sole practitioner Thomas Saul for professional negligence over a personal injury claim which settled. Ms Berney had previously taken the case to the Court of Appeal on a limitation issue – and won.

However, Judge Karen Walden-Smith told her that the evidence did not establish that “she would, had it not been for the RTA, have been able to obtain a training contract”.

Judge Walden-Smith, sitting as a High Court judge, said it was “most significant” that Ms Berney had applied for training contracts before the accident and been rejected.

“The sad fact is that many competent individuals who would undoubtedly make good lawyers, fail to achieve that goal,” the judge said. “Ms Berney undoubtedly feels that it is very unfair.

“Her qualities as a lawyer were demonstrated before me, and before the Court of Appeal in the earlier appeal against the strike-out.

“However, that does not mean that it is the RTA that has caused her not to become a solicitor and I find no connection between the RTA and her inability to find employment as a solicitor.

“If I am wrong about that and she would have otherwise have obtained a contract, such a contract would not have been with a City firm (Ms Berney accepted that was an unrealistic goal) and it would have been in a small firm, undertaking publicly-funded work.”

Delivering judgment in Berney v Thomas Saul & Co (Case no. HQ13X04399), reported by Lawtel, the court heard that Ms Berney settled her personal injury claim for £25,000 in November 2005.

Her solicitor, Manchester sole practice Thomas Saul & Co, had issued the claim but failed to file the particulars “in time or at all”. Ms Berney issued a professional negligence claim in 2011, which the law firm failed to strike out, following a hearing in the Court of Appeal.

Judge Walden-Smith said the defendant had now admitted liability for negligence, leaving causation and quantum to be determined.

She praised Ms Berney for the “calm and logical manner in which she presented her case”, saying that proceedings were only halted once, when Ms Berney “broke down completely when describing how she had not achieved her wish to become a solicitor”.

However, the judge said in order to prove her claim that the RTA resulted in “loss of chance” to recover more than the £25,000 plus costs that she had recovered in the settlement, Ms Berney needed “credible and convincing evidence”.

Judge Walden-Smith described the “immediate diagnosis” for Ms Berney as a “moderately severe whiplash”, which even on a “generous assessment” would not allow her to recover more than £5,000 to £6,000, together with up to £3,500 for her phobia of cars and claustrophobia.

In all the circumstances the judge concluded that Ms Berney would not have been likely to recover “anything more than £10,000” and did not have a “real, rather than fanciful, prospect” of recovering more than £25,000. She dismissed Ms Berney’s claim.

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