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Claim over solicitors’ negligence fails to establish loss of chance

Immigration: Only loss was expense of Home Office application

A married couple has largely failed in a claim of negligence against a firm of solicitors which had admitted that it failed to advise properly on a separate negligence case against another law firm.

The High Court awarded nominal damages for a small aspect of the claim, but found the couple had otherwise failed to show they had lost anything of value.

Balti chef Javed Waraich and his wife Farah claimed Manchester firm Ansari Solicitors failed to advise them to issue a claim against another firm of solicitors, Khan’s, within the limitation period.

They said Khan’s had negligently handled the former’s application for leave to remain, leading to his work permit expiring.

His Honour Judge Pearce, sitting as a High Court judge in Manchester, explained: “This is alleged to have caused delay in [Mr Waraich] and his family obtaining indefinite leave to remain in the United Kingdom and in turn to have caused them to lose the chance of getting British nationality by the time of the trial.”

In Waraich & Anor v Ansari Solicitors (A firm) [2019] EWHC 1038 (Comm) [1], the claimants sought just over £820,000, including for legal costs against the Home Office for applications they claimed would have been unnecessary, loss of earnings, and other alleged losses stemming from being in the country as overstayers, including a bankruptcy.

Ansari admitted breach of duty on the basis of a retainer and common law duty of care against Mr Waraich and breach of a common law duty of care against his wife, but denied the couple had suffered any loss as a result, arguing their claim against Khan’s was doomed to failure.

HHJ Pearce found that the claimants would have issued proceedings against Khan’s within the limitation period.

“The claimants have shown considerable willingness to pursue litigation,” he said.

“The very fact of pursuing this claim to trial shows a willingness on their part to do so, even if it has involved them in cost, and a willingness on the part of lawyers to pursue the claim.”

The judge continued by saying, although the advice given by Khan’s on the basis for the application for leave to remain was negligent – because it was based on human rights rather than work permit grounds – “the case as advanced by the claimants simply fails to show any clear route to the earlier grant of leave to remain.

“It is always possible that an earlier application may have led to a better outcome. But the court has no material on which to begin to assess the chance of this.”

The loss of chance was therefore “speculative”, and only a claim for £2,750 lost on the application for leave to remain had very good prospects of success.

No other aspect of the claim was “quantifiable as a loss of chance”.

The claimants “are convinced that their lives during the last 12 years have been blighted by the failure of Khan’s to advise on bringing the right application”, the judge said, and the claim against the firm would have had “a settlement value”.

But HHJ Pearce said there would have been little prospect of settlement “without a degree of insight on the part of the claimants as to the weakness of their case and the lack of evidence in support. They would have had to forego nearly all of their claim”.

Even if the claim had settled without going to trial, it was “highly unlikely” that the £2,750 in damages together with interest would have exceeded the irrecoverable costs.

“If, as I consider to be more likely, the claimants would have pursued an unrealistic claim to trial (just as they have here), the overwhelming likelihood is that their damages award would have been swallowed by their own irrecoverable costs or conceivably an adverse costs order.

“Given the sums at stake, I am driven to the conclusion that the claimants cannot be said to have lost anything of value in this claim. What they have lost is the chance to pursue a claim of very modest value, the cost of doing which would have far exceeded that value.”

Mr Waraich won judgment for nominal damages on his contractual claim, but the claim in tort failed.