Negligent solicitors face damages rehearing after Court of Appeal ruling

Miner: Latest of many claims

The Court of Appeal has overturned a ruling that leading Welsh firm Hugh James did not have to pay a former client damages even though it had provided negligent advice.

It is the latest in a long line of negligence cases to come out of the government’s miners’ compensation scheme, the fallout from which has dogged the profession for more than a decade.

The decision is another involving a former miner who was awarded general damages but then, on negligent advice, decided not to pursue a services claim, which would compensate for everyday tasks he could no longer carry out himself as a result of the injury, such as gardening, DIY and window cleaning.

The original claimant in Edwards v Hugh James Ford Simey (a firm) [2018] EWCA Civ 1299, Thomas Watkins, died in 2014. His daughter has continued the claim on behalf of his estate.

In February 2003, Hugh James received an offer of £9,478 “in full and final settlement” of the claims under the vibration white finger (VWF) scheme. An interim payment had already been made.

By then, Mr Watkins had lodged his claim for services. If he accepted the offer, he would receive the balance of the money and the services claim would be at an end. If he wished to pursue it, however, he would receive a further interim payment.

Hugh James then wrote a letter to him which, at first instance, Mr Recorder Miller found was “misleading or deficient”.

Lord Justice Irwin recounted: “It was a standardised client letter, not bespoke, and it is clear will have been similar or identical to that written to many others.

“It advised the deceased that to pursue the case he would need to make and support such a claim with evidence, when in fact he had already done so. It advised him of delay.

“The letter failed to advise him that he would receive the additional interim payment soon, if he proceeded with the claim.

“The letter was concluded in terms which (as the Recorder found) the deceased was likely to misunderstand, as meaning that unless the VWF was the only cause of his inability to perform a task, he had no services claim in respect of that task.

“In fact the scheme provided a sliding scale in relation to co-morbid conditions, and it would only be where a relevant disability arose completely from the co-morbid condition, that the claim for the relevant task would be rejected.

“The letter also implied that the deceased might be liable for future costs of the claim, whereas his ‘no win, no fee’ claim would apply throughout. Lastly, the letter made no attempt to quantify the likely outcome for the deceased if he pursued his claim.”

The conclusions “as to the negligent deficiencies in this advice” were unchallenged on appeal.

On damages, the Recorder found that, on the basis of evidence available after the events took place, the services claim had no chance of success.

However, the Court of Appeal unanimously overturned this. Irwin LJ said the assessment was “of the value of the lost claim, not a trial of the original cause at the time of the negligence claim”.

He added: “What the claimant should recover in the professional negligence claim is not established by answering the question: how much of the original claim can he prove now? Rather it is established by answering the question: what was the value of what he lost then?”

The appeal court remitted the case for rehearing.

Permission to appeal to the Supreme Court was refused but a Hugh James spokesman said the firm was considering an appeal and so declined to comment further.

The Supreme Court is, however, set to review what needs to be proved when a solicitor is sued for failing to advise a client of a potential claim in another miners’ compensation case.

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