The Supreme Court is to decide when the prospects of success of a claim lost because of the negligence of a solicitor should be judged for the purposes of damages, it announced yesterday.
It has granted leave for Welsh law firm Hugh James to appeal a Court of Appeal decision that they should be judged as at the date when the claim was lost.
Edwards v Hugh James Ford Simey (a firm) 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, in 2003 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, Thomas Watkins, died in 2014. His daughter has continued the claim on behalf of his estate.
He issued the claim against Hugh James in 2010. Mr Watkins was examined by a joint medical expert in 2013 for the purpose of this claim; however, his suffering was categorised at a significantly lower level than that of 2000: under the scheme, he would only have been offered £1,790 for general damages (rather than the £9,478 he received), and a services claim would not have been possible.
At first instance, Mr Recorder Miller found that Hugh James’s negligent advice led to Mr Watkins abandoning his services claim. This was unchallenged on appeal.
But relying on the 2013 medical evidence, the recorder held that Mr Watkins’ chose in action had no value given the damages already paid to him and dismissed the claim.
However, the Court of Appeal unanimously overturned this. Lord Justice Irwin 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, which refused permission to appeal, remitted the case for rehearing.
The Supreme Court has granted permission to address the circumstances in which the principle of full compensation (i.e. restitutio in integrum) is engaged.
It will also ask to what extent a court should admit evidence which was obtained after the date of settlement of the original claim when determining whether a claimant has suffered loss.
Meanwhile, tomorrow the Supreme Court will hand down its decision in Perry v Raleys Solicitors – another miners’ compensation case involving negligent advice over a services claim – on what needs to be proved when a solicitor is sued for failing to advise a client of a potential claim.