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Professional Negligence Solicitors

Did the Supreme Court set a new test for assessment of damages in professional negligence cases? (25 November 2019)

Date: 25/11/2019
Duncan Lewis, Professional Negligence Solicitors, Did the Supreme Court set a new test for assessment of damages in professional negligence cases?

The recent decision in the case of Edwards on behalf of the late Thomas Arthur Watkins (Respondent) v Hugh James Ford Simey Solicitors ( Appellant) 2019 UKSC 54 is worth analysing.


What happened in that case?

This is a fall out from the miners’ claim for vibration white finger (VWF). In 1999, a statutory scheme was set up the Department of Trade and Industry (DTI) to handle miners’ claims for VWF. The scheme was straightforward and miners who believed that they suffered from VWF would make an application, go through a medical examination and subsequently have the option to either accept an offer for general damages or pursue a claim for special damages for assistance with domestic tasks (‘services award’).

In February 1999, Mr Watkins instructed the Hugh James Ford Simey Solicitors to pursue a VWF claim. He attended a medical examination and the report supported a claim for general damages and a presumption in his favour that he satisfied the qualifying requirements for services award.

Mr Watkins chose to pursue a services award but the DTI initially denied his entire claim for both general damages and services award.

Hugh James Ford Simey Solicitors appealed against the DTI’s decision to reject Mr Watkins’ claim. In February 2003, the DTI made an offer in the sum of £9,478 to Mr Watkins in full and final settlement of all of his claims. The offer made did not include an allowance for a services award. Mr Watkins, based on advice from his solicitors, accepted the offer made by the DTI.

Five years later, Mr Watkins saw a newspaper advertisement offering assistance to any ex-miner who may have settled an undervalued VWF claim. He contacted the solicitors that placed the advert and instructed them to issue a professional negligence claim based on loss of chance against Hugh James Ford Simey Solicitors in Leeds County Court.

On 22 October 2010, Judge Hawkesworth QC directed that expert evidence should be obtained in the form of a report by a single joint expert. The order was made in relation to six tests cases that were selected from the number of professional negligence claims against solicitors that acted for ex-miners. Mr Watkins’ claim was not one of the test cases that was selected, but the order applied to all prospective and existing claims arising out of the same facts, and that included his claim.

Based on the above order, a single joint expert, Mr Tennant, a consultant vascular surgeon, was appointed to examine Mr Watkins and then prepare a report on whether or not he was entitled to a services award. In the expert’s opinion, Mr Watkins would only have been entitled to £1,790.00 for general damages and a services claim would not have been possible.

Mr Watkins’ claim was dismissed in the County Court on the basis that he was overcompensated and could not have been entitled for a services claim.

Mr Watkins appealed.

The Court of Appeal upheld Mr Watkins’ argument that the County Court judge was wrong to conduct a trial within a trial to determine the value of Mr Watkin’s claim against the DTI and his entitlement to a services award. It was further held that the County Court judge was wrong to determine the claim on the basis of the expert evidence which would not have been available at the time of Mr Watkins’ notional services claim under the scheme.

Thereafter the solicitors, this time around, the Appellants, appealed the Court of Appeal decision. At the Supreme Court, the Appellants’ argument was eventually confined to the issue of admissibility in a professional negligence action of a subsequently acquired evidence, in this case, the expert report.

In a unanimous judgment, the Supreme Court dismissed the appeal on the basis that there was no justification for considering the new medical report, which would never have been commissioned in the original claim, nor for reassessing the diagnosis or staging set out in the medical evidence obtained at the time. Accordingly, the new medical evidence was not relevant to any issue before the court. The Supreme Court was of the view that Mr Watkins’ original claim was a claim within the scheme and not one made in the course of conventional civil litigation and therefore the only evidence relevant to the issue of loss was the nature and operation of the Scheme.


Commentary

It is not surprising that the Supreme Court found for the Respondents and upheld the Court of Appeal decision.

Firstly, the Appellants did not appeal the decision of the County Court in relation to a negligent breach of duty based on the fact that their letter of 18 February 2003 to Mr Watkins was misleading and deficient in a number of respects.

Secondly, Mr Watkins’ original claim was one that was assessed under the scheme, therefore the issue of loss can only be assessed based on the nature and operation of the scheme. The scheme was set up to deal with the huge number of VWF claims in a way that was broadly fair. To assess the issue of loss outside the nature and operation of the scheme would have been wrong.

There has been quite a few commentators on both sides arguing against and in favour of the Supreme Court decision. However, it is not hard to fathom why the Supreme Court ruled against the Appellants. The fact that there was a mechanism for calculating VWF claims was a factor in assessing the issue of loss. If this was based on an ordinary civil action, it may be argued that the decision expanded the issue of loss, however the fact specifics of this claim makes the decision arguably correct.



Author Anthony Okumah is a Director and Head of the Duncan Lewis Civil Litigation and Professional Negligence Department. He specialises in dispute resolution (litigation, arbitration or mediation), professional negligence claims predominantly against solicitors, debt recovery; insolvency; contractual disputes, leasehold disputes and contentious probate cases. Anthony also has an in-depth experience of boundary and neighbourhood dispute cases and additionally he regularly conducts his own advocacy in both the County Court and the High Court which allows him to represent his clients throughout their retainer.

Contact Anthony on 020 3114 1227 or email him on anthonyo@duncanlewis.com



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