Loss of the Ability to Bring Litigation

September 27, 2025

The Loss of the Ability to Bring Litigation: Legal Principles, Consequences, and Remedies

This article examines the situation where a valid claim becomes time barred or otherwise non viable due to a lawyer’s negligence, depriving the client of their day in court. It explores the duties solicitors owe to prevent such losses, how English law values the lost opportunity to litigate, and what damages and remedies are available.

Duty to Protect the Client’s Right to Litigate

A solicitor handling a contentious matter has a fundamental duty to preserve the client’s ability to bring their claim. This means meeting court deadlines and limitation periods. Failing to issue proceedings within the applicable limitation period – the time limit set by statute – is one of the clearest breaches of duty in litigation practice. Courts have repeatedly emphasised that allowing a valid claim to become statute barred (i.e. extinguished by time) is virtually indefensible.

A solicitor who negligently lets a claim become time barred has no real excuse; it is prima facie professional negligence. English case law makes clear that missing a limitation date or a court deadline without justification will almost always breach the duty of care owed to the client. The client’s original cause of action may be lost forever once time expires, leaving a professional negligence claim against the solicitor as the only remaining avenue. Given the gravity of depriving a client of their day in court, courts treat such solicitor errors very seriously.

The Nature of the Loss: A ‘Lost Claim’ and the Principle of Loss of Chance

When a solicitor’s negligence causes a client to lose the ability to litigate, what exactly has the client lost? The law characterises it as the loss of a chance to obtain a benefit, or avoid a loss, through the original legal action. Even if the underlying claim was not guaranteed to succeed, the client had a valuable opportunity which, if it was a real and substantial claim, is considered an asset with measurable value. This was established as far back as Kitchen v Royal Air Force Association [1958] 1 WLR 563 (CA), where a solicitor missed a limitation deadline for a widow’s dependency claim. The defendant argued the widow might have lost the claim anyway, so she lost nothing. The Court of Appeal disagreed: by losing her chance to pursue the claim, she lost something of value and was entitled to be compensated for that lost chance. In other words, the courts recognise a lost claim as a form of actionable damage, provided the lost claim had merit. Lord Evershed MR emphasised that damages should not be “all or nothing” on the balance of probabilities; instead the court must ask if the claimant lost a real and substantial chance, as opposed to a speculative or fanciful one, of success.

However, not every lost claim will be compensable. The courts draw a line between substantial chances and mere speculation. The lost claim must have been an honest and non-futile one. As Lord Briggs put it in Perry v Raleys Solicitors [2019] UKSC 5, “the court simply has no business rewarding dishonest claimants.” If the underlying claim was based on fraud or if the client would have had no credible prospect of securing any recovery, then losing that chance is not something the law will compensate. The claimant in a negligence claim must show that the original case was at least legitimate and serious – not a hopeless cause or a fraudulent enterprise. Only real, substantive opportunities are protected. If such a real opportunity was lost, the law treats it as a compensable head of loss under the loss of a chance doctrine.

Losing a claim due to solicitor negligence is treated as a distinct form of damage: the lost chance at a legal remedy. The client does not have to prove that they definitely would have won the original case (often that cannot be known); they must prove the opportunity had genuine value. This approach protects clients by valuing what was taken from them – namely access to justice – while preventing windfalls for claims that were trivial or fabricated.

Causation and Evaluating the Lost Chance: The Two-Stage Test

Successfully suing a solicitor for a lost litigation opportunity involves a causation analysis, often described as a two-stage test. This framework was cemented by the Court of Appeal in Allied Maples Group v Simmons & Simmons [1995] 1 WLR 1602 (CA), with a companion case Brown v KMR Services Ltd [1995] 4 All ER 598 (CA) confirming that the loss of a litigation opportunity is an actionable loss of a chance. These principles were later reaffirmed by the Supreme Court in Perry v Raleys Solicitors [2019] UKSC 5.

For its part, the Court of Appeal in Mount v Barker Austin [1998] PNLR 493 (CA) provided further guidance on the burden of proof in these lost chance cases. The claimant carries the legal burden of showing that, by losing the opportunity to pursue the original claim, they lost something of real value – i.e. that the underlying claim had a substantial, not merely negligible, prospect of success. Meanwhile, the negligent solicitor bears an evidential burden if contending that the original claim was valueless; courts have indicated this is a heavy burden for the solicitor, especially if they never warned the client that the claim was hopeless.

Stage 1: Client’s Hypothetical Actions (Balance of Probability)

But for the solicitor’s negligence, would the client have pursued the underlying claim? The claimant must prove on the balance of probabilities (i.e. >50% likely) that if the solicitor had done their job properly, the opportunity to litigate would have been taken up. This often involves a “trial within a trial” on the issue of the client’s intention and the claim’s honesty. For example, in Perry v Raleys, the claimant had to prove that, properly advised, he honestly would have made a certain compensation claim for a hand-arm vibration injury that his solicitors failed to pursue. The trial judge found the claimant would not have made an honest claim – he was found not credible – so the case failed at Stage 1 because there was no genuine lost chance to begin with if the client would not have acted. Courts will scrutinise the claimant’s evidence and credibility at this stage, since a claimant cannot recover for a chance they would not (or legally could not) have pursued. This stage is effectively all or nothing: if the client fails to show they would have gone ahead with the claim, the professional negligence claim fails outright. If the client succeeds in proving this threshold issue – that they would have pursued the claim and it was a real claim – then we move to Stage 2. The Supreme Court in Perry overruled the Court of Appeal’s more lenient approach, making clear that a “trial within a trial” on the claimant’s honesty and intent is permissible at Stage 1. Perry confirms that the Stage 1 inquiry can include fact-finding on the claimant’s own intentions and honesty, even if this entails scrutinising evidence much as one would in the original claim; this is not an improper “trial within a trial” because it goes to the fundamental causation issue.

Stage 2: Outcome of the Hypothetical Claim (Loss of Chance Valuation)

If Stage 1 is met, the court then assesses the probable success and value of the lost claim. Notably, the client does not have to prove that winning the original case was more likely than not. At Stage 2, even a less-than-50% chance of success is compensable. The court puts itself in a hypothetical time machine, considers how the original claim would have played out (including how third parties like opposing litigants, judges, or juries might have acted), and assigns a percentage probability to the outcome. The damages awarded against the solicitor are then calculated as that probability percentage of the original claim’s value. This approach, originating from Allied Maples and earlier authorities, ensures the client is compensated for the lost chance itself, and not automatically given the full face value of the original claim, except in the situation where the court is satisfied the claim would have certainly succeeded, in which case 100% of the loss is recoverable.

Notably, courts strive to avoid turning Stage 2 into a full re-trial of the original case. Lord Briggs in Perry reiterated that “it is generally inappropriate to conduct a trial within a trial” when evaluating the lost chance. The idea is to assess the prospects in broad terms, often using the available evidence and some common sense judgment of the uncertainties without requiring the claimant to prove every detail of the hypothetical case.

Settlement chances and other scenarios: Part of evaluating the lost chance may include considering whether the case would likely have settled out of court, and for roughly how much. Many cases end in settlement rather than judgment, so a lost chance case can involve lost settlement opportunities. Judges may factor in, for instance, that but for the negligence, the client had a 50% chance to settle for £50,000 and a 50% chance to go to trial and possibly win £100,000 (or lose everything). Such complexities are folded into the percentage valuation. Additionally, the court might consider the impact of litigation costs – if the original claim would have incurred significant legal expenses or risk of an adverse costs order, the net lost benefit might be lower. All of these are assessed in a rough-and-ready but principled way to arrive at a fair monetary value for what the client was deprived of.

Summary of the two-stage test: The claimant must first prove that the solicitor’s breach caused them to lose a real opportunity and that, on balance, they would have pursued it. Once that is established, the lost opportunity is valued by assessing the likelihood of various outcomes of the foregone litigation. This ensures the client is compensated in proportion to the merits of the claim they never got to fight. The law thereby threads a needle: holding negligent lawyers accountable for robbing clients of chances, while avoiding windfalls by not automatically assuming the lost case was a guaranteed win.

Damages for Lost Litigation Opportunities: Compensation Principles and Limits

Once causation is proven and the lost chance quantified, the next question is how damages are calculated and what can be included. The goal, as with all negligence cases, is compensatory: to put the claimant in the position they would have been in had the solicitor not breached their duty, insofar as money can. In practical terms, that means replicating the outcome of the underlying claim (or the value of the lost chance of that outcome) in the form of a damages award against the solicitor. Several legal principles come into play in assessing these damages.

The Compensatory Principle Applied

The court will award a sum of money that represents the value of the lost claim to the client. If it was virtually certain the client would have recovered a specific amount in the original litigation, then the full amount, plus any ancillary losses like interest, is recoverable. Conversely, if success was uncertain, the award is the probability-weighted portion (as discussed earlier). Importantly, the damages in the negligence case are assessed at the time of trial of the negligence claim, with the benefit of hindsight up to that point. For example, if the underlying claim was about recovering investment losses, and by the time of the negligence trial some of those losses have been mitigated or exacerbated by later events, the court may consider those in valuing the chance.

However, the courts will not use hindsight to introduce new evidence that was unavailable during the original litigation. In Edwards v Hugh James Ford Simey [2019] UKSC 54, the Supreme Court confirmed that the lost chance should be assessed on the facts and evidence as they stood when the underlying claim was lost, without relying on later-acquired material that was not available at the time. In that case, the defendant solicitors argued that a medical report obtained years after the original claim showed the claim had no value, but the Court deemed such later evidence irrelevant to the loss assessment since it would never have been obtained in the original proceedings.

English courts have adopted a pragmatic approach – the court must do the best it can to value the lost chance. This sometimes means educated guesswork, but it is guided by evidence of how strong the case was, expert opinions on prospects, etc. The overarching aim is that the client receives fair compensation for what was lost, no more and no less.

A recent example is Forster v Reynolds Porter Chamberlain LLP [2023] EWHC 1150 (Ch), where the solicitors’ conflict of interest led to delay in enforcing a £750,000 settlement. By prioritising recovery of their own fees, they allowed the defendants time to dissipate assets, and the client lost the chance to recover approximately £350,000 that would otherwise have been realised. The High Court held that this was a compensable loss of chance. The case demonstrates that such claims are not confined to missed trials; they extend to the loss of opportunities to enforce or recover on settlements and judgments, and it also underlines the overlap between professional negligence and a solicitor’s fiduciary duties.

Heads of Loss in a Lost Litigation Claim

In calculating damages, the primary component is the lost judgment or settlement sum from the underlying case, adjusted for chance. However, other related losses can be claimed too, so long as they were caused by losing the litigation. Common heads of loss include:

The lost principal claim value: e.g. the damages or monies the client would have obtained had the original case succeeded, or a percentage thereof reflecting the chance.
Interest on that sum: If the original claim would have delivered a sum of money for past losses, the client is often entitled to interest from the date it would have been received (or from the judgment date in the lost case) up to the date of the negligence trial. This ensures the client is compensated for the time value of money lost by the delay. The solicitor may have to pay an equivalent of judgment interest that the defendant in the underlying case would have paid on the award.
Wasted costs: If the client spent money on legal fees or court costs in pursuing the now-lost claim before it was derailed by negligence, those out-of-pocket expenses can be claimed, provided they are unrecoverable otherwise. For instance, if a solicitor negligently handled proceedings that got struck out, the client might have paid a court fee and some counsel fees; these become wasted expenditure caused by the solicitor’s breach.
Additional costs of new litigation: Sometimes pursuing the professional negligence claim itself is costly (though in England one can usually recover a portion of legal costs from the defendant solicitor if successful, separate from damages). Generally, the legal costs of suing the solicitor are dealt with by costs orders, not as damages; accordingly, they are not included in the damages sum that the court assesses, except insofar as they reflect something the client lost (e.g. if the client had to pay a second lawyer to try, futilely, to revive the original case).
Loss of chance of a better settlement: If the solicitor’s negligence caused the client to lose an advantageous settlement — for example, the opponent had offered money to settle which was not properly communicated or which was withdrawn due to delay — that lost opportunity could be valued and claimed as the lost chance of settling.
Damages for distress/inconvenience: Only in uncommon cases have courts awarded a modest sum for mental distress caused by the solicitor’s negligence, and then only in specific circumstances. Generally, English law does not award damages for mental anguish in negligence cases except where the contract or retainer was supposed to provide peace of mind or freedom from distress. In the context of litigation, there is an exceptional case, Heywood v Wellers [1976] QB 446 (CA), where a firm’s negligence in failing to secure an injunction led to a woman continuing to be harassed by her stalker; she recovered a small amount for the anxiety and distress that resulted. This was because preventing that kind of harm was the very purpose of the legal action she lost. Such awards are rare and typically capped at fairly low sums (in Heywood, about £125 in 1976, which today would be only a few hundred pounds). The general rule is that losing a legal case, or having to sue your solicitor, is primarily an economic loss, not one that attracts pain-and-suffering damages, unless the solicitor’s breach foreseeably caused additional personal hurt.

In summary, the damages aim to mirror the financial position the client would have achieved had the original litigation gone as it should have. This includes the monetary award (if any) from the lost case, plus any reasonably connected losses. It is not intended to punish the solicitor (there are no punitive damages in this area), nor to provide a windfall to the client beyond what the law would have given them in the first place.

Remoteness and Foreseeability Constraints

Even in professional negligence, not all consequences of a breach are recoverable – the usual rules of remoteness apply. A loss must have been a reasonably foreseeable consequence of the solicitor’s negligence (in tort) or not too remote a result of the breach of contract, and it must fall within the scope of the duty the solicitor undertook. In lost litigation cases, most losses are straightforward: the very thing the solicitor was instructed to do was to prosecute the claim, so failing that, the loss of the claim is squarely within the scope of duty. It is foreseeable that missing a deadline or messing up a filing will cause the claim’s failure; that’s exactly the risk the solicitor is meant to guard against.

But consider an extreme scenario: suppose the solicitor’s delay caused a case to be struck out, and as a result the client’s business went under (not because of the lost claim’s value but because the client interpreted the failure as a sign to close the business). Massive downstream losses that were not within the contemplation of the retainer might be deemed too remote. The courts would ask: what was the purpose and scope of the solicitor’s duty? If the duty was to litigate a claim worth £100,000, the solicitor is not an insurer of the client’s entire business’s fate; therefore, a claim for a multi-million-pound consequential business collapse might fail as too remote or outside the scope of what the solicitor undertook. This inquiry often overlaps with the “SAAMCO” principles from cases like Manchester Building Society v Grant Thornton [2021] UKSC 20: one looks at the risk the professional was responsible for versus outcomes caused by extraneous factors. Generally, losing the case itself, and the direct fruits of that case, is within scope, but any additional knock-on effects may be scrutinised.

Another remoteness aspect is the concept of novus actus interveniens, if some intervening act breaks the chain of causation. For example, if after the solicitor’s negligence, something else happens that truly supersedes it in causing the loss, the solicitor may not be liable for losses beyond that break.

Multiple Defendants (Sharing Liability)

It is not uncommon that more than one professional may have contributed to the loss of a legal claim. For instance, perhaps an initial firm of solicitors missed the deadline, and a second firm also failed to remedy it; or a solicitor and a barrister both handled the case negligently. Notably, the long-standing immunity of barristers from being sued for negligence in their conduct of a case was abolished by the House of Lords in Hall v Simons [2002] 1 AC 615 (HL). Accordingly, a barrister can now be held liable for negligent advocacy just as a solicitor can, meaning both can be defendants if their errors cause a client to lose a claim. In such scenarios, the law allows for apportionment of liability between the wrongdoers. The claimant can sue any or all of the responsible parties, and if liability is established, those parties can sort out between themselves who pays what portion, usually through contribution claims under the Civil Liability (Contribution) Act 1978.

From the client’s perspective, a key point is that the law provides for joint and several liability: the client can recover the full amount of their loss from one defendant if that defendant is found liable, even if another party was also negligent. It’s then up to that defendant to pursue contribution from the others. For example, suppose a solicitor and a barrister each negligently let a case slip – perhaps the solicitor missed the deadline and the barrister gave bad advice that contributed. The court might find them each partly liable, for example, 60% fault on the solicitor and 40% on the barrister, based on their relative blame. In Percy v Merriman White & Ors [2021] EWHC 22 (Ch), a law firm sought contribution from a barrister after settling with the client; the court held the barrister 40% responsible and the solicitors 60%, considering who had more opportunity to avert the loss. On appeal, the Court of Appeal in Percy v Merriman White [2022] EWCA Civ 493 confirmed this apportionment approach but further clarified the contribution principles. It emphasised that a settling defendant (here, the solicitors) must still prove the other professional’s negligence and causal responsibility for the loss in order to recover a contribution.

Section 1(4) of the 1978 Act prevents the contribution defendant (the barrister) from arguing that the settling party was never liable to the original claimant, but it does not automatically render that defendant liable without proof of fault. In Percy, because the solicitors had not adduced evidence of what the client would have done with proper advice to show that the barrister’s omission caused the loss, their contribution claim ultimately failed on causation grounds. Nonetheless, the case illustrates that when multiple professionals are at fault for the same lost chance, the court will still apportion responsibility between them (as in the 60/40 split above), once each party’s negligence is established. The Contribution Act allows the court to decide what apportionment is just and equitable on the facts.

For clients, the benefit is that they do not have to perfectly untangle who was how much at fault before obtaining compensation. If a client’s solicitor and, say, an expert or a barrister both dropped the ball, the client can bring a claim against the solicitor for the whole loss; the solicitor can then join the other professional as a third party or pursue them separately for their share. The court’s focus in the main trial might be on the solicitor’s liability, but if contributory claims are involved, evidence will be heard on the other parties’ roles too, and the judgment can allocate proportions. Under the 1978 Act, as long as two parties are liable for the same damage to the claimant, one can seek contribution from the other.

In practical terms, if multiple professionals are defendants in the same action and the court finds each negligent, the court will typically state an apportionment of fault. The claimant would then be awarded one sum, and the defendants are left to contribute in the stated proportions – or one pays and then recovers from the others. If proceedings are separate, a defendant found liable can later sue any others who are also responsible. The bottom line for a claimant is that they should be fully compensated (subject to the chance valuation of the claim) without worrying about the internal splits (that’s a matter for the professionals and their indemnity insurers).

Practical Consequences and Risk Management Lessons

Finally, beyond the legal principles, there are important practical takeaways from these cases for both solicitors aiming to avoid such mistakes and for clients to protect their interests.

Use of Expert Evidence: Usually Unnecessary in Solicitor Negligence Cases

In many professional negligence claims (e.g. against doctors, accountants, architects), expert witnesses are called to give an opinion on what a competent professional should have done in the circumstances. In claims against solicitors and barristers for litigation-related negligence, it is rare to need expert evidence on the standard of care. This is because judges themselves are legal experts; a court (often a High Court or Circuit Judge with a background in litigation) is well equipped to assess whether a solicitor’s conduct fell below the reasonable standard. The court does not usually need another lawyer to tell it what the normal practice is in procedural matters or whether missing a deadline is a breach; these are seen as within judicial notice.

Indeed, courts generally disallow expert testimony on issues of law or legal practice in such cases, because determining those issues is the court’s own role. For example, a party cannot call a solicitor expert to testify that “in my opinion, failing to issue a claim form by the limitation date is negligent”; that is for the judge to decide. The exception might be if a case involves a highly specialised area of legal practice outside the judge’s experience – say, a niche foreign law procedure or a very unusual commercial practice. In one case, Pantelli Associates v Corporate City Developments [2010] EWHC 3189 (TCC), it was observed that solicitor negligence cases, save in exceptional niches, do not require expert evidence (unlike other professions where a judge might need education on technical standards).

Conclusion

Losing the ability to pursue one’s claim because of a solicitor’s negligence is a profoundly frustrating scenario; the very person hired to fight for a client’s rights has, inadvertently, impaired them. Fortunately, the law provides a form of redress: though the client may never get their day in court for the original dispute, they can seek compensation for that lost opportunity. The principles discussed (from the solicitor’s strict duty to avoid time bar mishaps, to the valuation of lost chances, and the limits on what damages can be claimed) all aim to balance fairness to clients with reasonable boundaries of liability for lawyers.

For clients, the key message is one of reassurance: if a valid claim was derailed by a lawyer’s error, not all is lost. The legal system allows the client to recover the essence of what was lost, in monetary terms, and holds professionals to account. Indeed, solicitors themselves carry mandatory insurance for this very reason, to ensure clients can be made whole if such mistakes occur.

Contact Carruthers Law

If you suspect that your claim was lost due to a solicitor’s negligence, contact Carruthers Law for a free, confidential discussion. Call us on 0151 541 2040 or 0203 846 2862, or email info@carruthers-law.co.uk.

Disclaimer: This article is provided for general information purposes only and does not constitute legal advice. Carruthers Law accepts no responsibility for any reliance placed on the contents. This article may include material from court judgments and contains public sector information licensed under the Open Justice Licence v1.0.

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