Loss Of Chance. Professional Negligence

In Chweidan v Mishcon de Reya [2014] EWHC 2685 (QB) the court summarised how damages are quantified and calculating loss of chance in professional negligence claims. During 2008 the Claimant, who was a former employee of JP Morgan, brought an action in the Employment Tribunal against JP Morgan. His solicitors, the Defendants in this action, acted for him in that matter.

The Claimant had been involved in a serious ski accident whilst with a client and was awarded compensation for unfair dismissal and discrimination in and around £550,000. He had suffered permanent injury as the result of the accident. However, on appeal, his claim for age discrimination, was overturned.

This case centres around the failure by the Defendant solicitors in 2011 to lodge in time a cross-appeal on behalf of the Claimant which resulted not only in the Claimant having his compensation dramatically reduced to £68,000 but further, he became liable for the costs which more than exceeded that sum.

The Defendants did admit responsibility for failing to lodge the cross-appeal in time. They contended, however, that as the Claimant’s appeal did not have much chance of success anyway then that failure did not, in any event, impede any expectations he might have had.

However, the Claimant sued the Defendant for loss of chance of recovering damages in respect of that failure citing that the Defendants had also neglected to advise him or assist him properly so that his allegations against J P Morgan could be properly dealt with, that is, within the bounds of the grievance procedure laid down by law. As a consequence of that failure by the Defendants, the Claimant contended that he had suffered harm.

The Judge in the case, Mrs Justice Simler, found the Defendants to have been negligent in failing to make the cross-appeal in time but with regard to the other matters raised by the Claimant, she found they did not have a case to answer, there was no breach.

The Judge’s decision for calculating the loss of chance was outlined by her as follows:

  • The Claimant had to prove that the success of his claim against the Defendants had a real and substantial prospect of succeeding and not just negligible.
  • If the Claimant’s claim does have a real and substantial prospect of succeeding and even if there had been a small chance of that happening, then it would be up to the Court to carry out a realistic assessment of the prospects of success on the basis that the original litigation carried on through to trial.
  • If the original litigation had gone to trial then the Court should on that basis assess the likely level of damages which the Claimant might have recovered and then apply to that said level of damages a calculation to take account of the uncertainty of recovering the full amount.
  • In some loss of a chance cases it may be the right thing to look at the prospects on a wide-ranging basis and in other cases look at the prospects in greater detail.
  • On making an assessment of the case any oral or documentary evidence and whether there might have been a possibility of settlement, are all the aspects that have to be factored in to be able to deliver that assessment.
  • In the event of there being “separate hurdles” then the percentage prospects applicable should be multiplied so as to give an overall lower percentage prospect for a success.

The Judge calculated the Claimant had, on looking at his case against J P Morgan in greater detail, an overall prospect of success of 18%, a 50% chance of success in the age discrimination cross-appeal and for the whole case after that appeal, 33%. On applying the overall percentage for success this came to 16%. The Judge slightly increased this prospect to the above 18% to take into account the possibility of the Claimant having won his cross-appeal in the event that J P Morgan may have been convinced to settle the matter.

The Claimant was awarded the sum of more than £66,000 against the Defendant Solicitors which sum included damages and interest.

“Although I have found that the chances of success were limited, there was more than a negligible prospect of the Claimant succeeding on appeal and having done so, proving his unlawful age discrimination claims. In those circumstances, the breach of duty was the effectaive cause of these lost opportunities.”

“The Claimant is accordingly entitled to recover damages for the loss of opportunity suffered as a consequence of the Defendant’s breach.”


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