Legal News

Law firm Leigh Day had a professional negligence claim brought against them after a client was unsuccessful in bringing a clinical negligence claim against the hospital where her father died.

Generally speaking, damages are not awarded for distress and inconvenience in a professional negligence context. In the case of Watts –v- Morrow, Bingham LJ stated as follows,

"A contract-breaker is not in general liable for any distress, frustration, anxiety, displeasure, vexation, tension or aggravation which his breach of contract may cause to the innocent party. This rule is not, I think, founded on the assumption that such reactions are not foreseeable, which they surely are or may be, but on considerations of policy.”

Binghman LJ went on to state that the above rule was not absolute. In his view, where the very object of a contract is to provide pleasure, relaxation, peace of mind or freedom from molestation, damages will be awarded if the fruit of the contract is not provided or if the contrary result is procured instead.

He made it clear that damages for inconvenience and anxiety would only arise in very exceptional cases. It appears that was the view of The Honourable Mrs Justice Andrews DBE when she allowed an appeal by a bereaved daughter who alleged that Leigh Day had not handled her father’s inquest correctly.

What were the facts of the case?

Following the death of Gabrielle Shaw’s father, Willian Ewan in 2007 after a surgical procedure to implant a trans-aortic valve, Gabrielle Shaw instructed Leigh Day to advise in relation to, and to represent her at, an inquest into her father's death .

The inquest was held over thirteen days in January 2011 and no adverse findings were made against the University Hospital of Leicester NHS Trust ("the NHS Trust") or against the consultant cardiologist who performed the operation, Dr Kovac. Mrs Shaw sought to challenge the verdict by bringing judicial review proceedings, and obtained permission, but Burnett J rejected the claim, and permission to appeal was refused by the Court of Appeal at an oral hearing on 11 February 2014.

It appears that comments made by Burnett J, to the effect that some of the issues raised by Mrs Shaw in the judicial review application could have been dealt by her legal representatives at the inquest, spurred Mrs Shaw to bring the professional negligence claim. Mrs Shaw alleged that Leigh Day had failed to procure sufficient documents and other evidence about clinical trials on the valve to enable leading counsel to put all relevant facts before the coroner. Leigh Day disputed the allegations and applied to strike out the claim and for summary judgment. Leigh Day’s application was made pursuant to CPR 3.4(2)(a) and/or CPR 24.2(a)(i). On 18 May 2015,District Judge Hovington struck out the claim but gave permission to appeal.

That appeal was heard by The Honourable Mrs Justice Andrews DBE on 6th April 2017 and after hearing submissions of both counsels for Mrs Shaw and Leigh Day, Mrs Justice Andrews DBE allowed the appeal based on the argument that damages could be awarded for distress and also on whether fees paid to Leigh Day were wasted expenditure, and finally whether the claim should be rejected because it was worth only nominal damages.

She said the decision to strike out the claim was based on ‘fundamental legal error’ and must be set aside. The matter was remitted to a district judge for a case management hearing at which further directions should be considered.

Commentary

While the case has been sent back to the County Court for further directions , it is interesting that the argument that damages could be awarded for distress was successful on the basis that it fell into the exceptional category identified by Bingham LJ. It seems that the fact that Leigh Day were instructed to act in a highly emotional matter, i.e the inquest of Mrs Shaw’s father played a part in the appellate court finding out of which the exceptional category argument was made. It would be interesting to see the final outcome of this case should it proceed to trial.

Author Anthony Okumah is a Director and Head of Civil Litigation and Professional Negligence at Duncan Lewis Solicitors. 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.

Duncan Lewis Professional Negligence Solicitors

Duncan Lewis Solicitors' professional negligence litigation team has a niche claimant practice acting for individuals against legal (solicitors, barristers) and construction (architects, surveyors) professionals. The team can help clients who have suffered as a result of professional negligence to recover financial compensation for losses incurred. For expert advice on professional negligence claims, please call Duncan Lewis on 033 3772 0409.