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And no, this is not the start of my story about my daughter refusing any sort of vegetable offered to her, despite all entreaties and cajoling. This is really to do with to do with the recent decision of the Court of Appeal in the case of Graham Thomas v Hugh James Ford Simey Solicitors [2017] EWCA Civ 1303.

Background

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. If a miner pursued a special damages claim, an interim payment of 80% would be made pending the determination of the special damages claim (or services claim as it was called).

In March 2000, the Claimant, Mr Thomas, instructed the Hugh James Ford Simey Solicitors (the Respondent) to pursue a VWF claim. He attended a medical examination and the report supported a claim for both general and special damages. An offer of general damages was made. The Claimant was assisted by Ms Kinsey who was employed by the Respondent and they met on two occasions. At the first meeting, the Claimant was advised about the way in which the scheme operated. He was then sent a standard form letter, which also explained how special damages can be claimed. On the second occasion, the Claimant informed Ms Kinsey that he did not want to pursue the special damages claim and accepted the offer of general damages. All well and good one would think?

Not exactly.

In or around 2008, the Claimant got wind of an advertisement run by Mellor Hargreaves Solicitors (the firm went into administration in July 2017). The advert essentially canvassed miners who had made claims under the scheme that there was a possibility that their solicitors had under settled their claims by not pursuing special damages claims when the evidence supported it.

Well, the Claimant, with assistance from Mellor Hargreaves brought a negligence claim against the Respondents and said that, had he been properly advised, he would have made a claim for special damages. The first instance judge duly dismissed the claim.

The Claimant appealed that decision on the following grounds that the solicitors were in breach of duty by:

1. Failing to provide an approximate valuation of the claim for services;


2. Failing to inform Mr Thomas about the availability of interim payments; and


3. Treating the ‘cash in hand’ concerns as putting an end to the special damages (services claim).

Unsurprisingly, the Claimant (this time the appellant) lost the appeal. The Court of Appeal held interalia that:

1. In a professional negligence claim it is incumbent on the Court to concentrate on the specific allegations of negligence, which constitutes actionable negligence.


2. On the facts, the Respondent was not under a duty to pursue a line of enquiry, which the client has shut down (hence the title of this piece… no I don’t want it). The solicitor had a duty to fulfil the original retainer even when the client had elected to close one avenue of enquiry.


3. The appellant was an intelligent and articulate person and it was not open to the Respondent to persuade him to pursue the special damages claim when he has specifically stated he does not want to do so.


4. It was necessary for the Court to adopt a realistic standard when assessing the performance of solicitors conducting litigation under a high volume, low cost commoditised scheme.

Conclusion

The Court of Appeal decision to dismiss the appeal, in my view, was the correct approach. Indeed, Lord Justice Jackson, who gave the lead judgment, added a postscript to express regret that the claim was ever brought in the first place. This makes it important for claimant professional negligence solicitors to assess a case properly before bringing it to court. This is what we do at Duncan Lewis.

Author Anthony Okumah is a Director and Head of the Duncan Lewis Civil Litigation and Dispute Resolution 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.

Duncan Lewis Solicitors

Duncan Lewis is one of the leading solicitors in England and Wales offering expert litigation and alternative dispute resolution services. Duncan Lewis has acknowledged expertise in advising corporate clients on litigation matters – as well as advising private individuals in cases where litigation might be an option. If you require further assistance on this subject or any other property related litigation matter, please contact our litigation team on 03337720409.