The Supreme Court holds that "subsequently acquired evidence" is to be disregarded in assessing loss of chance in a DTI compensation scheme
On 20 November 2019 the Supreme Court handed down its second 2019 judgment on loss of chance principles in Edwards v Hugh James Ford Simey Solicitors  UKSC 54.
It held in favour of the claimant rejecting the lawyers' argument that the issue of loss should be determined based on all of the facts available at the date of the professional negligence proceedings.
The defendant lawyers acted for the claimant in his claim for compensation for vibration white finger under a government scheme. Under the scheme claimants could seek general damages for pain and suffering, and a services award for lost or reduced ability to perform specific household tasks. Instead of assessing each claimant's ability to carry out such tasks, the scheme applied a presumption based on the condition reaching a certain level of severity.
Medical evidence obtained in 2000 indicated that the claimant engaged the presumption that he satisfied the requirements for a services award. The claimant accepted a settlement of £9,478 for general damages in 2003 following advice from the lawyers. No recovery was made for a services award. In 2008 the claimant alleged that he had lost the opportunity pursue a services award under the scheme as a result of the lawyer's advice.
In 2013 the parties instructed a joint expert to consider whether the claimant suffered from vibration white finger and was unable to perform specific household tasks under the scheme. The expert was instructed not to apply the presumption which would have applied under the scheme. He concluded that although the claimant did suffer from the condition, it did not affect his ability to perform the specific tasks and so would not have been sufficient to obtain a services award.
The lawyers were found to have breached their duty, but argued that they had not caused the claimant any loss as he had already received more compensation than he was entitled to. They argued that they were entitled to rely on the medical evidence from 2013 to show that the claimant would not have been entitled to a services award.
First Instance and Court of Appeal Judgments
The claimant lost his claim before the judge at first instance. The judge held that the claimant would have pursued an honest services claim had he received appropriate advice, but that the claimant had suffered no loss. Based on the full facts, including the expert evidence from 2013, the judge concluded that the claimant's claim for the services award had no chance of success.
The Court of Appeal allowed the claimant's appeal. They held that the judge was wrong to determine the claim based on the expert evidence from 2013 because that evidence would not have been available at the time of the claimant's original claim for a services award under the scheme.
The Supreme Court agreed with the Court of Appeal and remitted the case for assessment of the value of the claimant's lost opportunity. The judgment was given by Lord Lloyd-Jones (with all four other members agreeing).
He first set out the basic principle that for the claimant's negligence claim to succeed he must first prove that he had lost something of value. In other words, he had to establish that his claim had a real and substantial rather than merely a negligible prospect of success. He held that it was important not to lose sight of the fact that the original claim was a claim within the scheme and not a conventional civil claim at common law. The claim's value must therefore be assessed within the context of the scheme.
He went on to agree with the Court of Appeal's description of the scheme as a 'rough and ready' scheme. Under the scheme, instead of requiring individual medical assessment of the claimants' disabilities, claims for services awards were dealt with by reference to presumptions established from an initial medical assessment. The scheme only required a limited medical examination when assessing a claim for services, and did not contemplate reassessment of the diagnosis at that stage. He said that the claimant "lost the value of his claim under the Scheme as it would have been administered in accordance with its terms" (paragraph 26).
Lord Lloyd-Jones held that the expert report from 2013 may have been relevant to the issue of causation, and whether the failure to pursue a services award was caused by the lawyer's negligent advice or an inability to truthfully assert that he was unable to perform specific household tasks as a result of his disability. However, that issue was not appealed and the report was not relevant to the issue of loss. When assessing the issue of loss it must be assumed that the scheme would have operated in accordance with its provisions. He went on to say that in such circumstances there would have been no equivalent to the 2013 expert report and no reassessment of the claimant's diagnosis. He went on to say (at paragraph 29):
"The appellant now seeks to add to the counterfactual situation the effect of a further medical examination and report which would never have been commissioned. There is no justification for such a modification of the counterfactual situation and the judge erred in taking it into account when concluding that the lost claim was of no value".
He noted that the 2013 expert report provided an insight into the value of the claim which the claimant lost, as it provided an opinion which would have been similar to the limited medical assessment which would have been required had the claimant pursued a services award at the time. Against that background, he was unable to accept that the services claim had no chance of success and that the claim lost was of no value.
Lord Lloyd-Jones noted that much of the argument before the court focussed on the admissibility of subsequently acquired evidence relating to the value of the original claim. However, he held (at paragraph 31) that as the claim concerned a "scheme possessing unusual features" the evidence in question was "simply not relevant when constructing the counterfactual situation which would have arisen" but for the lawyers' breach of duty.
The Supreme Court made clear that the value of a lost claim must be assessed against the context in which the original claim would have been brought. Here the court was dealing with a claim brought within a particular scheme and not in general civil litigation. Accordingly, it is unlikely that the decision will be determinative of the same issue in general litigation.
Equally, the Court of Appeal identified the well known exceptions to the principle in all cases where there was fraud, or where the consequences of a supervening event were of such a significant or serious scale that public policy required it in order to achieve a just outcome for the parties.