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VWF Professional Negligence appeal dismissed

Raleys Solicitors v Barnaby [2014] EWCA Civ 686

In a judgment handed down today, the Court of Appeal (Maurice Kay, Davis and Floyd LLJ) dismissed the appeal brought by Raleys Solicitors against the trial judge’s finding that the claimant, Mr Barnaby, had abandoned a services claim (under the Government scheme devised to compensate miners who had developed Vibration White Finger as a result of using vibratory tools) as a result of their negligent advice.

Raleys had obtained permission to appeal against the trial judge’s finding on causation, which was essentially a finding of fact. At the hearing, Raleys sought to widen the scope of the appeal to argue that the trial judge had erred in law by applying the approach described by Rix LJ in Dixon v Clement Jones Solicitors [2004] EWCA Civ 1005 (at paragraph 27) in the following terms:

“There is no requirement in such a loss of a chance case to fight out a trial within a trial, indeed the authorities show as a whole that that is what should be avoided. It is the prospects and not the hypothetical decision in the lost trial that has to be investigated. The test is not to find out what the original decision of the underlying litigation would have been as if that litigation had been fought out, but to assess what prospects were.”

Raleys argued that this approach applied only to cases in which the original action had been struck out for want of prosecution (where, by definition, it is no longer possible for there to be a fair trial of the original cause of action against the original tortfeasor).

The Court of Appeal did not allow Raleys to widen the scope of the appeal. Whilst Maurice Kay LJ considered that Raleys might have been correct in their submission that the “no trial within a trial” approach was more relevant to cases where the claimant’s original cause of action has been struck out as a result of the negligence of his previous solicitors, the point was of no assistance to Raleys in the instant case. The attempt by Raleys to undermine the MAP1 medical examination upon which the underlying action had been based was described as “misconceived”.

Ultimately, two factors led the Court of Appeal to conclude that the trial judge’s findings on causation were unassailable:

  1. On a common sense approach, there was no reason (other than the negligent advice) for Mr Barnaby to abandon his services claim.
  2. The alternative explanation, namely that Mr Barnaby gave up his services claim because he had come to realise that it was based on exaggeration at least verging on dishonesty, was inherently implausible as it would have involved an unsophisticated claimant abandoning a claim by reason of a sudden outburst of honesty but seeking to revive it by other means at a later date through a dishonest claim against his solicitors.

Crispin Winser appeared for the successful Respondent, led by Jonathan Watt-Pringle KC.

The judgment is available here.

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