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John Greenbourne represents successful Claimant in the Court of Appeal in VWF Professional Negligence case

Perry v Raleys Solicitors [2017] EWCA Civ 314

Court of Appeal overturns judgment which dismissed a retired miner’s claim against his former solicitors.

In a judgment handed down on 28th April 2017, the Court of Appeal allowed the claimant’s appeal against the trial judge’s dismissal of his claim against Raleys for having failed to advise him properly in relation to the possibility of bringing a services claim under the Government scheme devised to compensate miners who had developed Vibration White Finger as a result of using vibratory tools. A services claim was a claim that the man could no longer without assistance carry out one or more of 6 types of household tasks which he had previously done himself (gardening, window cleaning, DIY, decorating, car washing and car maintenance). Raleys held themselves out to be specialists in industrial disease claims and were experienced in handling both claims for miners generally and claims under this particular scheme.

This was the third case in which the Court of Appeal heard an appeal against a decision as to whether Raleys were or were not liable to a client for failing to advise properly in relation to a services claim under the scheme. The first two were Raleys Solicitors v Barnaby [2014] EWCA Civ 686 and Procter v Raleys Solicitors [2015] EWCA Civ 400; [2015] PNLR. 24 (see News & Events – Articles May 2014 and April 2015).

Mr Perry had settled his claim under the scheme in 1999 by accepting an offer from the DTI which covered only general damages. He claimed that as a result of Raleys’ negligence he had lost the chance of making a successful claim for services. It was agreed that such a claim, if successful, would have been settled and paid on 1 December 2006. The action against Raleys was begun in 2009. Two days before the trial in 2015 Raleys admitted breach of duty in negligently failing to advise the appellant about the potential for a services claim but they continued to deny causation, alleging that the appellant was dishonest in claiming that he had been unable to carry out the relevant tasks without assistance.

Mr Perry appealed against the judge’s finding that Raleys’ negligence had not caused him to settle his claim at an undervalue. The judge concluded that the appellant had not established that he “honestly” met the “factual matrix” for making a claim for services because, having heard evidence, the judge did not accept that the appellant could not perform unaided the tasks which (it was not disputed) he did carry out unaided before the onset of VWF. The judge went on to hold that, had the appellant satisfied him on the issue of causation, namely that the “factual matrix applied and that he would have acted differently if he had received competent advice”, he would have held that the appellant should receive 80% of the value of the services claim he would have brought, to reflect his prospects of success.

The Court of Appeal held that the judge was wrong to conduct a “trial within a trial” on the issue of causation. In reality the judge carried out a determination on the balance of probabilities as to whether the appellant would have succeeded in his services claim against the DTI. Previous CA judgments such as Hanif v Middleweeks and Dixon v Clement Jones established that that approach was wrong in principle.

The Court also ruled that this was one of those very rare cases where the appellate court should interfere with the judge’s findings of fact, since he could not rationally have reached the conclusion that the claimant and his wife and two sons had all given false evidence.

The appellant was awarded interest at the judgment debt rate of (8%) because he had been kept out of his compensation for so long and “because the conduct of Raleys (or their insurers), in their long drawn-out defence of this claim, deserves appropriate sanction.” That almost doubled the value of the underlying award. In addition, having failed to beat the appellant’s Part 36 offer, the respondents were ordered to pay under CPR 36.17(4) an additional 10% of the claimant’s damages and, from 21 days after the date of the offer, indemnity costs and interest at 10% above base rate on those costs and the basic award of damages.

John Greenbourne appeared for the successful appellant, led by Jonathan Watt-Pringle KC.

Ben Quiney KC appeared for Raleys.

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