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Perry v Raleys Solicitors – Permission to appeal to the Supreme Court is granted

On 6 November 2017, the Supreme Court (Lady Hale, Lord Reed and Lady Black) granted Raleys Solicitors permission to appeal the order made by the Court of Appeal on 28 April 2017 ([2017] EWCA Civ 314; [2017] P.N.L.R. 27).

The claim is typical of a number of professional negligence claims being brought against the Appellant for its conduct of personal injury actions they were assisting miners with who suffered from Vibration White Finger (VWF), a form of Hand Arm Vibration Syndrome (HAVS) resulting from excessive use of vibratory tools. In July 1998, the Court of Appeal upheld a High Court decision finding British Coal negligent in exposing miners to such excessive vibration. The Department for Trade and Industry (having assumed British Coal’s occupational health liabilities in 1999) set up a compensation scheme to provide tariff-based compensation to miners who had been exposed to vibration and who suffered from VWF (“the Scheme”). This resulted in a Claims Handling Agreement (“CHA”) being set up on 22 January 1999 which set out a protocol for dealing with claims for personal injury, loss of amenity and other damages arising of the contraction of VWF and other industrial diseases. On 9 May 2000, the Services Agreement was entered into to deal specifically with claims for compensation for an inability to perform without assistance, various specified everyday tasks known as Services. Provided certain conditions were satisfied, the claimant became entitled to a Services Award in accordance with an agreed tariff.

The Respondent was born on 8 October 1950 and left school to become a miner in 1966, as an employee first of the National Coal Board, and then of its successor, the British Coal Corporation. As a result of using vibratory tools he developed VWF. He continued to work in the industry until he took redundancy in 1994. In 1996 he instructed the Appellant to pursue a claim on his behalf for damages as a result of developing this condition. Initially, the claim commenced as a normal personal injury claim. After the CHA came into force, his claim continued under the Scheme. A medical report was obtained which concluded that the Respondent suffered from VWF. On 5 November 1999, the DTI made an offer to settle his claim for £11,600. This sum was for general damages; there was no compensation for any inability to carry out services. On 25 November 1999, the Respondent agreed to settle his claim for VWF by accepting the offer of £11,600. If he had proceeded with a claim for a services award, the medical expert’s findings would have resulted in an assumption being made that he could not perform relevant tasks without assistance, although this could have been challenged by the DTI. On 3 February 2009, the Respondent issued proceedings against the Appellant, claiming that he suffered from a loss of opportunity to claim a Services Award quantified in the sum of £17,300.17 plus interest.

The matter came to trial in March 2015. Shortly before trial, the Appellant accepted that it negligently failed to advise the Respondent as to the potential for such a claim. The Appellant denied that the Respondent suffered the disability he alleged and would/could have made a claim for Services, had he been advised to do so. The claim was heard by HHJ Saffman in the Leeds County Court on 30-31 March 2015. The primary issue was whether the breach caused the claimant to settle his claim at an undervalue because, on balance, if properly advised and on the assumption that he was acting honestly he would have acted differently and made a claim for a Services Award. The Judge dismissed the claim. He was not persuaded that the Respondent could not carry out the relevant tasks unassisted and had done so before the onset of VWF as much of his evidence was found to be at variance with much of the written and extraneous evidence and his explanations were not impressive. The Judge held that had he found in favour of the Respondent on the issue of causation he would have assessed his loss of a chance as 80% of the value of his net claim.

The Respondent appealed to the Court of Appeal [2017] EWCA Civ 314 (28 April 2017) on the basis that the Judge erred in: (i) applying the wrong approach to causation and had conducted a trial within a trial; (ii) failing to attach sufficient weight to the high grading of Mr Perry’s VWF by the medical experts; (iii) failing to apply the principle that a claimant did not have to be entirely disabled; and (iv)-(x) in concluding that the Respondent did not honestly meet the factual matrix assessed against the body of evidence.

The Court of Appeal allowed the appeal on the basis that this was a rare instance where an appellate court should interfere with the factual findings of the trial judge because the judge erred (i) in law in his approach to the determination of the causation question as he had conducted a trial in a trial; (ii) in assuming the burden of proof was on Mr Perry; (iii) failing to consider the relevant evidence; and (iv) in deciding that Mr Perry could not have honestly claimed in 1999 and thereafter that he was unable to perform the relevant tasks without assistance and this decision could not reasonably be explained or justified.

The Appellant appealed to the Supreme Court on two grounds:

  1. The Court of Appeal erred in their approach to the issue of causation. The Supreme Court has been invited to consider this issue with reference to the Allied Maples line of authority;
  2. The Court of Appeal acted outside the limits of its jurisdiction and improperly substituted their own findings for those of the Judge.

Permission has been granted by the Supreme Court on both grounds.

Ben Quiney KC and James Sharpe are instructed on behalf of the Appellant (instructed by BLM).

John Greenbourne is instructed on behalf of the Respondent (instructed by Mellor Hargreaves).

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