This week, the Supreme Court has given its judgment in a professional negligence claim against personal injury lawyers. We take a look at the facts of the case and the Court’s decision

Professional negligence claims against personal injury lawyers

Where a professional negligence matter relates to a personal injury claim, you must first show that the original (personal injury) action had reasonable prospects of success. Even if your personal injury solicitors were negligent in acting for you (for example, they missed limitation), there may not be a case to pursue if your underlying claim would have failed in any event. This is a very important aspect and one to bear in mind when considering bringing a professional negligence action.

Edwards on behalf of the estate of the late Thomas Arthur Watkins -v- Hugh James Ford Simey Solicitors [2019]

Mr Watkins instructed Hugh James Ford Simey Solicitors (“the Solicitors”) to act for him in a personal injury claim. He was claiming for damages in respect of vibration white finger (“VWF”) which he developed whilst employed by the National Coal Board. The Department for Trade and Industry set up a standardised, tariff-based compensation scheme (“the Scheme”) for former miners suffering from VWF. Mr Watkins instructed the Solicitors to make a claim to the Scheme on his behalf.

To merit an award from the Scheme, an applicant had to undergo an interview and preliminary medical examination. This would identify if the applicant suffered from VWF and the severity of the condition by reference to different stages. Above a certain level, a presumption arose that the applicant was entitled to a services award. This would cover the need for assistance in performing specified domestic tasks. A further medical examination would be required to determine to what extent the applicant was eligible for the services award.

Mr Watkins had the first examination. His VWF was categorised at a level that was sufficient for him to obtain the general award and also give rise to the assumption that he would be entitled to the services award. Mr Watkins settled his claim under the Scheme for £9,478. The award was in full and final settlement and did not include an allowance for any services award.

Professional negligence claim

Mr Watkins brought a professional negligence claim against the Solicitors, alleging that they had settled his VWF claim at an undervalue. Mr Watkins claimed he had lost the opportunity to claim a services award from the Scheme because of the negligence. This was valued at £6,126.22 plus interest.

Single joint expert

The parties agreed to instruct a single joint expert to examine Mr Watkins. This was to assess whether Mr Watkins’ failure to obtain an additional services award was as the result of negligent advice or his own inability to assert truthfully his entitlement to the services award.

The expert concluded that Mr Watkins’ true VWF staging was actually much lower than what had been reported in his initial exam, and that Mr Watkins had been overcompensated. The appropriate general award for his condition was around £1,790 rather than the £9,478 which he had received.

County Court – 2016

The trial judge concluded that Mr Watkins had suffered no loss. This was because the single joint expert’s medical evidence showed that his true entitlement was less than the amount he received in settlement. Therefore, any additional claim for a services award would have had no chance of success.

Court of Appeal – 2018

Mr Watkins appealed this decision to the Court of Appeal. The Court of Appeal disagreed with the County Court decision. It stated that in a successful professional negligence claim, a claimant is entitled to be put back in the position they would have been in had the negligence not occurred. Here, the measure of loss would be what Mr Watkins would have received in compensation absent the negligence. The Court of Appeal ordered that the case go back to the County Court for a re-hearing.

Supreme Court – 2019

In the meantime, the Solicitors appealed to the Supreme Court on the question of whether the prospects of success of the personal injury claim were to be decided as at the date when the claim was lost, or at the date when damages are awarded.

The Supreme Court decided on the facts of the case, that the after-acquired evidence was not relevant to the issue of loss. Further, that the professional negligence action had to be decided within the context of the Scheme.

The reasoning behind this was that if Mr Watkins had pursued a services award under the Scheme, he would have been required to have an additional examination to determine the amount he would have been entitled to as a services award. The Scheme would not have required a re-assessment of the VWF staging. Therefore, the Scheme did not provide for an equivalent to the after-acquired evidence. The payment of a services award would have been a consequence of the way that the Scheme was intended to operate; rather than based on a medical report that would not have been commissioned under the Scheme in any event.

The Supreme Court did emphasise that their decision was explicitly confined to the circumstances of the case. This case should be of re-assurance to any potential Claimants that their claims will be decided on the evidence that was available at the time of the negligence, and not the after-acquired evidence available in the professional negligence action.

Levi Solicitors LLP’s professional negligence team are specialists in claims against personal injury lawyers and solicitors. If you think you may have a claim, contact our team today on 0800 988 7756.