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valuing a claim following professional negligence

27 June 2018

Mrs Jean Edwards v Hugh James Ford Simey (a Firm) (2018 EWCA) is an interesting case involving solicitor’s negligence in the bringing of a disease claim under a vibration white finger (VWF) scheme against the Department of Trade and Industry (DTI) by the estate of a former miner.

The solicitors were found to have negligently failed to advise the claimant that he could bring a services claim under the scheme to include matters such as an inability to do DIY, gardening etc.

Although the initial medical report obtained under the scheme supported the claim, a subsequent joint medical report obtained during the professional negligence action suggested that the information provided by the claimant to the medical expert in support the original action was untrue and did not support the level of disability necessary to bring a services claim.

Those who have suffered losses from professional negligence are entitled, so far as possible, to be brought back into same position had the negligence not occurred.

The issue in this action was whether the court was entitled to take account of the later medical evidence relied upon by the solicitors, which would mean that no loss had been sustained.

The court held that, save in exceptional cases such as in fraud, the court should approach the strength of the case at the time the matter proceeded to settlement or trial. The second medical report would not have been available at the notional date of settlement.

The decision of the Recorder was quashed and the case remitted for rehearing.

Comment

For an insurer this case is really a postscript as to what is likely to happen where a claim is struck out or fails at trial due to failings on the part of the claimant solicitors. Where negligence is established such claims will be calculated on a percentage of the likely prospects of success against quantum.

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