Raleys admitted that they had negligently failed to advise Mr Frank Perry, a retired miner with vibration white finger, to claim a services award for help with domestic tasks. The Supreme Court held that he still had to prove, on the balance of probabilities, that competent advice would have led him to make an honest claim, and that the trial judge was entitled to find he could not honestly have made one. The Court of Appeal was wrong to treat that inquiry as an impermissible trial of the lost claim and to replace the judge’s view of the evidence.
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The compensation scheme
Mr Perry stopped working underground in 1994 with vibration white finger, a form of hand-arm vibration syndrome caused by excessive use of vibratory tools. It can reduce grip and dexterity, so sufferers may need help with ordinary jobs. Test cases had established British Coal’s negligence in failing to limit exposure. In 1999 the Department of Trade and Industry, which had assumed the relevant liabilities, created a tariff-based scheme so that very large numbers of similar claims could be resolved effectively and at proportionate cost.
The scheme provided general damages, assessed from the medical severity of the condition, and a services award closer to special damages. For a services award the miner had to establish the factual matrix: before developing the condition he had done one or more of six tasks without help; he could no longer do them without help because of vibration white finger; and he had actually received that help. The tasks were gardening, window cleaning, DIY, decorating, car washing and car maintenance.
A sufficiently serious medical assessment raised a presumption in the miner’s favour. It did not remove the need for him to state which tasks he could no longer carry out without assistance.
Mr Perry’s claim against Raleys
Mr Perry instructed Raleys and received general damages under the scheme. He did not claim a services award.
In February 2009 he sued Raleys, saying that negligent advice had lost him the chance of a services award for all six tasks, quantified at £17,300.17 plus interest. He said he had previously done the tasks unaided and that his wife and two sons had later helped him. Raleys denied breach, causation and that the claim was in time. Breach was admitted shortly before trial, and Judge Saffman rejected the limitation defence.
After hearing Mr Perry, his wife and his sons, the judge dismissed the claim with costs. He found that vibration white finger had not caused any significant inability to perform the six tasks unaided, so Mr Perry could not have made an honest services claim. Mr Perry’s evidence lacked credibility: his records showed no relevant complaint of lost dexterity; photographs and other evidence showed him fishing when he said he had given it up; and he offered no credible explanation. His family’s evidence did not cure the problem, and the supportive medical evidence did not tip the balance.
The Court of Appeal
The Court of Appeal reversed the causation decision and used the conditional assessment to award £14,556.15 plus interest and further sums under CPR Part 36, without a retrial. It held that the judge had wrongly conducted a trial within a trial and had wrongly required Mr Perry to prove the underlying facts on the balance of probabilities. It also held that he had failed to deal properly with the evidence and that his conclusion could not reasonably be justified.
Honest claims and lost chances
Lord Briggs, with whom Lady Hale, Lord Wilson, Lord Hodge and Lord Lloyd-Jones agreed, said that professional negligence often requires the court to consider what would have happened if proper advice had been given. A lost chance may be valued where an all-or-nothing result would be absurd or unfair. But the claimant must still prove that the breach caused loss.
The dividing line, established in Allied Maples and approved in Gregg v Scott, is between the client and other people. Where the advantage depends on what the client would have done after receiving competent advice, the client must prove that action on the balance of probabilities. Where it depends on what others would have done, the court values the lost chance. The line applies both to negotiations and to lost claims. Proof of the client’s own step is all or nothing, so both sides may have that issue fully tried, including facts that would also have arisen in the lost claim.
Mr Perry therefore had to prove that proper advice would have led him to claim a services award in time. His then counsel conceded that the claim had to be honest, and Lord Briggs refused to let that concession be withdrawn. Kitchen had already excluded recovery for the mere nuisance value of a worthless claim; a dishonest claim was even further outside the claims for which a negligent adviser could be liable. A solicitor would not advise an honest client to sue on facts that did not support a claim, and the court will not reward dishonesty.
An honest services claim required Mr Perry to believe that he had previously done at least some tasks unaided, later needed help, and needed it because vibration white finger had affected his grip or dexterity. Those matters, apart from the medical cause, were within his own knowledge. They were facts about his condition, not hypothetical decisions by others, so it was fair to test them.
The judge’s reasoning and the evidence
Judge Saffman was therefore entitled to try whether Mr Perry would and could have brought an honest claim. One passage, read alone, might suggest that he also required proof that the claim would have succeeded. Read as a whole, the judgment required an honest claim with more than a negligible prospect of success. Under the scheme’s light-touch process, a qualifying miner would probably receive an offer after a questionnaire, a short interview with a helper and a co-morbidity examination. The judge could be assumed to understand that, and his reference to a successful claim did not impose a further burden.
The Court of Appeal also could not remake the facts. An appeal court may intervene only where there is no supporting evidence or no reasonable judge could have made the finding. The burden of proving an honest claim was Mr Perry’s. The challenge still had to be made clear, given his relatively unsophisticated background, but the judge was satisfied that it had been. Detailed cross-examination about his medical history and later fishing and gardening gave him a proper basis for that view.
The medical evidence concerned the condition and its likely effects. It did not establish which activities Mr Perry personally needed help with. The judge had heard him and the family members said to have helped him and was entitled to weigh their evidence.
Verdict: The Supreme Court unanimously allowed Raleys’ appeal and restored the trial judge’s dismissal of the claim. The solicitors had admitted negligence, but Mr Perry had not proved it cost him the chance to make an honest services claim.
