The rise of professional negligence claims in PI

How will the courts approach professional negligence claims in the context of government schemes for compensation for personal injury? Robert D Godfrey, partner and head of professional negligence at Mellor Hargreaves Solicitors, comments on the increased number of professional negligence claims in the personal injury market.

Original news

Barnaby v Raleys Solicitors [2014] EWCA Civ 686

What were the key issues addressed in this case?

The original judgment of HHJ Gosnell in July 2013 was of significant importance as it was the first case of its kind to come to trial. Mr Barnaby is an ex coal miner who had claimed compensation under the government established compensation scheme set up in 1999 following the decision of Armstrong v British Coal Corporation (1996) Times, 6 December. His case was handled by Raleys solicitors who were the solicitors on behalf of the National Union of Miners and who represented over 12,000 of the 180,000 miners who claimed.

Mr Barnaby alleged he had been wrongly advised and, as a consequence, had suffered loss.

The trial judge found Raleys had been negligent in their handling on the facts of his case but in addition, expressed a general view that an individual needed to be appraised of all facts, including the potential value of the claim he was abandoning to be able to make an informed decision. Indeed, following the decision a number of other claims settled against Raleys and other firms.

Raleys were granted leave to appeal on limited grounds. However, as was stated by the Lord Justices of Appeal, it was effectively an appeal against findings of fact. Raleys attempted to widen the appeal to deal with specific legal principles but permission to amend was refused.

What did the court decide?

The Court of Appeal unanimously dismissed the appeal. It was extremely critical of the manner in which the defendants had cross-examined the claimant at trial stating ‘the attack on his honesty, which was sustained and unequivocal seems to have been misjudged. One has to keep in mind that his original claim was in relation to the scheme and was not one made in the course of conventional civil litigation’.

The attack on the claimant’s honesty was described as ‘a full frontal attack on Mr Barnaby’s credibility as a witness’. At an earlier hearing in January 2010, Raleys had represented to the court that of the 180,000 men who claimed compensation, the majority of them probably didn’t have the condition. Later in October 2010, they suggested to the court that it was the claimants who were pre-occupied with the idea of fraud.

In addition, the court made it clear (as the County Court has on six occasions now), that an attempt to discount or undermine the original medical evidence secured under the original claim was misconceived.

Did the judgment clarify the law in this area?

The basis on which permission to appeal was not such to clarify any aspect of the law. However, Raleys attempted to change their position at the appeal hearing, in particular it was suggested the judge had misapplied the approach in Dixon v Clement Jones Solicitors (a firm) [2004] EWCA Civ 1005, [2004] All ER (D) 127 (Jul) regarding loss of chance litigation, in that it is not a trial within a trial. The Court of Appeal took the view that the new point raised did not accrue to Raleys’ benefit having regard to the facts as found by the trial judge.

Much of the case law regarding loss of chance arises out of claims struck out for want of prosecution rather than claims under a government tariffed based compensation scheme, but there is no reason why the same principles should not apply.

Are there any recurring issues in cases relating to vibration white finger?

Each case for alleged professional negligence against solicitors is considered on its individual facts. The same applies to all the ongoing cases relating to the compensation scheme for vibration white finger. The courts have given clear guidance on the level of advice which should have been given to the claimants under the scheme in the second decision of Procter v Raleys Solicitors [2013] Lexis Citation 90, [2013] All ER (D) 161 (Nov). However, a recurring issue raised by the defendants is the reliability of the original diagnosis which, incidentally, they never had concerns with when conducting the original claim, and the honesty, integrity and credibility of each claimant. They have approached these claims on the basis that the claimants are dishonest pursuing fraudulent claims.

What should lawyers advising in this area take note of?

Anyone taking on these cases needs to be fully conversant with the original scheme and all the materials which came into existence as a result. It has not been uncommon for the defendants to submit to the court as fact, matters which are proven to be untrue or incorrect under the original scheme. These cases are hard fought with insurers investing thousands of pounds to defeat what are in reality modest cases. These case are long-haul and a number of firms who entered this arena initially have quickly exited. Unlike the original claims they are not ‘stack them high sell them cheap’.

Are there any trends emerging?

I think professional negligence claims against solicitors are now becoming more common, especially in the personal injury market—perhaps not surprising bearing in mind the cut backs and reductions in costs and firms effectively conducting litigation on the cheap. Cases being handled by those not sufficiently experienced can settle prematurely, perhaps without a medical report or before the expected recovery period has been reached or more commonly, as in this case, where specific heads of damage have been missed.

Robert D Godfrey is a partner and head of professional negligence at Mellor Hargreaves Solicitors

Interviewed by Nicola Laver. The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.

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