The Court of Appeal has given judgment in a case arising out of a firm of solicitors’ alleged professional negligence. The question before the court was whether solicitors acting in high-volume, low-value fixed costs personal injury cases were under a duty to advise about heads of loss that a claimant has said he does not want to pursue. Lord Justices Jackson and Henderson rejected this argument, and effectively confirmed that lawyers are not expected to be salesmen, but solicitors.
The Claimant worked as a coal miner from 1974 to 1991. Due to the nature of the role, many coal miners develop Vibration White Finger (‘VWF’). Miners who have suffered such an injury are entitled to claim damages against their employers for a breach of statutory duty and/or negligence.
To facilitate the management of the numerous claims for VWF, in 1999 the Department of Trade and Industry set up the Claim Handling Arrangement ‘the Scheme’. This Scheme enabled the high-volume, low-value claims to be dealt with expeditiously, and at low cost.
In March 2000, the Claimant instructed the Defendants to bring a claim of his own as a result of the alleged VWF injury that he had suffered during his employment. The Claimant had a 42-minute meeting in person with an employee of the Defendants. The Scheme was explained to the Claimant, and he submitted to a medical examination. As a result of this examination, it was established that the Claimant’s injuries entitled him to a claim in general and special damages in respect of any assistance that he had received for DIY, decorating, gardening and car maintenance.
In January 2001, the Department of Trade and Industry’s claim handlers offered the Claimant approximately £10,000 in respect of his PSLA. Shortly after this offer, the Defendants wrote to the Claimant and informed him that the sum quoted did not include any figure for special damages. This letter specifically stated that compensation awards for special damages in cases such as his can be significant.
The Claimant attended a further meeting with the Defendants to discuss the offer. During this meeting, the matter of special damages was addressed. The Claimant informed the Defendants that, although friends had helped with decorating, they had been paid cash in hand and so would not be willing to provide evidence of the service they had provided. Accordingly, the Claimant told the Defendants that he was “not bothered” about pursuing a claim for special damages.
In February 2001 the Claimant duly received his cheque for approximately £10,000, and the matter lay dormant for several years. However, in 2008 the Claimant came across an advert from a separate firm of solicitors, Mellor Hargreaves, which stated that “thousands of ex miners have had these VWF claims settled for much less than they should have received.” The Claimant then brought a claim against the Defendants, alleging that they handled his previous claim negligently.
The Claimant’s case was that, were he advised properly, he would have made a claim in 2000 in respect of the decorating, DIY and gardening. His pleaded case was valued at over £16,000 plus interest.
The matter was dealt with at first instance by Mr Recorder Cameron in the County Court at Leeds in January 2016. Several findings of fact were made, the most relevant of which were as follows:
- The claimant was an intelligent and articulate man.
- The claimant told the Defendants that two individuals had helped with decorating. But, he said, they would be reluctant to give supporting evidence, because they had received “cash in hand” payments for their work.
- The Defendants did not provide a valuation of the claimant’s possible services claim. Nor did they inform the claimant of the availability of interim payments for people pursuing services claims.
- The failure to provide a valuation was not a breach of duty. The Defendant’s letter, which stated that the value of services claims “can be significant”, was sufficient.
- The Defendant’s attendance note records that special damages were discussed with the Claimant, and that after some discussion, it was concluded that the requisite evidence would not be available. The claim for that head of loss, therefore, could not proceed.
The judge held that the Defendants’ failure to consider aspects of the claim which could not proceed due to lack of evidence did not constitute a breach of duty. In disagreement with the decision of Mr Recorder Cameron, the Claimant brought his case to the Court of Appeal.
The Claimant argued that the judge erred in finding that there was no breach of duty. Rather, the Claimant alleged that the Defendants’ breach was threefold:
- The Defendants failed to provide an approximate valuation of the claim for services;
- The Defendants failed to inform the Claimant of the availability of an interim payment in the event that the claimant pursued a services claim; and
- The Defendant treated what the Claimant said about ‘cash in hand’ payments in his January 2001 meeting as putting an end to the services claim.
The Claimant brought a further, ancillary appeal in relation to quantum, but that claim was contingent on the success substantive grounds of appeal.
The key issue in the appeal was the nature and extent of a client’s autonomy. It was accepted by the Claimant that he had been advised about special damages both in writing and in person, that he had been told that the potential claim in special damages could have been significant, that he had informed the Defendants that he would not be able to gather the necessary evidence to support a services claim, and that he told the Defendants that he was not bothered about pursuing the matter further. However, it was the Claimant’s position that the Defendants should have gone further than just accept the Claimant’s instructions. It was submitted that the Defendants should have probed matters further in order to try and change the Claimant’s mind. Lord Justice Jackson rejected this argument. At 39, he held that:
“The client was, as the judge found, an intelligent and articulate man. He knew his own mind. He decided not to pursue a claim for special damages and he so instructed his solicitors.”
The appeal was dismissed. If a client chooses to shut the door to a head of loss, there is no incumbent duty on the part of a solicitor to try and prise it open again.
Points of interest
The judgment of the Court of Appeal will no doubt be welcomed by claimant solicitors for two reasons.
Firstly, the investigative burden expected of lawyers has been kept to a reasonable minimum. Solicitors are not under a duty to turn over every stone and pursue every possible head of claim in response to clear instructions to the contrary. Whilst these cases will turn on the facts, the present Claimant was an intelligent man who voluntarily, and with some justification, elected not to pursue a claim for special damages. The autonomy of a client with full capacity should be respected, it is not the role of lawyers to tempt clients with large sums in the face of non-existent evidence.
Secondly, the fact that this claim was one of a multitude of similar cases progressing via a specific scheme, created to deal with high-volume and low-value cases, was relevant. Whilst solicitors must still be expected to exercise reasonable care and skill when handling such claims, they should not be criticised for failing to go the extra mile. No criticism could be levelled at the Defendants’ treatment of the Claimant. In contrast to previous claims, (see Procter v Raleys Solicitors (2015) EWCA Civ 400), the Defendants met with the Claimant in person, and discussed in reasonable depth the issue of special damages. The Defendants acted reasonably considering the nature of the claim and the costs involved.