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Loss of a Chance claims – not a cheats’ charter

The Supreme Court has delivered the much-anticipated decision in Perry v Raleys Solicitors, the latest miners’ compensation scheme professional negligence case to get to the higher courts. The Court of Appeal decision has been reversed, and the trial judge’s conclusion restored.

 

The Claimant was a former miner represented by Raleys, a solicitors’ firm which acted for many such people under a government-endorsed, tariff-based compensation scheme for those who had developed Vibration White Finger (VWF) as a result of their work. Raleys made a mistake in not giving him advice about the possibility of submitting a claim for a higher tariff (for the impact on “services” which he was left unable to carry out in his domestic life), so his claim was awarded for general damages only under the scheme.

 

Raleys admitted the breach of duty, but the trial judge held that the claim for a loss of a chance to secure a “services” award failed because the Claimant had not in fact suffered the necessary impact on his ability to carry out the domestic “services” or tasks. Accordingly, the lost chance was a chance to pursue a claim which would have failed or else would have been dishonest in securing compensation for a loss which had not been suffered.

 

The Court of Appeal had decided last year that the trial judge had been wrong to carry out a “trial within a trial” in that way, and that the CA was able to substitute its own factual conclusions on the lost chance issue.

 

The Supreme Court unanimously decided that it was right to require the Claimant to prove at trial that he would have had a significant chance of securing the higher tariff if and only if he had successfully pursued an honest claim for the “services” award. The trial judge’s factual findings – that the Claimant did not prove this – were today restored. The professional negligence claim therefore failed.

 

The Supreme Court also gave guidance on the limited role of the appellate courts in interfering with factual findings made at first instance, particularly by an experienced judge.

 

Perry v Raleys Solicitors [2019] UKSC 5

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