Description
An action for damages for loss of chance against a firm of solicitors on the grounds of breach of contract and professional negligence. The firm failed to advise the pursuer that its entitlement to claim pre-award interest or damages in an arbitration had expired, which, the pursuer claimed, resulted in a smaller sum in settlement. The firm admitted breach of contract but contested the pursuer's valuation of the lost chance. The issues were i) causation and ii) qualification of loss.
Held: i) There is a distinction between a loss of chance claim which requires valuation of the loss of an established right and a claim which requires causation to determine the loss of a benefit. The latter requires the claimant to prove, on a balance of probabilities, that negligence caused the loss of benefit (
Hotson v East Berkshire Area Health Authority [1988] UKHL 1;
Gregg v Scott [2005] UKHL 2). Where the alleged lost benefit depends on the hypothetical action of a third party, the claimant must show that there was a real or substantial chance that the third party could have conferred the benefit (
Allied Maples Group Ltd v Simmons & Simmons [1995] 1 WLR 1602). The present case was in the latter category, concerning negligent failure to advise where the client was deprived of information which they may have used to their economic benefit, rather than the former, which requires loss of an item of property; ii) Once the requirements of causation have been satisfied, the assessment of damages may involve the evaluation of a chance (
Mallett v McMonagle [1970] AC 168;
Paul v Ogilvy 2002 SLT 171). As the claim was complex and based on a long-lasting arbitration, it was only possible to assess the value of the principal sum, and therefore pre-award interest, by taking a broad approach with reference to the behaviour of the parties.
