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Parker & Anor v SJ Berwin & Co & Anor [2008] EWHC 3017 (QB) (17 December 2008)


The Claimants sought to recover their wasted costs expenditure in their unsuccessful attempt to acquire Leicester City Football Club. The Claimants' case was that they had retained the Defendants on the basis of assurances from one of its partners that it would be able to obtain funding and provide the relevant legal services to achieve that goal. The complaint was that no effective steps had been made to progress the funding or bid and expenditure was wasted. The claim was not issued until the cusp of the limitation period and after its expiry the Claimants sought to amend their claim. While permission was granted in respect of certain amendments it was refused in respect of others. A claim for the difference in value between the notional sale price of the First Claimant's shares in the club that would have been achieved had he sold them after the failed bid and the price he would have achieved had he sold them at the time he retained the Defendants' was refused:- it had no real prospect of success. Another adviser might have offered its services; there was no actual loss because the shares had not been sold; and the nature of the loss (protecting the client from suffering a diminution in the market value of his shareholding) fell outside the scope of the duty of care owed. A claim for the costs of a subsequent bid advanced through another firm of solicitors on the premise that the club would not have accepted alternative funding had the Defendants acted more efficiently was not permitted. The decision to advance a second bid was made in full knowledge of the Defendants' failures and was an intervening cause or novus actus. Additionally it was far from clear whether the Defendants' delay was causative as there was subsequent delay in progressing the second bid. An averment that the there was a presumption that the Claimants could recover their wasted expenditure in full based on CCC Films (London) Ltd v Impact Quadrant Films Ltd thereby side-stepping the loss of a chance principles in Allied Maples Group plc v Simmons & Simmons was not permitted. The CCC Films principle did not apply to claims for breach of a duty of care in professional relationships and there was no unfairness in any event because of the availability of assessment under the Allied Maples approach.