The coalface of professional negligence

The Court of Appeal in Raleys v Barnaby [2014] EWCA Civ 686 dismissed an appeal brought by Raleys Solicitors against the trial judge’s finding that the claimant had abandoned a claim for services, which
they had encouraged him
to pursue, as a result of
their negligent advice.

Barnaby is one of many claimants bringing claims against their previous
solicitors who they allege negligently advised them regarding the compensation they were entitled to receive under a government-run compensation scheme for coal miners who had developed vibration white finger.

The defendants, having
lost at first instance, appealed and were granted permission on a limited basis dealing
with causation.

However, at the Court of Appeal they attempted to widen the scope of the appeal to include the legal principles relating to loss of chance claims, in particular the approach taken in Dixon v Clement Jones Solicitors [2004] EWCA Civ 1005.

They suggested that the principle of “no trial within a trial” only applied to claims arising out of cases that had been struck out for want of prosecution. Although denying Raleys permission to amend its grounds of appeal, the court nevertheless commented that the point was of no assistance to them in this case.

In dismissing the appeal the court said: “This is a completely unsustainable appeal against factual findings. The point of law which Mr Pooles contends does not avail Raleys in view of factual findings which are unassailable.”

However, any reading of the judgment identifies criticism of Raleys and its attempts to undermine the claimant’s integrity. As stated by Maurice Kay: “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.”

In addition, scorn was poured on the defendant’s attempt to undermine the original medical evidence: “In any event, it seems to me that the attempt to discount or undermine the MAP1 examination is misconceived”.

In this and other cases, Raleys, who represented 12,000 miners, had been intent on disputing the original diagnosis in the medical evidence it obtained.

As it stated by at an earlier CMC before DJ Ackroyd in January 2010: “What you have to appreciate is that of 180,000 claims that have been settled under this scheme probably
a huge amount of these
men have not actually
got this condition”.

The closing submissions at the trial included: “Even men who did not have the condition could get through the MAP1.” This has been a recurring theme of Raleys and has been rejected on five occasions so far by the trial judge and now the
Court of Appeal.

On reading the original file
of papers from Raleys, I see no hint of concern regarding the medical evidence and the diagnosis reached.

The Court of Appeal ruled that the judge’s findings on causation were unassailable for two reasons.

First, on a common-sense approach, there was no reason why the claimant would have abandoned his services
claim had it not been for
the negligent advice.

Second, the alternative explanation that he had a sudden outburst of honesty
and abandoned his dishonest claim, only at a later date to revive it by other means through a dishonest claim against his solicitors, was inherently implausible.

Raleys faces more claims. Following the original decision in Barnaby, it settled a number of claims days before trial while others proceeded.

Every case for alleged professional negligence needs to be considered on its own facts. Simply because one claimant has been successful, does not mean the next will be.

However, cross-examining your former client on the basis that his original claim was dishonest and disputing your own expert medical evidence will not be tolerated.

Whether Raleys will take a different view remains to be seen, but they will find no sympathy with the courts. SJ

Rob Godfrey is a partner and head of the professional negligence department at Mellor Hargreaves