Perry v Raleys Solicitors

Posted on 30/06/2019 · Posted in Expert Information, Expert Witness

This case involves compensation for “loss of a chance” in a claim against solicitors for negligence. The claimant lost at first instance, appealed and won at a Court of Appeal hearing only to lose in a final appeal by the defendant solicitors to the Supreme Court.

Mr. Perry is a retired coal miner who suffers from a condition known as Vibration White Finger (‘VWF‘) which can develop after over-exposure to vibratory tools. Symptoms include a reduction in grip strength and manual dexterity in the fingers, often leading to an inability to carry out routine domestic tasks without help.

If, at first, you don’t succeed, try, try again. Then quit. There is no point being a damn fool about it.”
W. C. Fields

In the late 1990’s a group of test cases established that the National Coal Board (later British Coal) had been negligent in failing to take reasonable steps to limit the exposure of its miner employees to VWF from excessive use of vibratory tools. A scheme was set up by the Department of Trade and Industry in 1999 to provide tariff-based compensation to miners affected. An award could include two types of damages compensation: general and special. Special damages could include a ‘Services Award’ to qualifying miners and revolved around six domestic tasks- gardening, window cleaning, DIY, decorating, car washing and car maintenance. If it could be proved that the claimant undertook one or more of those domestic tasks prior to suffering VWF, that he could no longer undertake them without assistance due to VWF, and finally that he was presently receiving help from others with those tasks, then he would be considered for a services award. Miners had to have a medical interview and examination to assess the severity of their VWF and if found to be sufficiently severe would become entitled to a rebuttable presumption that they qualified for a Services Award.

Between 1999 and 2011 nearly 170,000 claims (totaling some £1.7 billion) had been settled under the scheme and Mr. Perry’s claim was one of those settled in the first year of its running. He instructed the defendant solicitors and despite being given medical ratings enabling him to be eligible for both types of damages, in November 1999 he settled for £11,600 in general damages and made no claim for the Services Award within the specified time limit. In 2009 he made a negligence claim against Raleys alleging incompetent legal advice resulting in his failure to make a claim for a Special Award. His estimated loss was just over £17,000 plus interest.

At first instance, Raleys admitted liability but denied that their breach of duty had caused any loss. The Judge agreed that there was no causation between the breach and the alleged loss: Mr. Perry’s VWF had not caused him significant disability in undertaking any of the six tasks without help and he would not therefore have been able to make an honest claim for a Service Award. He appealed and the Court of Appeal found that there was causation and held that the “trial within a trial” (on whether Mr. Perry actually needed help to do the six tasks which he’d previously been able to do alone) was not appropriate. Mr. Perry was therefore awarded damages for loss of chance (to make an earlier claim under the scheme) of £14,000 plus interest.

Raleys appealed to the Supreme Court for a final decision. The court held that it wasn’t wrong in law or in principle for the judge at first instance in the County Court to have conducted a trial of the question as to whether Mr. Perry would or could have brought an honest claim for a services award. He had to prove his claim on the balance of probabilities, and a trial is the right way to evaluate the claim. He had to prove what he would have done had he been competently (ie non-negligently) advised. The first judge had found that Mr. Perry lacked credibility as a witness (for example his own evidence as to his disability was contradicted by medical evidence and photos of him on social media). He could not show that if he had been non-negligently advised he would have proved a claim for a Services Award on the balance of probabilities. If the claimant cannot succeed on this test, his claim falls entirely. For this reason and because proving the issue is of such fundamental importance, it is fair that neither party should be deprived of a full trial of the issue, and the “trial within a trial” at first instance was not an error. It can be a fair and appropriate means of assessing the client’s conduct. Further, there is a presumption that such claims will be honest and that a client would not be advised to pursue a poor claim with little chance of success. Judgement, delivered by Lord Briggs (with whom all members of the Court agreed) restored the order of the County Court and allowed the appeal.

Link: Supreme Court Judgment in Perry v Raleys Solicitors [2019] UKSC 5

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