Professional negligence – damages
Loss of opportunity: solicitors: assessment: measure of damages: goats: solicitors’ negligence established: warranties: collateral warranties: misrepresentation: notional trials: Johne’s disease: s.14 Sale of Goods act 1979
Where, in a claim for professional negligence in the conduct of litigation, the original action was of long standing, the court had to assess the damages that would, on a balance of probabilities, have been awarded at a notional trial.
(1) William Browning (2) Maureen Browning v Brachers (a firm) (2004) QBD (Jack J) 13/2/04
The claimants (B) claimed damages for professional negligence against the defendant solicitors (S) in the conduct of litigation. B were goat farmers who contracted with G to buy his goat farming business 12 years before the instant case. G commenced proceedings for part of what was due from the sale, but B counterclaimed, principally for damages on the ground that the purchased goats were infected with Johne’s disease and had infected B’s herd. After five years of slow progress the matter was set down for trial when G died. Shortly afterwards, B instructed new solicitors in place of S. The notice of discontinuance was struck out as an abuse of process. G’s claim was settled for the sum already paid into court. On the trial date B’s counterclaim was dismissed. B commenced proceedings against Mrs G as executrix of G, but these were discontinued. Mrs G was unable to enforce either order for costs without a further order as B was legally aided. The proceedings in the instant case took five years to come to trial and B had instructed a third firm of solicitors. At no time did S advise B on the merits of their claim. B submitted that S failed to act diligently in prosecution of the counterclaim and failed to act timeously in compliance with the orders of the court.
HELD: (1) S had failed to progress the action, especially by failing to deal with the need for expert evidence. They took only limited steps and their negligence was established over a wide front. (2) The court had to assess B’s losses at a notional trial as if S had fulfilled their duty. B had to establish a real and substantial chance of success, assessed as a percentage, which would be applied to reduce the damages. The principles were those adopted in Mount v Barker Austin (1998) PNLR 493, (1) Peter Harrison (2) John Harrison (Claimants) v Bloom Camillin (a firm) (Defendants) and Sharif & ors v Garrett & Co (a firm) (2001) EWCA Civ 1269, (2002) 1 WLR 3188. A comparison had to be made between B’s position as it was, and that which would or might have pertained if the duty had been performed by S. The lapse of time had been great. Some witnesses were now unavailable. S had failed to secure expert evidence available at the time and it would be wholly wrong for the court in the instant hearing to take any course approaching a trial of the original issues utilising the expert evidence now available. The probability was that G would have succeeded in his claim and overall his chances of the sum he claimed was 75 per cent. There was an 80 per cent chance that G’s heard would have been found to have had Johne’s disease. It would be difficult to argue that G’s herd was of merchantable quality under Sale of Goods Act 1979 s.14(2) or fit for the purpose under s.14(3) of that act. G’s manager had represented to B that the herd was free of the disease, amounting to a collateral warranty. This would be reduced to 70 per cent to reflect the risk that B might nevertheless not be able to establish liability against G. A judge at a notional trial would probably have accepted that B could and should have mitigated their loss over a period of time. Further factors would have been the chance that B’s herd already had some Johne’s disease, faults in B’s husbandry, and loss of goodwill of the business. (3) The sum awarded to B should carry interest for the whole period. (4) S was liable for three-quarters of G’s costs.