Court rejects legal aid fund negligence claim

Leonard and another v Byrt and others (Court of Appeal - 29 January 2008)

A professional negligence claim against the claimants' solicitor, who was sued for failing to secure public funding to enable them to prosecute primary litigation to a successful conclusion, was dismissed by the Court of Appeal. In the primary litigation, the claimant sued the builders of a yacht for a construction fault.

The claimants had dispensed with their solicitor after their legal aid certificate was discharged for failing to accept a settlement offer deemed reasonable. The primary litigation was subsequently struck out for claimant "gross delay". The claimants then brought proceedings against the respondents: their solicitors, expert witness and barrister.

The respondents defended the loss of chance claim by multiplying hypothetical percentage chances of success of the various contingencies in the claim, showing the claimants' chance of winning the case was negligible. The Court of Appeal decided that this approach should not be used where the contingencies were not all related.

They instead concentrated on a specific issue in the case: whether the claimants would have successfully defended a strike out application for delays in the claim (following an application to amend). The Court of Appeal held that their chance of doing this was negligible and so the appeal was dismissed.

COMMENT

This case shows the courts taking a broader approach to loss of chance claims, rather than using a detailed mathematical analysis of the percentage chances of success of various contingencies. The Court of Appeal therefore followed its earlier decision of Hanif v Middleweeks (2000). - Laura Newcombe, BLM Manchester.

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