Negligence claims are rife against professionals who fail to act properly when representing their clients.
Professional negligence requires the tests of duty of care, breach of duty and causation. However, when determining many professional negligence claims, the calculation of the loss is far from simple. Many claimants believe that if they had the opportunity to make £1,000,000, but the negligence of a professional caused them to lose that opportunity, then their loss would be £1,000,000. Unfortunately, the courts do not see it in this way.
Firstly, using the above £1,000,000 as an example, if the opportunity depends on the potential act of a third party, the claimant will need to satisfy the court, that on the balance of probability, there was a real chance that the third party would have acted so as to give rise to the opportunity in question. Should this be proven, causation would be established, and the court will then look to determine what loss the claimant has suffered.
The determination of loss and the value of any damages is taken not at the value of what the opportunity would have made, (£1,000,000), but on quantifying the value of the loss of chance.
The process is that the court undertakes an imprecise calculation of what they believe percentage chances of recovering that £1,000,000 would have been. The court often refers to experts and other evidence in trying to determine what the chance would have been. For example, a 50% chance of making the recovery of £1,000,000 would lead to an assessment of damages by the court of £500,000.
A real-life assessment of loss of chance damages is summarised in the cases:
- Allied Maples Group Limited v Simmons & Simmons [1995] 1 WLR 102 and
- Wellesley Partners LLP v Withers LLP [2016] 2 WLR 1351.
Potential claimants must therefore have in mind that should they lose an opportunity because of a professional, there is an opportunity to claim more than any fees incurred. However, they must also realise that the courts will not simply award them the value of any lost opportunity and thus be prepared to receive a determined proportion of the claim following a full court assessment.
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