Lost Opportunity

Harrison and Another v Bloom Camillin (Ch D TLR 12 November)

The claimants had an unhappy relationship with their professional advisers. They alleged that their accountants had been negligent when acting for and advising them in connection with the acquisition of shares. They instructed solicitors to sue the accountants for damages but unfortunately the solicitors failed to serve a writ within the relevant limitation period, so the claimants were now suing them for the loss which they claimed to have suffered. The claim was for ‘loss of chance’. Would the claimants have actually pursued the action to the point where they would have recovered something? The court should take into account the possibility of a settlement being reached. After all, the great majority of professional negligence actions settled. If the court decided to proceed on the basis that the action would not have been settled then it was necessary to assess the likely outcome and then apply an appropriate fraction to that sum to reflect uncertainties. A claimant’s prospects might be so strong that it would be a denial of justice to apply a fraction to the likely damages that would have been recovered. Alternatively a claimant’s prospects of success might be so slim that it would simply be inappropriate to award anything. In general, the court would be far more ready to determine that a claimant would have failed or succeeded on a point of law than to determine that a claimant would have failed or succeeded on a point of fact.