Lost chance

Gibson v Clement Jones Solicitors (a firm) [2004] All ER (D) 127

In an action for negligence against solicitors for allowing an action to be struck out because of failure to serve a statement of claim, there can never be an ‘all or nothing’ approach. The court must first assess the prospects of success in the failed litigation, in terms of either a win at trial or a favourable settlement, and then place a percentage on that figure. In the present case the claimant’s original proceedings had been against her accountants based on their failure to advise her about the risks of the business she proposed setting up. The trial judge concluded that the claimant would have persisted in setting up the business, whatever advice she had received from the accountants, and therefore assessed her chances of success against them at 30%, awarding damages on that basis. The Court of Appeal refused to interfere with the judge’s finding of 30% on analogy with findings of contributory negligence, with which the Court of Appeal will not interfere unless the judge below was fundamentally wrong.