Under-settlement of personal injury claims - I don’t think so, do you?

The recent case of Berney v Saul highlights the growing numbers of professional negligence claims involving under-settlement of personal injury claims. However, this case provides welcome clarification that even where there has been a clear breach of duty, arguments may be available to defeat the claim.

Background

Mrs Berney was involved in a road traffic accident on 20 April 1999 in which she sustained a number of injuries. She instructed the defendant law firm (Saul) to pursue her claim for personal injury. The insurers of the driver at fault admitted liability. A claim form was issued in April 2002, but particulars of claim were never filed or served. The matter did not progress and in 2004 Mrs Berney instructed another firm of solicitors. Following advice she chose to settle the claim for £25,000 plus costs rather than applying to serve the particulars of claim out of time and risk the claim being struck out (counsel had advised the application had a 20 per cent prospect of success).

In 2011 Mrs Berney sued Saul. She claimed damages of over £800,000 on the basis that, had Saul served the particulars of claim in time, she would have had the opportunity to claim (among other things) for loss of earnings. In particular, Mrs Berney alleged that the injuries she sustained in the accident prevented her from obtaining a training contract, which meant that she could not work as a solicitor. Saul admitted liability but denied that Mrs Berney would have recovered more than £25,000.

Judgment analysis

Loss of chance principles (Mount v Barker Austin) stipulate that a claimant must overcome the following three hurdles before a claim for loss of a chance will succeed:

1. Whether the claimant would have acted to obtain the benefit/avoid the risk of the litigation failing, had they been advised accordingly. 
2. That the chance the claimant lost was real, not speculative or fanciful. 
3. The court will then assess the value of the lost chance and apply a discount to the claim accordingly (ie, if the claim had a 20 per cent chance of success, a discount of 80 per cent should be applied to the claim).

In her judgment, HHJ Walden applied Mount and found that Mrs Berney failed to overcome the second hurdle. There was no causative link found between the accident and her inability to obtain employment as a solicitor. In the judge’s view, Mrs Berney recovered far more in settlement than she would have done if the case had reached trial (she valued Mrs Berney’s claim at no more than £10,000). Accordingly, Mrs Berney’s claim failed because she could not prove that she had lost a real and substantial chance of recovering more than £25,000.

Case analysis

This case highlights that, even where there is a blatant breach of duty (as was the case here when Saul failed to file particulars of claim) there may still be defences available to the defendant solicitor regarding causation and quantum. Of particular importance will be:

• The conclusions of the medical experts. 
• The credibility of the expert evidence (particularly if there is more than one). 
• Any pre-existing conditions. 
• (In the case of claims for loss of earnings) the subsequent job prospects of the claimant and/or the actual impact on a claimant’s working life.