Negligent advice must be causative of loss for damages to be recoverable. However, the causation must be real. In Geraint Thomas and Christine Thomas v Ian Albutt [2015] EWHC 2187 (Ch), even though advice was (in part) negligent, it reduced the prospects of success in litigation by only 5-10%, which the Court decided was not sufficient to be causative of a loss of a chance.
This case concerned advice given by the defendant, a barrister, to the claimants, a couple who had recently been awarded planning permission to use their property as a luxury caravan park and camp site. A judicial review application was bought by local residents to quash the planning permission and the barrister acted for the couple in their capacity as interested parties.
When the Court quashed the planning permission, the couple brought a claim against the barrister, arguing that the advice they received from him was negligent on several grounds. They sought damages in respect of the costs they had incurred resisting the judicial review.
Mr Justice Morgan found that the barrister had 'by a narrow margin” been negligent in one aspect of his advice. However, on the balance of probabilities, the Judge went on to find that the decision reached at the judicial review hearing would not have been altered even if non-negligent advice had been given.
The Court also considered whether non-negligent advice by the barrister would have had the potential to improve the claimants’ case, and whether they may be entitled to damages reflecting their lost chance of putting forward a different case at the judicial review hearing. Existing case law suggests that negligent advice which reduces the prospects of success of litigation by less than 10% is not sufficient to make it causative of a loss of a chance. The Judge found that in this instance, in relation to the negligent advice given, any potential improvement in the claimants’ case would have been limited to between 5% and 10%. Accordingly, the couple did not meet the required threshold and their case was rejected.
This case demonstrates the importance of establishing that a breach of a professional’s duty of care actually causes a loss. Although on this occasion negligence was found in one aspect of the defendant’s advice, this did not in fact cause any loss and/or was not sufficient to amount to a loss of a chance.
The author Rachel Green is a member of Burges Salmon's professional negligence team led by partner Andrew Burnette.