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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Coudert Brothers v Normans Bay Ltd [2004] EWCA Civ 215 (27 February 2004) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2004/215.html Cite as: [2004] EWCA Civ 215 |
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
MR JUSTICE BUCKLEY
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE LAWS
and
LORD JUSTICE CARNWATH
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COUDERT BROTHERS |
Appellant |
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- and - |
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NORMANS BAY LIMITED (formerly Illingworth, Morris Limited) |
Respondent |
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Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr George Leggatt QC, Mr Tom Adam (instructed by Brooke North & Co) for the Respondent
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Crown Copyright ©
Lord Justice Waller:
Proof of 3 year plan
Voucher point
Other points – is this loss of a chance case?
"(2) If the defendant's negligence consists of an omission, for example to provide proper equipment, or to give proper instructions or advice, causation depends, not upon a question of historical fact, but on the answer to the hypothetical question, what would the plaintiff have done if the equipment had been provided or the instruction or advice given. This can only be a matter of inference to be determined from all the circumstances. The plaintiff's own evidence that he would have acted to obtain the benefit or avoid the risk, while important, may not be believed by the judge, especially if there is compelling evidence that he would not. In the ordinary way, where the action required of the plaintiff is clearly for his benefit, the court has little difficulty in concluding that he would have taken it. But in many cases the risk is not obvious and the precaution may be tedious or uncomfortable, for example the need to use ear defenders in noisy surroundings or breathing apparatus in dusty ones. It is unfortunately not unknown for workmen persistently not to wear them even if they are available and known to be so. A striking example of this is Cummings (or McWilliams) v Sir William Arrol & Co Ltd [1962] 1 All ER 623, [1962] 1 WLR 295; the employers failed in breach of their statutory duty to provide a safety belt for the deceased steel erector. But his widow failed in her claim under the Factories Act 1937 because there was compelling evidence that, even if it had been provided, he would not have worn it.
Although the question is a hypothetical one, it is well established that the plaintiff must prove on the balance of probability that he would have taken action to obtain the benefit or avoid the risk. But again, if he does establish that, there is no discount because the balance is only just tipped in his favour. In the present case the plaintiffs had to prove that, if they had been given the right advice, they would have sought to negotiate with Gillow to obtain protection. The judge held that they would have done so. I accept Mr Jackson's submission that since this is a matter of inference, this court will more readily interfere with a trial judge's findings than if it was one of primary fact. But even so, this finding depends to a considerable extent on the judge's assessment of Mr Harker and Mr Moore, both of whom he saw and heard give evidence for a considerable time. Moreover, in my judgment there was ample evidence to support the judge's conclusion. Mr Jackson's attack on this finding was, as I have explained, something of an afterthought and not, I think, undertaken with great enthusiasm. I am quite unable to accede to it.
(3) In many cases the plaintiff's loss depends on the hypothetical action of a third party, either in addition to action by the plaintiff, as in this case, or independently of it. In such a case does the plaintiff have to prove on the balance of probability, as Mr Jackson submits, that the third party would have acted so as to confer the benefit or avoid the risk to the plaintiff, or can the plaintiff succeed provided he shows that he had a substantial chance rather than a speculative one, the evaluation of the substantial chance being a question of quantification of damages?
Although there is not a great deal of authority, and none in the Court of Appeal, relating to solicitors failing to give advice which is directly in point, I have no doubt that Mr Jackson's submission is wrong and the second alternative is correct.
In Chaplin v Hicks [1911] 2 KB 786, [1911–13] All ER Rep 224 the defendant's breach of contract prevented the plaintiff from taking part in a beauty contest and deprived her of the chance of winning one of the prizes. The Court of Appeal upheld the judge's award on the basis that while there was no certainty that she would have won, she lost the chance of doing so.
In Kitchen v Royal Air Forces Association [1958] 2 All ER 241, [1958] 1 WLR 563 the defendant solicitors negligently failed to issue a writ against the tortfeasor with the result that the plaintiff's claim was statute-barred. The Court of Appeal upheld the judge's award of £2,000, which was two-thirds of the full liability value of the claim. The court firmly rejected the defendant's contention that she had to establish on a balance of probability that she would have won the action. Lord Evershed MR considered that she had 'lost some right of value, some chose in action of reality and substance' (see [1958] 2 All ER 241 at 251, [1958] 1 WLR 563 at 575). But Parker LJ put the matter more generally:
If the plaintiff can satisfy the court that she would have had some prospect of success, then it would be for the court to evaluate those prospects, taking into consideration the difficulties that remained to be surmounted’. (See [1958] 2 All ER 241 at 252, [1958] 1 WLR 563 at 576.)”
"Reverting to the three to five year point, I have indicated that I took a view on balance as to the position as it would have been regarded by the Russian Court, that balance being no more than a reasonably clear one in favour of the Claimant. But I would upgrade that to a not insignificant extent because of the much more difficult task that I think Mr Gurov would have had in persuading the Prosecutor to make a challenge. The other main factor of course, which is implicit in the judgment and in what I have already said, is that the Courts would then be looking at the matter on a different factual premise, namely the SPA and Investment Agreements having been completed as required by the Moscow Property Fund on a three year basis."
"However in the present case the answer to the question "What would have happened?" is not determinative of the issue of causation. At the trial the defendants accepted that if the professional standard of care required any doctor who attended to intubate Patrick, Patrick's claim must succeed. Dr. Horn could not escape liability by proving that she would have failed to take the course which any competent doctor would have adopted. A defendant cannot escape liability by saying that the damage would have occurred in any event because he would have committed some other breach of duty thereafter. I have no doubt that this concession was rightly made by defendants. But there is some difficulty in analysing why it was correct. I adopt the analysis of Hobhouse LJ in Joyce v. Merton, Sutton and Wandsworth Health Authority [1966] 7 Med LR 1. In commenting on the decision of the Court of Appeal in the present case, he said, at p. 20:
Thus a plaintiff can discharge the burden of proof on causation by satisfying the court either that the relevant person would in fact have taken the requisite action (although she would not have been at fault if she had not) or that the proper discharge of the relevant person's duty towards the plaintiff required that she take that action. The former alternative calls for no explanation since it is simply the factual proof of the causative effect of the original fault. The latter is slightly more sophisticated: it involves the factual situation that the original fault did not itself cause the injury but that this was because there would have been some further fault on the part of the defendants; the plaintiff proves his case by proving that his injuries would have been avoided if proper care had continued to be taken. In the Bolitho case the plaintiff had to prove that the continuing exercise of proper care would have resulted in his being intubated."
"The court may allow an amendment whose effect will be to add or substitute a new claim, but only if the new claim arises out of the same facts or substantially the same facts as a claim in respect of which the party applying for permission has already claimed a remedy in the proceedings."
"The court may allow an amendment whose effect will be to add … a new claim, but only if the new claim arises out of the same facts or substantially the same facts as are already in issue on a claim in respect of which the party applying for permission has already claimed a remedy in the proceedings."
"37. Mr Jervis Kay QC, who appeared for Mr Martin, encouraged us to adopt a narrow interpretation of both CPR 17.2 and s 35(5) of the 1980 Act. So far as the latter was concerned, he argued that the words 'the same facts as are already in issue on any claim' were not apt to embrace facts that were in issue on the defence to such a claim.
38. He did not explain to us why, as a matter of policy, the meaning of the words should be restricted in this way. We suggested to him that it seemed to be unfair, if a defence was served at the end of, or just outside, the primary limitation period, a claimant could not riposte by saying: 'Well even if, which I dispute, the accident happened in that way, you were negligent because …'. His reply was that the claimant would have to issue a new claim, incorporating an appropriate plea under the 1980 Act, and consolidate that claim with her existing claim. It is hard to reconcile that expensive and cumbersome procedure with the philosophy of the overriding objective contained in the CPR."
(i) Before the judge this was one of many points which both sides were having to consider at the moment the trial was coming on;
(ii) Coudert was wanting to rely on the point as breaking the chain of causation, and IML did not want to go further than saying even if Coudert established that permission was needed, the fact that permission was needed was their fault and that could not break the chain of causation.
(iii) Coudert was already prepared to meet the point including the question whether they were negligent by virtue of the reply.
(iv) Fairness in the Goode v Martin sense, should only allow Coudert to be entitled to run the Anti Monopoly point, if they would also allow IML to raise the issue of whether if permission was required, it was their fault; if raising the point by way of reply would be inappropriate (which in my view it was not), then pleading the same in the points of claim limited to providing an answer to the break in the chain of causation should be allowed.
(v) Coudert cannot point to any way in which they would have conducted the proceedings below differently if the point had been pleaded in the particulars of claim rather than in the reply.
Final Assessment
Lord Justice Laws:
Lord Justice Carnwath:
Lord Justice Waller:
(1) Without Mr Gurov and Mr Lewis falling out, the original transaction was reasonably safe: a prosecution in unmeritorious circumstances was instigated by Mr Gurov, and the lower courts invalidated the transaction where one might have expected them not to; permission to appeal to the higher courts was refused.
(2) If the amended transaction had been considered by the lower courts in similar circumstances i.e. under a prosecution instigated under the influence of Mr Gurov, the same process of reasoning would have held the amended transaction to be invalid, and it is unclear whether permission to appeal would have been granted in such circumstances.
(3) The judge's calculation of the loss of a chance did not seem to take into account the impact of Mr Gurov's influence. He upgraded the value of the reasonable chance assessed by reference to normal circumstances (i.e. where no Gurov influence was present), by assessing that it would have been improbable that Mr Gurov's influence would have succeeded in persuading the prosecutor to prosecute.
(4) If anything, the Gurov influence, for which Coudert had no responsibility, should have downgraded the value of any chance.
(5) A crosscheck as to a fair assessment of the lost chance, can be provided by calculating the difference in the chance which the unamended deal had, with the chance the amended deal had. The only chance which Coudert should have supplied was that better chance.
(6) Whichever way one looks at it, to allow IML to recover 40% of their losses in the circumstances that prevailed, reflects a fair assessment of the chance which Coudert failed to supply.
Lord Justice Laws:
Lord Justice Carnwath: