Loss of Chance in Professional Negligence Cases

If your solicitors have been negligent in a litigation matter, you could well have a claim against them. However, it can be hard to work out what your claim is worth, as it relates to your “loss of chance”. 

What is loss of chance?

A "loss of chance" is when you lose the opportunity to win a case against your opponent. You have to prove that you would have won the case and that you would have recovered damages, had it not been for your solicitor's negligence.

How is loss of chance calculated?

This has been considered recently in the case of Chweidan v Mishcon De Reya. In that case, the law firm, Mishcon De Reya, failed to lodge a cross appeal to the Employment Tribunal's decision within the prescribed time limits.

The Court set out a six point test for assessing loss of chance:

• The Claimant must prove that the underlying claim had a real prospect of success.
• The Court will then evaluate the prospects of success.
• The next step is for the Court to assess the likely damages the Claimant would have received in the underlying claim, taking into account any uncertainties. This is normally expressed as a percentage.
• In some cases a broad brush approach should be adopted.
• The Court will consider whether there is any evidence of the possibility of a settlement.
• If there are multiple hurdles to the claim, an average percentage is applied, taking into account each of the hurdles. Hurdles which the Court would consider are matters of causation and quantum.

Solicitors often give clients a view of their chances of success in percentage terms. This can be used as a yard stick for calculating damages for the claimant in a professional negligence claim. 

Equally, if the negligent Solicitor is acting under the terms of a conditional (no win no fee) agreement, it would be difficult for them to argue that the claim had low prospects of success as solicitors generally only enter into these arrangements where the prospects of success are good.

What should I do if I have lost the chance to bring a claim?

If you have lost the opportunity to bring a claim because your solicitor has made a mistake, you may well be entitled to damages. 

Samuels Solicitors, based in Devon, is a niche litigation firm, with a specialism in bringing claims against solicitors. Our senior partner, Jan Samuel, has been a member of the Professional Negligence Lawyers Association for many years, and is described by clients as a "formidable" lawyer. We have successfully recovered damages for countless clients who have been let down by their solicitors, over the last 25 years.

We are committed to access to justice, and so where you have a strong case, we will discuss with you whether it is appropriate for us to act under the terms of a conditional (no win no fee) agreement. We have other flexible funding arrangements available for most cases. 

If you have been let down by a solicitor, and have lost the opportunity to bring a claim, contact us for a free discussion about how we can help.