Must have a loss, must have a cause

Friday, 26th June 2015

In a recent High Court case, Caytons Law secured the dismissal of a claim for over £700,000 against the Defendant firm of Solicitors.

Whilst the Judge, with regret, found that there had been a breach, he praised the partner and former employee of the Insured for their honesty and straightforwardness. Conversely, he found the Claimant to have been deliberately misleading in his pleadings, his witness statement and his conduct in the underlying matter.

The Judge then found that the Claimant’s case failed on causation on no less than three separate grounds. This result should be a clarion call to all those defending professionals to avoid rolling over because there has been a demonstrable, yet ultimately irrelevant, breach.

Caytons Law had identified the lack of causation from day one, and had to switch barristers owing to our initial Counsel being too preoccupied with breach. Subsequent Counsel agreed with, and finessed, our views of causation with the result that the claim was successfully defended.

It is clear that the causation Defence is still alive and kicking and its viability should be considered in every case.

What made the claim particularly outrageous, however, was that the Judge also found that the Claimant had suffered no loss. Again this had been identified by Caytons at a very early stage however, owing to the Claimant’s doggedness and refusal to calculate his damages in accordance with simple principles of logic, we were required to instruct two separate experts to support our case. Gratifyingly, however, the vast quantity of work we put into this case paid off.

How, then, could such an utterly futile case ever make it to trial? Readers will be unsurprised that the claim was “funded” by a CFA, and will no doubt be familiar with Claimants with CFAs approaching professionals, identifying a breach and then demanding money. There had historically been a prohibition against such arrangements, which were termed “maintenance and champerty”. Lord Denning’s comments in Re Trepca Mines Ltd. (No. 2) are still applicable to some current CFA claims:

“The common law fears that the champertous maintainer might be tempted, for his own personal gain, to inflame the damages, to suppress evidence, or even to suborn witnesses.”

Mercifully, post-Jackson, the heyday of spurious claims against professionals will fade, ultimately, to black.

Finally, it must be remembered that the Claimant’s persistence left our insured client with no choice but to go through this gruelling and stressful process. This is particularly inexcusable as the claim ultimately proved to be thoroughly opportunistic.

 

The materials on this website are provided for informational purposes only and do not constitute legal advice.