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17 November 2016 | Comment | Article by Richard Locke

Reminder to claimants: “get your ducks in a row” before bringing professional negligence claim


In the recent case of Gonul Guney v Kingsley Napley [2016] EWHC 2349 (QB), the court provided a salutary lesson to claimants that it does not pay to seek damages for heads of loss that are not recoverable in law, or for damages where you have no supporting evidence.

The Background

The professional negligence claim against Kingsley Napley (the “Solicitors”) arose out of the distribution of the estate of Mr Ramadan Guney (the “Deceased”). The Deceased died in 2006, and had been married to Suheyla Guney, the Claimant’s mother, who had died in 1992. The Claimant was one of the children of the Deceased and Suheyla Guney. The Deceased died intestate, but his estate was subject to a claim for financial provision by his former partner, Diane Holliday, under the Inheritance (Provision for Family and Dependants) Act 1975. The Solicitors represented the Claimant in the financial provision claim.

Towards the end of 2011, after a long dispute, the financial provision claim settled. Then in 2014, the Claimant brought a professional negligence claim against the Solicitors alleging that had she been properly advised she would have settled the financial provision claim at a much earlier date and as a result would have avoided liability for her Solicitor’s costs, as well as those of Diane Holliday. The matter is due to go to trial in January 2017.

The Claim

In April 2016, the Solicitors applied for summary judgment and/or to strike out parts of the claim on a number heads of loss; this was on the basis that they had no reasonable prospect of success. The Claimant responded in August 2016 by seeking to re-amend her claim to include: (i) a new allegation that the Deceased did not die intestate but a will made in 1994 remained valid. It was alleged that the Solicitors had lost the original; and (ii) a new claim for £5.7 million in respect of the lost chance to settle with Ms Holliday on better terms and retain two properties which had to be sold. The Claimant argued that she would have subsequently achieved greater sums for the properties and the Solicitors were liable for the difference.

The Application to Amend

The judge first considered the Claimant’s application to amend her case, pointing out that her decision on whether to allow the amendments was a balancing act between competing factors and was a matter of discretion.

The amendments were brought late in the day. The judge noted that there was no reason given for the lateness of the proposed amendments and nothing was raised in the application that could not have been pleaded in the original Particulars of Claim. She felt that the factual and expert evidence that would be required as a result of the amendments was likely to imperil the trial date.

Furthermore, the amendments were factually inconsistent with many other aspects of the case: the claim had always proceeded on the basis that the Deceased died intestate in 2006. However, the Claimant was alleging for the first time, in August 2016, that a will drafted in 1994 may have been valid. For these reasons, the judge refused to allow the Claimant to amend her case.

The Application for Summary Judgment/Strike Out

The judge addressed each of the elements that the Solicitors sought to challenge, granting summary judgment in relation to three heads of loss and striking out two.

One allegation, that the Claimant had lost profits from her practice as a solicitor whilst dealing with the financial provision claim was too remote. Furthermore, the Claimant had not particularised this allegation or provided evidence in support. In another allegation, the Claimant sought damages for stress and inconvenience. The judge held that such general damages were irrecoverable, stating:

“This was not a contract for the provision of a holiday, a pleasurable activity relaxation or peace of mind…This was a contract to act in relation to a family dispute over inheritance matters. It is too remote to say that solicitors conducting litigation assume liability for the stresses that that imposes on the litigants involved.”

Comment

This case serves as a reminder to claimants of the importance of scrutinising all elements of your professional negligence claim at the outset and to ensure that the damages you are seeking are realistic. Whilst it is not impossible to amend a claim once it has been filed at court in the event that new evidence comes to light, there must be a good reason. The court will also consider whether any amendments will affect the trial timetable and will look unfavourably upon any delays.

It is therefore essential that claimants take stock before bringing proceedings against a professional: they must consider all the issues and seek to uncover all evidence in support of their claim before pressing the button.

Author bio

Richard is a Partner and an elected partner on the firm’s board of management.  He is also Group Head of the ever expanding dispute resolution team at Hugh James. He conducts major commercial disputes frequently with an international flavour including commercial claims, mining disputes, shareholder and partnership disputes, professional negligence claims, contentious IT disputes, injunctive relief and insolvency.

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