Edwards (on behalf of the estate of the late Thomas Arthur Watkins) v Hugh James Ford Simey (A Firm) [2019] UKSC 54

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This case considered the admissibility of after-acquired evidence in professional negligence proceedings. The courts were able to dispense with a number of civil law principles and lost litigation jurisprudence by reference to the case's "fact-specific" nature.

Facts

The deceased claimant developed vibration white finger during his employment by the National Coal Board. He instructed the defendant solicitors to claim damages under the Department for Trade and Industry's tariff-based compensation scheme (the "Scheme"). General and special damages were the main types of award available under the Scheme.

The claimant underwent an initial medical examination. His condition was diagnosed as of sufficient severity to entitle him to general damages as well a services award.

On the defendants' advice the claimant accepted an offer in full and final settlement that comprised the general damages award only. The claimant alleged that he lost the opportunity to pursue the special damages services award and brought professional negligence proceedings against the defendants. A single joint expert was commissioned to evaluate causation (the "Second Report").

Judgment

The court at first instance held that the defendants were negligent. However on the basis of the Second Report the claimant's claim for special damages had no chance of success. The court therefore held that the claimant suffered no loss and the claim lost was of no value.

On appeal the court held that the trial judge was wrong to determine the claim on the basis of the Second Report, as it was not available at the time of the claim under the Scheme.

The case was appealed to the Supreme Court on the question of whether the prospects of success were to be judged as at the date the claim was lost or the date when damages were awarded. The Supreme Court dismissed the appeal on the basis of fact-specific reasoning. In doing so it dispensed with several established principles.

The Bwllfa principle

This provides that the principle of assessing damages at the date of breach does not prevent the court taking into account events that take place before the assessment of the rationale being that the court should prefer facts available to prophecies when assessing damages.

Despite concluding that the principle was not relevant and stopping short of expressing a general view on the admissibility of after-acquired evidence, the court held the Second Report was irrelevant.

Evidence in professional negligence proceedings

By disregarding the Second Report the court departed from the prevailing line of authorities that it should take into account all relevant evidence available at the trial of professional negligence proceedings when deciding on which date to make the determination of loss.

The Court of Appeal held that it is, rather, a matter of public policy whether after-coming events can be considered. In doing so it reasserted the orthodox approach from the leading authority Whitehead v Searle [2008] EWCA Civ 285 which restricted the admissibility of such evidence.

Here the courts referred to the "rough and ready" nature of the Scheme which sought to save costs by avoiding any detailed assessment of the level of disability of every claimant for a services award. It therefore excluded the Second Report which was not commissioned in line with or under the Scheme.

Restitutio in Integrum

This provides that, as far as possible, those who have suffered loss through professional negligence should be put in the position they would have been in without such negligence.

Here the court held that any "uncovenanted windfall" received by the claimant was justified by the Scheme's cost-effective nature. Using a fact-specific reasoning the court therefore concluded it was irrelevant that recoverability under the Scheme departed from recoverability principles under common law and in conventional civil proceedings.

The court's reasoning (or lack of) nevertheless provides a useful insight into the updated position as to the admissibility of after-acquired evidence in professional negligence proceedings.