Sustainable conclusions: the consequences of failing to foresee material matters until trial

In the second of my two short articles reviewing some recent Court of Appeal authorities in the field of professional negligence, I review two cases concerning the failure of cases on the grounds that matters which appear to become important or even crucial at trial have to be sustainable on the pleadings and in the evidence.

In the case of Cotterhill Hitcham Solicitors LLP v Guest (2016) (unreported, 22/11/16) LTL 23/11/2016, the defendant former client of the claimant solicitors firm was ordered to pay their unpaid costs and disbursement’s following a trial. The defendant had previously instructed the claimant to act for her in a boundary dispute which compromised, much to the later regret of the defendant who unsuccessful attempted to appeal the same. The claimant sued for its unpaid costs and the defendant defended on various bases, including that a costs cap had been agreed and that she had been coerced into agreeing the compromise, with the consent order having been procured by collision.

Following trial, the defendant was ordered to make full payment of the costs however with the trial judge raising a concern as to whether the defendant had been appropriately advised.

The defendant appealed and was granted permission to do so on the ground that she could argue that the claimant firm had failed to reasonably advise her as to her prospects of success in the boundary dispute. The claimant / respondent argued that this had never former part of the defendant / appellant’s case and that they had not been placed on notice such an argument would be made until after the hearing of all the evidence. It urged the appeal court to upheld the finding of the trial judge that this was not an issue he could fairly determine in the circumstances.

It was held by the Court of Appeal that the material allegation of professional negligence had not been raised in evidence and that accordingly there had been no chance of responding to it. It held that the judge was correct in holding that this was not an issue he could fairly adjudicate upon in the absence of any evidence. The appeal was accordingly dismissed.

Without evidence, the firm could not properly know the case against it, in particular as to when it was alleged that it should have advised as to the appellant’s prospects of success. If the allegation as to failure to advise at an earlier stage had been advanced either before or at the start of the trial, the firm would unquestionably have wished, and would have been entitled, to adduce evidence directed to the issue, and to cross-examine the appellant. The argument could not be decided without evidence. In those circumstances, the judge was clearly right to conclude that any defence alleging negligence on the basis of failure to advise could not be fairly determined. It followed that the appeal had to be dismissed.

The case of Claire Worrall v Helena Antoniadou [2016] EWCA Civ 1219 concerned the judgment below in a clinical negligence matter. The claimant was the former patient of the defendant cosmetic surgeon. The claimant alleged that the defendant provided negligent advice in respect of a breast uplift. The defendant denied having given such advice and said that if she had been asked as to the need for and timing of such a procedure, she would have given an equivocal answer. The judge held as a fact that the defendant had unintentionally allowed the claimant to leave the consultation with the impression that a breast uplift was needed for 5 to 10 years and that this was negligent.

The defendant appealed on the basis that the court’s finding amounted solely to speculation.

The Court of Appeal held that a defendant medical professional should not be held to be liable in such cases unless he or she was responsible for a patient forming an incorrect impression, or having realised (actually or constructively) such a misapprehension had been made, took no steps to dispel it.

In this case it held that the court below found the defendant to have been negligent because she had failed by a non-committal answer to dispel an impression which she had not herself expressly given and which she had neither known nor ought to have known the claimant had somehow derived. It held that this could not be right or fair, as this was a basis which had not been pleaded or put to the defendant at trial.