“The correct approach on applications by defendants is, in my judgment, as follows: i) The court must consider whether the claimant has a “realistic” as opposed to a “fanciful” prospect of success: Swain v Hillman[2001] 2 All ER 91 ; ii) A “realistic” claim is one that carries some degree of conviction. This means a claim that is more than merely arguable: ED & F Man Liquid Products v Patel[2003] EWCA Civ 472 at [8] iii) In reaching its conclusion the court must not conduct a “mini-trial”: Swain v Hillman iv) This does not mean that the court must take at face value and without analysis everything that a claimant says in his statements before the court. In some cases it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporaneous documents: ED & F Man Liquid Products v Patel at [10] v) However, in reaching its conclusion the court must take into account not only the evidence actually placed before it on the application for summary judgment, but also the evidence that can reasonably be expected to be available at trial: Royal Brompton Hospital NHS Trust v Hammond (No 5)[2001] EWCA Civ 550 ; vi) Although a case may turn out at trial not to be really complicated, it does not follow that it should be decided without the fuller investigation into the facts at trial than is possible or permissible on summary judgment. Thus the court should hesitate about making a final decision without a trial, even where there is no obvious conflict of fact at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case: Doncaster Pharmaceuticals Group Ltd v Bolton Pharmaceutical Co 100 Ltd[2007] FSR 63 ; vii) On the other hand it is not uncommon for an application under Part 24 to give rise to a short point of law or construction and, if the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that the parties have had an adequate opportunity to address it in argument, it should grasp the nettle and decide it. The reason is quite simple: if the respondent's case is bad in law, he will in truth have no real prospect of succeeding on his claim or successfully defending the claim against him, as the case may be. Similarly, if the applicant's case is bad in law, the sooner that is determined, the better. If it is possible to show by evidence that although material in the form of documents or oral evidence that would put the documents in another light is not currently before the court, such material is likely to exist and can be expected to be available at trial, it would be wrong to give summary judgment because there would be a real, as opposed to a fanciful, prospect of success. However, it is not enough simply to argue that the case should be allowed to go to trial because something may turn up which would have a bearing on the question of construction: ICI Chemicals & Polymers Ltd v TTE Training Ltd[2007] EWCA Civ 725 .”
“In my judgment, what the court has to do (assuming that the plaintiff has established negligence) in such a case as the present, is to determine what the plaintiff has by that negligence lost. The question is, has the plaintiff lost some right of value, some chose in action of reality and substance? In such a case, it may be that its value is not easy to determine, but it is the duty of the court to determine that value as best it can.”
“In these circumstances, where the plaintiffs' loss depends upon the actions of an independent third party, it is necessary to consider as a matter of law what it is necessary to establish as a matter of causation, and where causation ends and quantification of damage begins. (1) What has to be proved to establish a causal link between the negligence of the defendants and the loss sustained by the plaintiffs depends in the first instance on whether the negligence consists of some act or misfeasance, or an omission or non-feasance…….. (2) If the defendant's negligence consists of an omission, for example to provide proper equipment, given proper instructions or advice, causation depends, not upon a question of historical fact, but on the answer to the hypothetical question, what would the plaintiff have done if the equipment had been provided or the instruction or advice given? This can only be determined from all the circumstances. The plaintiffs own evidence that he would have acted to obtain the benefit or avoid the risk, while important ,may not be believed by the judge, especially if there is compelling evidence that he would not…. Although the question is a hypothetical one, it is well established that the plaintiff must prove on the balance of probability that he would have taken action to obtain the benefit or avoid the risk…. (3) In many cases the plaintiffs loss depends on the hypothetical action of a third party, either in addition to action by the plaintiff, as in this case, or independently of it. In such a case, does the plaintiff have to prove on balance of probability, as Mr. Jackson submits, that the third party would have acted so as to confer the benefit or avoid the risk to the plaintiff, or can the plaintiff succeed provided he shows that he had a substantial chance rather than a speculative one, the evaluation of the substantial chance being a question of quantification of damages? Although there is not a great deal of authority, and none in the Court of Appeal, relating to solicitors failing to give advice which is directly in point, I have no doubt that Mr. Jackson's submission is wrong and the second alternative is correct.” (3) In many cases the plaintiffs loss depends on the hypothetical action of a third party, either in addition to action by the plaintiff, as in this case, or independently of it. In such a case, does the plaintiff have to prove on balance of probability, as Mr. Jackson submits, that the third party would have acted so as to confer the benefit or avoid the risk to the plaintiff, or can the plaintiff succeed provided he shows that he had a substantial chance rather than a speculative one, the evaluation of the substantial chance being a question of quantification of damages? Although there is not a great deal of authority, and none in the Court of Appeal, relating to solicitors failing to give advice which is directly in point, I have no doubt that Mr. Jackson's submission is wrong and the second alternative is correct.”
“20. For present purposes the courts have developed a clear and common-sense dividing line between those matters which the client must prove, and those which may better be assessed upon the basis of the evaluation of a lost chance. To the extent (if at all) that the question whether the client would have been better off depends upon what the client would have done upon receipt of competent advice, this must be proved by the claimant upon the balance of probabilities. To the extent that the supposed beneficial outcome depends upon what others would have done, this depends upon a loss of chance evaluation.”
“25. Applied to the present case, the principle that the client must prove on the balance of probabilities that he would have taken any necessary steps required of him to convert the receipt of competent advice into some financial (or financially measurable) advantage to him means that Mr Perry needed to prove that, properly advised by Raleys, he would have made a claim to a Services Award under the Scheme within time. To this the judge added that it would have to have been an honest claim.”
“35. The Court of Appeal, and counsel for Mr Perry in his submissions to this court, placed Hanif v Middleweeks (supra) squarely in the forefront of their criticism of the judge in conducting what they described as a trial within a trial. It was a professional negligence action in which the client was the co-owner of a nightclub which had been destroyed by fire. The insurers had issued proceedings for a declaration of non-liability, on the ground (among others) that the fire had been started deliberately by Mr Hanif’s co-owner. Mr Hanif counterclaimed for an indemnity under the insurance policy, but his counterclaim was struck out for want of prosecution because of the negligence of the defendant solicitors. The trial judge had assessed the prospects of Mr Hanif resisting the insurers’ allegation of arson by his co-owner at 25% and the Court of Appeal, applying both the Allied Maples and Kitchen cases, held that he had been right to adopt a loss of chance approach, rather than to decide, in a trial within a trial, whether or not the fire had been started deliberately. A submission that, in the light of the 25% finding, the fire probably had been deliberate, so that the claim should have been dismissed as being contrary to public policy was rejected, not least because it had been neither pleaded nor argued in the court below. 36. The Hanif case did not, therefore, involve any question about what the client would have done had he obtained competent advice. He had already given instructions for the making of the counterclaim, and it would have gone to trial but for the solicitors’ negligence in allowing it to be struck out for want of prosecution. There was, therefore, nothing which Mr Hanif had to prove, on the balance of probabilities, that he would have done in order to have benefitted from a competent discharge by the solicitors of their duty of care. The questions relevant to the lost counterclaim therefore fell squarely within the category identified in the Allied Maples case as calling for an evaluation of a lost chance, rather than proof upon the balance of probabilities….. 37. The case is therefore a conventional example of the correct application of the dividing line established in the Allied Maples case between those matters to be proved by the client on the balance of probabilities, and those to be addressed by reference to the assessment of the value of the lost opportunity. But it does not begin to establish some principle that it is always wrong for the court to try an issue relevant to causation in a professional negligence case, merely because that same issue would have fallen for determination in the trial of the underlying claim, lost due to the solicitors’ negligence. The question whether any given issue should or should not be tried in the negligence proceedings depends upon whether it is one upon which the client must prove his case on the balance of probabilities, or only one which should be subjected to the valuation of a lost chance. Treating the question as determined by asking whether the same issue would fall to be tried in the lost claim puts the cart before the horse.”
“…. But the case is, like the Hanif case, another conventional application of the dividing line established in the Allied Maples case. The client had started his claim and needed to prove nothing about what he would have done, on the balance of probabilities, in order to have benefited from his solicitors’ careful conduct of the proceedings.”
“As I see it, one must initially ask whether the claimant would, in fact, have proceeded with the action, had he not been deprived of the right to bring it. After all, one is concerned with the loss which the claimant has suffered and, for reasons I have given, this cannot, at least normally involve a market value exercise: generally it is only the claimant who could have brought the action, and, without his having done so, there would be no opportunity to recover damages. In my judgment, therefore, unless the point is conceded by the defendant in a particular case (and in most cases I suspect that it will be), the first question to be considered is whether the claimant would have actually have pursued the action to the point where he would, subject to the courts assessment of the prospects, have recovered something. Applying normal principles, it is for the claimant to satisfy the court that he would have pursued the action to that extent ,albeit only on the balance of probabilities. If the claimant fails at that point, that is the end of the matter. If he succeeds, it is necessary to turn to the second question, namely what would have happened if the Claimant pursued the action.”
“(1)The legal burden lies on the plaintiff to prove that in losing the opportunity to pursue his claim … he has lost something of value i.e. that his claim … had a real and substantial rather than merely a negligible prospect of success. (I say 'negligible' rather than 'speculative' -- the word used in a somewhat different context in Allied Maples Group Ltd v Simmons & Simmons[1995] 1 WLR 1602 -- lest 'speculative' may be thought to include considerations of uncertainty of outcome, considerations which in my judgment ought not to weigh against the plaintiff in the present context, that of struck-out litigation.) (2) The evidential burden lies on the defendants to show that despite their having acted for the plaintiff in the litigation and charged for their services, that litigation was of no value to their client, so that he lost nothing by their negligence in causing it to be struck out. Plainly the burden is heavier in a case where the solicitors have failed to advise their client of the hopelessness of his position …. (3) If and insofar as the court may now have greater difficulty in discerning the strength of the plaintiff's original claim … than it would have had at the time of the original action, such difficulty should not count against him, but rather against his negligent solicitors. It is quite likely that the delay will have caused such difficulty …. (4) If and when the court decides that the plaintiff's chances in the original action were more than merely negligible it will then have to evaluate them. That requires the court to make a realistic assessment of what would have been the plaintiff's prospects of success had the original litigation been fought out. Generally speaking one would expect the court to tend towards a generous assessment given that it was the defendants' negligence which lost the plaintiff the opportunity of succeeding in full or fuller measure. To my mind it is rather at this stage than the earlier stage that the principle established in Armory v Delamirie (1722) 1 Stra 505 comes into play.”
“38 In stating the principles generally applicable to this class of case, I indicated in Mount v Barker Austin [1998] PNLR 493, 510 a two-stage approach. First, the court has to decide whether the claimant has lost something of value or whether on the contrary his prospects of success in the original action were negligible. Secondly, assuming the claimant surmounts this initial hurdle, the court must then ‘make a realistic assessment of what would have been the plaintiff's prospects of success had the original litigation been fought out’. “39 With regard to the first stage, the evidential burden rests on the negligent solicitors: they, after all, in the great majority of these cases will have been charging the claimant for their services and failing to advise him that in reality his claim was worthless so that he would be better off simply discontinuing it. The claimant, therefore, should be given the benefit of any doubts as to whether or not his original claim was doomed to inevitable failure. With regard to the second stage, the Armory v Delamirie (1722) 1Str 505 principle comes into play in the sense that the court will tend to assess the claimant's prospects generously given that it was the defendant's negligence which has lost him the chance of succeeding in full or fuller measure.”
“Evidence of what happened later may, in certain cases, assist in determining what a Judge at the notional trial date would have done, and what evidence might have been brought then; see Johnson v Perez. For instance, if there were no medical reports prepared at the notional trial date, later medical reports may assist in determining what reports would have said then. The longer the time has passed from the notional trial date, the less material the report will be.”
“If the trial judge is presented with important new evidence that would or might not have been available to the judge at the notional trial, then I would respectfully agree with the views expressed in Charles, namely that, unless the evidence relates to some entirely new matter which could not possibly have been known about at the date of the notional trial, the facts as they have since turned out should be taken into account by the trial judge.”
“In the present case, it seems to me that the agreed medical evidence of Professor Greenhalgh and Mr Marcuson could have been available at the notional trial in 1996. Therefore, the trial judge in the present action should have taken it into account and acted upon it. Even if there was doubt in the judge's mind about whether it would in fact have been available in 1996, he should have taken it into account and given it full effect.”
“48. My conclusion is as follows. The scan and opinion produced in 2004 and the fact that it would have probably been available at the date of notional trial, has had a material influence on the question whether the appellant stood a good or a bad chance of convincing a trial judge in 1996 that he was acting reasonably. On behalf of the appellant Mr Boyd would wish that evidence to be put in for that purpose – indeed in his skeleton argument before us he suggested it would be "absurd" not to take it into account.”
“The first and most important feature of the case (to which I will return in greater detail later) is that we do not yet know what our case will be on causation. I cannot overemphasise the fact that to embark on the litigation in this state would be catastrophic. Nothing gives a Defendant greater encouragement or greater scope for inflicting on Plaintiffs in such a case as this than for the Plaintiffs to be uncertain about a central issue such as causation. In particular, it is crucial that the Plaintiffs must decide what is likely to be their best case on the biological mechanism ( or mechanisms) of injury.”
“As I explained to you in our conversation, I have unfortunately come to the view that the prospects of success in Rachael’s claim have now reduced somewhat. Even before now, the chances of success were assessed as only being at best borderline. No vaccine claim has ever succeeded against a manufacturer in this country. It has taken a lot of effort to get this far. However the matters raised in the defence and in particular the new information regarding the date of supply of the vaccine means unfortunately the prospects of success have slipped below 50%. I am under a professional duty to report this to the Legal Services Commission and they are bound to discharge Rachael’s Legal Aid Certificate…… It is my professional duty to advise you that you may wish to consider whether to seek independent legal advice regarding the limitation point.”
“Our researches have indicated that there is a strong likelihood that the MMR vaccine is responsible for the injuries suffered by the hundreds of children we represent.”
“Of course it is not impossible that persisting measles virus in a human brain might in some individuals have a result different from SSPE Subacute sclerosing panencephalitis or MIBE Measles inclusion body encephalitis .But Dr. Kinsbourne has supplied no evidence for such a possibility, beyond his own unsubstantiated speculation on this point, concerning what effect a persisting measles virus might cause in a human brain, I find the evidence to weigh heavily in the Respondent’s favour. On this point, I have on one side the testimony of Drs. Griffin and Ward, with vast experience studying the measles virus, plus the similar testimony of Drs. Wiznitzer and Rust; on the other side is the testimony of Dr. Kinsbourne, who has no special expertise concerning the measles virus.”
“Dr. Kinsbourne may have relied on the appearance of symptoms of MIBE (months after vaccination) and SSPE ( years after vaccination) for the lack of any firm outer limit. If he were reasoning by analogy to these conditions, it would not matter when the symptoms manifested. This is yet another example of Dr. Kinsbourne ‘cherry-picking’ data that supports his hypothesis, but blithely ignoring facts that contradict it.”
“C. Opinion (1) Measles vaccine virus and mumps vaccine virus (Urabe strain) are biologically plausible causes of seizures. (2) The seizure onset occurred within a medically reasonable temporal interval after the MMR vaccination. (3) The onset seizure was associated with anoxia. (4) There is no evidence of any alternative cause of her epilepsy in the medical records. (5)1ntractablc seizure disorders are apt to cause incremental brain damage and corresponding neurodevelopmental impairment. It is therefore my opinion. on the balance of probabilities. that the MMR vaccination caused Rachael Coote's intractable mixed epilepsy. and that Rachael 's learning difficulties are sequelae of her vaccine-related epilepsy.”
“However I would suggest it remains highly questionable that this line of reasoning will be accepted, given that Dr. Kinsbourne appears to be the first expert in a long line prepared to report favourably for the claimants , and given that to date, medical opinion ( including eminent and respected experts) has weighed very heavily on the side of stating that it was not possible to say that on the balance of probabilities MMR was the cause of the damage. There are a large number of potential causes of this injury and I do not consider it to be a straightforward step to show that one should reasonably exclude the host of common, albeit in these cases unproven causes”