Perry v Raleys Solicitors [2019] UKSC 5 is the leading modern authority on loss-of-chance in solicitor negligence claims. Lord Briggs, giving the sole judgment, drew a clean line between two questions: what the claimant himself would have done, and what somebody else would have done in response. The first is decided on the balance of probabilities. The second is quantified as a percentage chance. For any professional indemnity claim against a solicitor that turns on a missed opportunity, this is the starting point.
Mr Perry was a former miner. The Coal Health Compensation Scheme paid tariff sums for vibration white finger, with an additional 'services' claim available where the condition prevented the sufferer from doing routine domestic tasks such as gardening, DIY or car washing without help. Raleys Solicitors acted for Mr Perry on his general damages claim but he did not pursue a services award. He later argued that Raleys had failed to advise him, that he would have made a services claim had he been advised, and that the claim would have succeeded.
The trial judge found that Mr Perry had not honestly proved he could not carry out the relevant activities unaided. The Court of Appeal reversed, treating the point as a loss-of-chance question. The Supreme Court restored the trial judge's finding and set out the framework that now governs.
The court drew the distinction that had been muddled in earlier authorities:
A claimant who cannot show, more likely than not, that she would have taken the step in question recovers nothing — even if a hypothetical claim would have been worth a great deal.
Perry v Raleys has changed the shape of settlement discussions in solicitor negligence claims. Defendant insurers routinely test the claimant's evidence at stage one before engaging with quantum. Contemporaneous documents, attendance notes and the claimant's actual conduct at the time carry disproportionate weight. If the paper trail suggests the claimant would not have pursued the opportunity, the claim can fail entirely at stage one and never reach a percentage discussion.
For claims against solicitors' PI insurers, this is a standard early-stage question. The framework also applies to analogous professions — see the position for accountants, where loss-of-opportunity arguments arise on missed tax elections or forgone reliefs.
The following is a hypothetical illustration only.
A solicitor drafts a share-purchase agreement but fails to include a clause the client had instructed on, giving her an earn-out of up to £100,000 if the acquired business hit revenue targets in year two. The targets are hit. The client sues her former solicitor for £100,000.
Change the facts so that the client's contemporaneous emails show she was ambivalent about the clause and the claim can collapse at stage one, with nothing paid despite a headline loss of £100,000.
See loss of a chance in PI claims for the wider quantification framework, but-for causation in PI claims for the conventional causation test that stage one applies, and SAAMCo for solicitors for the scope-of-duty limit on recoverable loss.
Apex Insurance Brokers Limited is authorised and regulated by the Financial Conduct Authority. Firm reference number 724952. This entry is general information, not advice on any particular policy.