BOYLE V THOMPSONS SOLICITORS [2012] EWHC 36
FACTS:-
The Claimant made a claim to the Criminal Injuries Compensation Authority after an assault by her former partner in October 2001, following a series of earlier assaults. On the 30th January 2003, the CICA made an award of £5150. She appealed but her appeal was rejected by the Criminal Injuries Compensation Appeals Panel.
There had been a report from her treating psychiatrist stating that the Claimant suffered from Post Traumatic Stress Disorder and that this was permanent. However an independent expert psychologist took a different view and suggested that the PTSD was not permanent and could not solely be attributed to the assault.
The Claimant sued her solicitors, alleging that the conflict between the Claimant’s treating psychiatrist and the independent psychologist should have been resolved in her favour. If that had happened, she would have recovered substantially more by way of compensation. The Defendant solicitors said in reply that they had already gone back to the psychologist twice to try and get her to change her opinion.
JUDGEMENT:-
Mr Justice Coulson considered the operation of the 2001 CICA Scheme. He said that in his view, the disclosure obligation on the part of an Applicant’s solicitors was very different to that in an ordinary civil litigation case. This meant that all medical opinions needed to be disclosed. Coulson J felt that the terms of the CICA Scheme overrode any questions of privilege.
He then considered the Claimant’s personal history. The problem with her CICA claim is that not all of the violence against her could form the basis of that claim, since the earlier incidents had not given rise to any criminal charges or police statement.
Coulson J considered the report of the psychologist and found that this was clear. The Claimant’s former solicitors, the Defendant had tried to get the psychologist to change her views but she was not prepared to do so. Coulson J expressed concerns about the views of the treating psychiatrist. Both the psychiatrist and the psychologist had produced new reports for the purposes of the professional negligence proceedings, but neither were called to give evidence at trial. The psychiatrist now said that in his view that the PTSD was the subject of one single event in 2001 inflicted by her ex partner, and Coulson J was concerned about accepting the accuracy of that statement. The psychologist had changed her position, but Coulson J said that this was not based on any new information or source documentation. Furthermore the psychologist had not endorsed the entirety of the psychiatrist’s report.
In relation to breach of duty, Coulson J considered the following cases.
Coulson J did not think that the Defendant solicitors were obliged to go back to the psychologist in order to try again to “beef up” her evidence in relation to the permanent nature of PTSD and the claim that it could be attributed solely to the assault in October 2001. The solicitor dealing with the case had no reason to think that the psychologist could offer a different opinion, nor was it likely that she would have done so. There was also a risk that the psychologist might offer a negative opinion. In fact an attempt was made to get the psychologist to change her view.
In relation to the questions that were put to the psychologist, Coulson J felt that these were sufficiently clear. If the psychologist had said that she wanted to examine the Claimant again, that was a matter for her say. The sending out of her report to the CICA was not negligent and a further report from the psychiatrist would have served no purpose. There was no negligence on the part of the Defendant.
Coulson J would deal with causation and quantum. He would adopt the test promulgated in Channon v Lindley Johnstone [2002] EWCA Civ 353 and Allied Maple Group v Simmons and Simmons [1995] 1 WLR 1602 which focussed on two elements, what better terms might have been obtained but for the negligence, and what were the chances of obtaining them. Coulson J would also have regard to the threshold test set in Browning v Bachers [2004] EWCA Civ 753 i.e that he had a real and substantial rather than a negligible chance of success.
Even if there was a breach of duty, Coulson J said that he did not think that such a breach would have caused any loss. The loss of earnings had been made late in the day, and might well have been regarded by the CICAP as opportunistic. The report from the psychologist in 2007 remained equivocal on the issue of causation. It was always going to be very difficult for the Claimant to say that everything turned on one assault. Therefore the claim would fail on causation.
Coulson went over the various heads of claim, but in his view it would be unrealistic to say that the chance of an improved outcome would be higher than 25% of the likely damages. That produced a figure of £16,134.75.
FACTS:-
The Claimant made a claim to the Criminal Injuries Compensation Authority after an assault by her former partner in October 2001, following a series of earlier assaults. On the 30th January 2003, the CICA made an award of £5150. She appealed but her appeal was rejected by the Criminal Injuries Compensation Appeals Panel.
There had been a report from her treating psychiatrist stating that the Claimant suffered from Post Traumatic Stress Disorder and that this was permanent. However an independent expert psychologist took a different view and suggested that the PTSD was not permanent and could not solely be attributed to the assault.
The Claimant sued her solicitors, alleging that the conflict between the Claimant’s treating psychiatrist and the independent psychologist should have been resolved in her favour. If that had happened, she would have recovered substantially more by way of compensation. The Defendant solicitors said in reply that they had already gone back to the psychologist twice to try and get her to change her opinion.
JUDGEMENT:-
Mr Justice Coulson considered the operation of the 2001 CICA Scheme. He said that in his view, the disclosure obligation on the part of an Applicant’s solicitors was very different to that in an ordinary civil litigation case. This meant that all medical opinions needed to be disclosed. Coulson J felt that the terms of the CICA Scheme overrode any questions of privilege.
He then considered the Claimant’s personal history. The problem with her CICA claim is that not all of the violence against her could form the basis of that claim, since the earlier incidents had not given rise to any criminal charges or police statement.
Coulson J considered the report of the psychologist and found that this was clear. The Claimant’s former solicitors, the Defendant had tried to get the psychologist to change her views but she was not prepared to do so. Coulson J expressed concerns about the views of the treating psychiatrist. Both the psychiatrist and the psychologist had produced new reports for the purposes of the professional negligence proceedings, but neither were called to give evidence at trial. The psychiatrist now said that in his view that the PTSD was the subject of one single event in 2001 inflicted by her ex partner, and Coulson J was concerned about accepting the accuracy of that statement. The psychologist had changed her position, but Coulson J said that this was not based on any new information or source documentation. Furthermore the psychologist had not endorsed the entirety of the psychiatrist’s report.
In relation to breach of duty, Coulson J considered the following cases.
- Midland Bank v Hett. Stubbs and Kemp [1979] Ch 384
- Matrix Securities Limited v Theodore Goddard [1998] PNLR 290
- Balamoan v Holden & Co. [1999] NLJ Prac. 898
- Haywards v Wellers [1976] QB 446 CA
- Saif Ali v Sydney Mitchell [1980] AC 198
- Argyll v Beuselinck [1972] 2 Lloyd’s LR 172
Coulson J did not think that the Defendant solicitors were obliged to go back to the psychologist in order to try again to “beef up” her evidence in relation to the permanent nature of PTSD and the claim that it could be attributed solely to the assault in October 2001. The solicitor dealing with the case had no reason to think that the psychologist could offer a different opinion, nor was it likely that she would have done so. There was also a risk that the psychologist might offer a negative opinion. In fact an attempt was made to get the psychologist to change her view.
In relation to the questions that were put to the psychologist, Coulson J felt that these were sufficiently clear. If the psychologist had said that she wanted to examine the Claimant again, that was a matter for her say. The sending out of her report to the CICA was not negligent and a further report from the psychiatrist would have served no purpose. There was no negligence on the part of the Defendant.
Coulson J would deal with causation and quantum. He would adopt the test promulgated in Channon v Lindley Johnstone [2002] EWCA Civ 353 and Allied Maple Group v Simmons and Simmons [1995] 1 WLR 1602 which focussed on two elements, what better terms might have been obtained but for the negligence, and what were the chances of obtaining them. Coulson J would also have regard to the threshold test set in Browning v Bachers [2004] EWCA Civ 753 i.e that he had a real and substantial rather than a negligible chance of success.
Even if there was a breach of duty, Coulson J said that he did not think that such a breach would have caused any loss. The loss of earnings had been made late in the day, and might well have been regarded by the CICAP as opportunistic. The report from the psychologist in 2007 remained equivocal on the issue of causation. It was always going to be very difficult for the Claimant to say that everything turned on one assault. Therefore the claim would fail on causation.
Coulson went over the various heads of claim, but in his view it would be unrealistic to say that the chance of an improved outcome would be higher than 25% of the likely damages. That produced a figure of £16,134.75.