Thomas v Hugh James Ford Simey Solicitors, Court of Appeal - Civil Division, September 04, 2017, [2017] EWCA Civ 1303

Issuing Organization:Civil Division
Actores:Thomas v Hugh James Ford Simey Solicitors
Resolution Date:September 04, 2017

Case No: B2/2016/0488

Neutral Citation Number: [2017] EWCA Civ 1303


ON APPEAL FROM Leeds Combined Court Centre

Mr Recorder Cameron


Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 04/09/2017





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Jonathan Watt-Pringle QC (instructed by Mellor Hargreaves Limited) for the Appellant

Michael Pooles QC & Matthew Jackson (instructed by DAC Beachcroft LLP) for the Respondents

Hearing date: Thursday 27th July 2017

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JudgmentLord Justice Jackson:

  1. This judgment is in six parts, namely:

    Part 1 - Introduction

  2. This is an appeal by a claimant against the dismissal of his action against former solicitors for professional negligence. The point of principle which arises is whether solicitors acting in a high volume, fixed costs scheme for low value personal injury cases, are under a duty to advise about heads of claim which the client has said he does not wish to pursue and for which he says that he cannot provide supporting evidence.

  3. The claimant in the litigation and appellant in this court is Graham Thomas. The defendants are Hugh James Ford Simey.

  4. In the course of this judgment I shall use the abbreviation ``C'' for claimants in general.

  5. After these introductory remarks, I must now turn to the facts.

    Part 2 - The Facts

  6. Miners working in the coal industry use vibratory tools. As a result many of them develop Vibration White Finger (``VWF''). Symptoms of this condition are numbness, change of colour in the fingers and loss of manual dexterity. Miners who develop this condition are entitled to claim damages against their employers for breach of statutory duty and/or negligence. Such claims are of modest value and, if litigated, most would proceed in the fast track. Such claims are not currently subject to the fixed costs regime in CPR Part 45, nor are they subject to costs budgeting.

  7. In 1999 the Department of Trade and Industry (``DTI'') set up a scheme for handling miners' claims for VWF expeditiously and at modest cost. The scheme was the called the Claim Handling Arrangement (``CHA''). It was subject to many modifications and improvements over the years.

  8. During the relevant period, namely March 2000 to January 2001, the CHA worked as follows. The claimant completed a questionnaire and attended for a medical examination. The examining doctor produced a report known as ``MAP 1''. The DTI's claims handlers, known as ``IRISC'', considered the documents and, if appropriate, made an offer of general damages in respect of (a) pain, suffering and loss of amenity and (b) handicap on the labour market. C might (a) accept that offer or (b) pursue a claim for special damages in respect of the actual or notional cost of employing others to assist with domestic tasks. That was called a services claim. If C pursued a services claim, then (a) IRISC would make an 80% interim payment; (b) C would fill in a questionnaire and so would his helpers; (c) C would submit to a further medical examination, resulting in a ``MAP 2'' report (to assess co-morbidity); (d) a representative of IRISC would telephone the named helpers and enquire whether they had given the help alleged.

  9. The CHA provided a tariff for general damages related to the level of disability, as revealed by the MAP 1 report. A separate document identified the services for which C could claim, again dependent upon the level of disability. That document set out a tariff of special damages in respect of each service which C received from others.

  10. At the end of each case IRISC paid costs to C's solicitors, as specified in the CHA. These costs were set at a modest level. In the present case they amounted to £607. The costs payable under the CHA are substantially less than the costs payable for a normal fast track case of similar complexity settled before issue of proceedings.

  11. Let me now turn to the claimant's position. He was born in 1957 and lived in Glamorgan. He worked as a coal miner from 1974 to 1991.

  12. In 1987 the claimant suffered an accident at work, as a result of which he lost a finger. He instructed the defendant solicitors to make a claim against the Coal Board for damages in respect of that injury. The defendants duly did so. The Coal Board settled that claim for £6,000. The claimant makes no complaint about that settlement.

  13. In early 2000 it was common knowledge in Glamorgan that miners were making claims for VWF. In March 2000, the claimant instructed the defendants to act as his solicitors in making a claim under the CHA. On 17th March 2000, he had a 42 minute meeting with Ms Barbara Kinsey, a solicitor employed by that firm. Ms Kinsey explained the scheme to the claimant. The claimant filled in the appropriate questionnaire and submitted to a medical examination. Dr Care, the examining doctor, assessed the claimant as having VWF with the following sensorineural scores:

    Left Hand - 2Sn (early).

    Right Hand - 2Sn (late).

    The claimant's score for vascular staging was 0 on both hands.

  14. A person with that level of disability was entitled to (a) general damages and (b) special damages in respect of the following services, if other people were helping him with those tasks: decorating, DIY, gardening, car washing and car maintenance.

  15. On 2nd January 2001 IRISC offered £10,373.00 in respect of general damages. That does not give rise to any issue in this appeal. It was an adequate offer in respect of general damages under the CHA tariff.

  16. On 15th January 2001, the defendants sent a letter of advice to the claimant, which appears to have been in their standard form. The material part of that letter reads as follows:

    ``Special Damages

    The present offer does not also take into account special damages, that is damages to compensate you for other potential losses that you may have suffered. Examples of when compensation is paid for special damages is where you are unable to carry out tasks such as gardening, DIY, home decoration, window cleaning, car maintenance, and car washing. These are only examples, there may be others.

    If you are not able to carry out any or all these tasks because of your VWF condition, then we will need to consider making an additional claim for compensation. You...

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