Loss of a chance: Stephen Bailey appears for defendant firm of solicitors

May 2, 2019

Loss of a chance: Stephen Bailey appears for defendant firm of solicitors ordered to pay only nominal damages in respect of the alleged loss of a chance to  bring underlying claim

Judgment was handed down last week in Waraich & Anor v Ansari Solicitors (a firm) [2019] EWHC 1038 (Comm) by HHJ Pearce, sitting as a deputy High Court Judge in the Circuit Commercial Court in Manchester, in one of the first cases applying the recent decision of the Supreme Court in Perry v Raleys Solicitors [2019] UKSC 5. The judge concluded that, whilst the underlying claim would have resulted in an award of some damages at trial, that would have been in the context of a much larger, speculative and partly dishonest claim which would have failed, so that the claimants had lost nothing of value. The decision provides welcome confirmation that the way in which an underlying claim would have been advanced by a particular claimant is relevant to the assessment of its value, and in particular that the court can take account of the costs risk to a claimant in that respect.

Ansari had acted for Mr Waraich in respect of a potential claim against another firm of solicitors, Khan Solicitors, which had submitted an application for indefinite leave to remain on behalf of Mr Wariach and his family in 2006. The claimants alleged that Khan’s advice about that application had been negligent and had resulted in them becoming overstayers in the UK and losing their accrued years of continuous lawful residence, asserting that they would have obtained indefinite leave to remain earlier than they had, but for that negligence. They claimed just over £820,000 in damages, including for loss of earnings on the part of Mr Waraich and for the loss of three businesses on the part of Mrs Waraich. The judge concluded that Mr Waraich was a “deeply unsatisfactory witness” who had advanced the loss of earnings claim dishonestly. Mrs Waraich provided very little assistance to resolving the issues in the case, because she was unable to deal with the detail of either the family’s immigration applications or her own financial affairs, which she said she had largely left to her husband.

Whilst the judge was satisfied that Khan had given negligent advice, the claimants had failed to identify a clear route by which they would have obtained leave to remain any earlier than they had. Only one small part of the potential claim against Khan (for the extra costs of an application for ILR, when an application for an extension to a work permit and attendant further leave to remain should have been made instead) had any real prospect of success. Overall, the underlying claim had no value because the claimants would have pursued an unrealistic and partly dishonest claim to trial, so that any damages award would have been “swallowed by their own irrecoverable costs or conceivably an adverse costs order”. Read the full judgment here.

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