Issues of causation which depend on what a third party would have done absent negligence, are generally to be assessed on the loss of a chance basis. Does this remain true, however, when that third party gives evidence at the trial?
The claimant, a property development company, entered into a joint venture with another company (“Mortar”) in respect of a site in Nottingham. The defendant solicitors negligently failed to advise the claimant that the terms of the deal deprived it of any profit from a part of the development. The defendant summonsed Mortar’s director to give evidence to the effect that Mortar would not have agreed to share such profit with the claimant even if the claimant had sought such an agreement. The defendant then invited the judge to determine the issue of what Mortar would have done on the balance of probabilities. Freedman J declined to do so, assessing the claimant’s loss on the loss of a chance basis instead and awarding the claimant 65% of the profit it sought.
Francis Bacon acted for the successful claimant.
The full judgment can be found here.