When assessing damages in a professional negligence claim arising out of the conduct of a negligence claim, in which there was a high degree of contributory negligence, the court had to determine in what sum judgment would have been given in the negligence claim, taking into account the contributory negligence, and then make a discount of that figure for the uncertainty that the claim might fail.laimant's appeal from the decision of HH Judge Langan QC on 25 November 2002 dismissing his claim against his former solicitors who had negligently prosecuted his negligence claim against a car driver after a road traffic accident. The claimant ('S') argued that: (i) relying on the advice of the defendant, counsel, the fact that Legal Aid had been granted, and the fact that the driver should have been alert to the possibility that pedestrians would be on the road near a bus stop, the case against the driver was not hopeless; (ii) the judge was wrong to approach the question of lost earnings on a pure lump sum basis, and a multiplicand of over ?15,000 should have been applied; and (iii) the judge had erroneously calculated the deductions to be made from the damages S would have recovered from the driver. It was agreed that a multiplier of 17 would be appropriate.HELD: (1) It could not be said that S's claim was of no real value. The test of whether a claim was worthless was very similar to the test for striking out. The present case would not be struck out as to do so would involve a court in seeking to turn a trial into a paper exercise. (2) The judge's indication of an award put the matter far too low. A figure of £10,000 per year should be adopted. (3) In a case where the degree of contributory negligence was high, there was an obvious danger that if the amounts for contributory negligence and liability were multiplied together, some considerations would be counted twice. A finding of contributory negligence of at least 75 per cent was inevitable. There was a 40 per cent chance of recovery on the basis that it would be a very difficult case for S to win. The result could be tested by asking what, taking into account all the factors, was the right percentage at which to estimate the value of the claim. This was a case of more than negligible value, but which would be extremely difficult to win. The value of the overall claim was 10 per cent of its quantum value, which was the same as 40 per cent of 25 per cent.Appeal allowed.

[2003] EWCA Civ 1189

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