Coote v Ullstein – professional negligence claim against solicitor and barrister dismissed at court

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22 June 2022

Why is Causation so important in professional negligence claims?

This is an interesting case for many reasons and particularly resonates with me. As a specialist advisor in corporate and commercial disputes, I am regularly instructed to investigate negligence claims against  solicitors and other legal professionals.

It surprises people to learn that just because a legal professional has got something wrong does not necessarily mean that the professional has been negligent.

A professional negligence claim will only be successful in Court if the claimant can demonstrate that the legal matter the professional got wrong resulted in the claimant suffering loss or caused the claimant to suffer loss. Lawyers call this causation.

Causation was a key issue in the recent case of Coote v Ullstein & another. Let’s explore the case a little deeper, what its legal implications are, and what it tells us about Causation.

Case Background

The ins and outs of the claim.

The claimant was pursuing a claim against the manufacturer of the MMR vaccine, alleging that the vaccine had resulted in her child’s epilepsy diagnosis and developmental regression. Therefore, the claimant instructed the defendants, a firm of solicitors and a barrister (Ullstein), to advance her case.

The defendants incorrectly concluded that the ten-year deadline for the claimant to bring her claim to court – the limitation period – ran from the date upon which the vaccine was administered. However, under the relevant legislation, the Consumer Protection Act, the deadline ran from the date upon which the vaccine left the factory.

So, what did this mean for the claimant? It meant she was out of time for bringing her claim against the vaccine manufacturer.

The claimant, therefore, switched up her opposition, bringing a claim against Ullstein instead. She issued court proceedings against the solicitor and barrister she had prior instructed, holding them responsible for the lost opportunity to take the MMR manufacturer to court.

The Summary Judgment Application

What came of the negligence case?

Unfortunately for the claimant, her claim against the solicitor and barrister was stopped in its tracks because they, the defendants, applied to the court for summary judgment.

Now, a court will grant summary judgment if a claim has no reasonable prospects of success or if there is no other compelling reason the claim should proceed to trial. The aim is to save unnecessary resources being utilised to deal with a case that has poor prospects. It’s safe to say that the outcome of the claimant’s claim did not look good.

To support the defendants’ application for summary judgment, the defendants argued that as the claimant was pursuing her claim against the MMR manufacturer with legal aid funding, in order for her negligence claim against the solicitor and barrister to be successful, she would have to show two things:

  1. With competent advice about the limitation deadline, she still would have issued the claim in time; and
  2. She would have also successfully secured a settlement or a judgment in her favour against the manufacturer.

The defendants also argued that to demonstrate the two points above, the claimant would have to show that the Legal Services Commission (LSC) would have been prepared to fund the claim to get the claimant’s case to court.

It’s important to note that the LSC would not have funded the case if the claimant’s prospects were considered by her legal team to be less than 50%.

The Judge’s Decision

What it all comes down to…

The judge had no difficulty in finding that the claimant would have issued court proceedings had the defendants given the correct advice about the limitation period.

“The real issue in this application is what the Claimant’s prospects of success were in the underlying litigation. Has she lost something of value in the sense of a claim which had a real and substantial prospect of success?”

In answer to his own question, the judge concluded that the claim against the MMR manufacturer had no real prospects of success because the expert medical evidence that the claimant relied on would “Not have stood up to any significant scrutiny,”.

And this is where Causation comes into play. The judge also ruled that, as a result, the claimant would not have received the necessary LSC funding to bring her claim to trial.

The Final Word

Causation is key to your case

Just because a professional makes a mistake does not necessarily mean that their client should bring a professional negligence claim.

The Coote v Ullstein case illustrates why it is of paramount importance to investigate a claim carefully and to focus on the impact of the mistake before bringing court proceedings. The usual rule in litigation is that the unsuccessful party will be ordered to pay the successful party’s costs. Bringing an unsuccessful claim for negligence without crossing the t’s and dotting the i’s can have serious financial consequences.

What does this case tell us, bottom line? It’s essential to conduct the right and proper investigations before jumping the gun to involve the court, and to keep the cost risk in check.

As a Corporate and Commercial Disputes Partner, I deal with cases like this, which involve allegations of negligence and questions about causation, on a daily basis.

This article is for information purposes only and should not be relied upon in place of legal advice.

© Melissa Worth, June 2022

The Dispute Adviser

A legal blog by Melissa Worth
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