Pursuing a claim for loss of chance will mean a number of factors will be taken into account in order to assess that loss of chance. Many questions have to be asked without forensically investigating the underlying facts themselves. Take Theirry Henry’s handball incident which the referee failed to detect leading to France qualifying for the 2010 FIFA World Cup at Ireland’s expense. Say Ireland wanted to make a claim against the referee for negligence for the loss of chance to qualify for the 2010 FIFA World Cup. Had Henry not illegally handled the ball leading to Gallas’s match-winning goal, would Ireland have qualified? Would France have scored some other way instead? Shouldn’t Ireland have equalised in any event? What would have happened if it went to penalties? What if a replay had been ordered? Who would have won that? These are all the types of questions which must be taken into account to assess opportunity costs.

So when Mr Waraich and his family sued Ansari Solicitors for failing to sue another firm of solicitors (Khan’s) for failing to proceed an application for his family’s indefinite leave to remain in the UK in turn causing them to lose the chance of obtaining British nationality, Ansari Solicitors quite rightly had a number of questions to raise in its defence. These questions were necessary for Mr Waraich and his family to satisfactory answer to prove their case, especially in circumstances in which they were seeking approximately £820,000 plus their costs. The £820,000 can be broken down into application to Home Office costs, loss of earnings, the loss of capacity to obtain finance, losses associated with the second claimant’s bankruptcy, loss of benefits and stress. Having had conduct of Ansari Solicitors’ defence when Mr Wariach brought the action, I can say the alleged losses invoked immediate scepticism.

Ansari Solicitors admitted breach of duty to the Waraichs by failing to properly advise that a claim against Khan’s should be issued before expiry of the limitation period. The case therefore became all about causation, meaning the loss of chance factors could be explored in detail at trial. In determining whether the Waraich family had actually suffered any loss, a plethora of questions had to be asked as His Honour Judge Pearce recognised at paragraphs 13 – 16 of his judgment. Had they been properly advised, would they have commenced proceedings? Would they have obtained a settlement or won at trial? If so, when would that resolution have been achieved?

To answer these questions a degree of forensic analysis became inevitable, as the Judge recognised, because a number of further sub-questions had to be asked. Namely, what was Khan’s duty of care? What instructions would they have given to Khan’s? What loss really flows from their failure to obtain further leave to remain? The Judge concluded that, after considering these questions and their possible answers, the Waraich family may have made a partial recovery at trial but that is in the context of an opportunistic claim with an assertion of loss of earnings “made dishonestly”. Any benefit to the Waraich family by bringing the claim against Khan’s would have been disproportionate to irrecoverable costs or an adverse costs order being made against then, meaning on the whole the underlying claim had no value.

The case re-affirms the Supreme Court’s decision earlier in the year in Perry (Respondent) v Raleys Solicitors (Appellant) [2019] UKSC 5 that while claims for loss of opportunity should not require holding a trial within a trial there will be a degree of forensic investigation which cannot be escaped. It also confirms the position that the loss of chance must be honest – the inability to obtain a dishonest resolution may be a loss of chance but it should not be capable of being remedied by a further action. When a claimant is able to overcome and answer affirmatively and honestly the questions which will be raised a claim for loss of chance remains able to succeed. The judgment can be found here.

If you have any questions, would like to discuss this article, or are seeking legal advice, please contact Alex Delin in our Dispute Resolution team.