It is now well established that the ‘loss of chance’ approach to assessing damages applies where what the claimant has lost depends on the hypothetical acts of a third party. For instance, in an action against solicitors who have negligently allowed a claim to be struck out, what the claimant has lost depends on what the court in the underlying case would have decided.
In such cases, so long as the claimant can prove it lost a substantial chance of obtaining some benefit (here, an award of damages in the underlying case) the court will assess the value of the chance lost on a percentage basis. The claimant need not prove its loss on a normal ‘balance of probabilities’ test.
