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Where damages in a professional negligence claim are based on what would have been awarded at an earlier notional trial, questions can arise as to whether information which subsequently becomes known should be taken into account. The recent Court of Appeal decision in Hibbert Pownall Newton (HPN) v Whitehead & McLeish provides guidance. The court also considered whether a duty of care was owed by solicitors to a third party who had not retained the firm.

Paula McLeish gave birth in August 1986 to a son, David, who suffers from spina bifida. She brought a claim against the Health Authority for failing to diagnose the risks. Proceedings were issued in 1989, but in March 1995, when the action had still not been set down for trial, Paula committed suicide. The health authority, who had been responsible for some delay, agreed to an adjournment sine die. Eventually, the father, Eric Whitehead, was substituted as administrator of Paula’s estate and continued the action on behalf of her estate. However, following Paula’s suicide, the future costs of caring for David were no longer losses which Paula would incur, and which the estate could recover from the Health Authority; thus the value of Paula’s claim had been significantly curtailed. In January 1999, a settlement was reached, at a level of £20,000 plus costs.

Subsequently, the estate issued proceedings against the solicitors, HPN, and the barrister instructed, Barrie Searle, alleging that HPN failed to progress Paula’s claim to a trial before her suicide, and that both negligently advised settlement at an undervalue. The father and son also alleged that HPN and the barrister owed them duties of care in respect of their personal claims against the Health Authority, notwithstanding that HPN’s retainer was with Paula/the estate.

At first instance, the judge held that the claim should have been tried before Paula’s suicide and awarded damages against HPN based on the value of the claim at the notional date of trial, albeit vastly reduced from the damages claimed. He also concluded that the settlement was at a £15,000 undervalue but did not enter judgment on that ground, given the damages award on the delay claim. The judge also held that no duty of care was owed either to the father or the son.

HPN and the father both appealed. The solicitors contended that the damages award on the delay claim was in fact a windfall to the estate, as the effect was to allow recovery of future losses which Paula/her estate would no longer incur. The father appealed the finding that no duty of care was owed to him personally. The solicitors’ appeal was successful and the father’s appeal failed.

On the first point, the Court of Appeal accepted HPN’s submissions that:

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