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19 December 2014 0 Comments
Posted in Employment, Opinion

How (not) to sue your lawyer…

Author headshot image Posted by , Partner

The High Court decision in Chweidan v Mischcon de Reya Solicitors is quite an interesting case on its facts as well as restating the test for calculating damages for loss of a chance.

The Claimant was made redundant from JP Morgan and brought claims alleging unfair dismissal, direct age and disability discrimination, and disability related discrimination, instructing Mishcon de Reya. His claims for direct disability discrimination and unfair dismissal were successful and he was awarded around £550,000. However the discrimination finding was overturned on appeal leaving him with around £68,000 for his unfair dismissal claim; and a bill of costs exceeding this. In a desperate attempt to recover some losses, he sued Mishcons for professional negligence…

He claimed that they had failed to advise him on bringing a claim for failure to make reasonable adjustments. They admitted that they had not advised him on lodging a cross appeal regarding the age discrimination claim to the EAT in time; but argued that this ground had no more than a negligible prospect of success and so there was hardly any lost opportunity of any value.

The reasonable adjustments claim was dismissed by the High Court on the basis that the Claimant had not raised it in his instructions and nor was it flagged up by Counsel; so that if there was any error it was not so blatant as to amount to negligence. As far as calculation of damages for the admitted breach of duty in respect of the failure to cross appeal, the Court held that the Claimant would have to prove that this claim had a real and substantial prospect of success. If the Court decided that the prospects were more than negligible, it would then have to make a realistic assessment of the Claimant’s prospects of success had the claim originally been brought, and fought. The Court would then have to assess the likely award which would have been made had this action been successfully run in the original Tribunal and the potential damages awarded. In this case the Judge considered the Claimant’s chance of winning the age discrimination cross appeal was 50%, with a 33% chance on the underlying claim following the appeal. This gave an overall chance of success of just under 1/6th which the Judge increased to 18% to take account of the possibility of settlement. This produced an award of damages of £64,363 – not enough to pay his legal costs associated with the original proceedings…

This legal update is provided for general information purposes only and should not be applied to specific circumstances without prior consultation with us.

For further details on any of the issues covered in this update please contact Gemma Ospedale, Partner in Employment on 020 7583 2222.

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