The claimant, a vet, was injured in an RTA in 1982. In 1996 the action was struck out for want of prosecution even though liability had been admitted. In 2002 the claimant commenced proceedings against his former solicitors who admitted liability. In 1983 it had been discovered that, in addition to more obvious injuries, the claimant had suffered what was for many years thought to have been a false traumatic aneurysm.

Since that date, the claimant had not worked, or had not worked in the same way, as he had done prior to the accident. The claimant’s research had satisfied him that surgery to correct the false aneurysm carried with it a significant risk of death or stroke and he had refused to have the operation.

The defendants said that he had behaved unreasonably as the risk was low and that in refusing surgery he was failing to mitigate his loss. In August 2004 a further scan showed that he did not have a false aneurysm and as a result he did not require surgery and could have worked in exactly the same way as he had worked before the accident.

The joint experts in the new proceedings said that, if they had been instructed in relation to the original proceedings, the scan which they performed in 2004 would have been performed in 1996 and therefore the original trial judge would have been aware that the claimant was not suffering from the condition.

The Court of Appeal allowed an appeal by the claimant holding that, where evidence became available for the first time after the date of the original trial in an action seeking to assess damages for a loss of chance, unless the evidence related to some entirely new matter, which could not have been known about at the date of the original trial, the facts as they had turned out should be taken into account by the trial Judge.

The scan and opinion produced in 2004, and the fact that it would probably have been available at the date of the notional trial, had a material influence on the question whether the claimant stood a good chance of convincing a Judge in 1996 that he was acting reasonably. The evidence ought to be admissible on the basis that it was better not to speculate where hindsight could lead to a more accurate assessment of what a claimant had lost.

In assessing damages, in relation to earnings between 1982 and 2004, the claimant was to be treated as having had the false aneurysm diagnosed up until that date and there would be no deduction for any failure to mitigate.

Partial waiver of privilege does not open floodgates

In a commercial case, the claimant disclosed an attendance note, instructions to counsel and other documents that were privileged. The defendants said the claimant had waived privilege because of the disclose of documents and therefore sought disclosure of other documents.

However the court held that, where a party waived legal professional privilege by disclosing advice given in relation to one transaction, fairness did not require that the court should see all advice relating to the dispute within the relevant period.

Fulham Leisure Holdings Limited -v- Nicholson Graham and Jones. Chancery Division, 14 February 2006, Times Law Reports.

Another attempt to resile from admission

The claimant suffered a back injury while pushing a patient in a bed. Prior to issue the NHSLA admitted liability. The defence sought to withdraw from the admission. Thereafter the defendants did nothing. No application was ever made to the court and no evidence was ever produced to support the grounds for seeking to withdrawn the admission.

At trial, the claimant argued that the pre-proceedings admission should stand in the absence of any application by the defendants. The defendants accepted that they needed to make an application but failed to do so until requested by the Judge. The Judge then refused the defendants application.

The Judge was heavily influenced by the reasoning of Mr Justice Sumner in Basildon and Thurrock University NHS Trust -v- Braybrook (7th October 2004), going through the factors the court has to look at in applying the overriding objective. There was no mention, however, of the recent decision in Sowerby -v- Charlton.