WHAT’S THE DIFFERENCE BETWEEN A COMMERCIAL SOLICITOR AND A PROFESSIONAL KICKBOXER? (THERE’S A WHOLE WEBINAR ABOUT THIS…)

What is the difference between a solicitor and a professional kickboxer? There are many answers to this – and I am certain that I am going to receive some interesting responses on social media.  However, whatever the differences are, there are some similarities. The similarities I want to concentrate upon here relate to claims for loss of earnings should a solicitor or sportsperson be injured at a certain stage in their career – that is a stage where the future career and earnings pattern are not clear.  It is possible for the court to assess damages on a loss of chance basis, based on an assessment of a number of possible outcomes in a claimant’s future career.  Here we look at two cases where the courts considered this issue.

THE KICKBOXER AND LOSS OF CHANCE

In  Langford v Hebran & Anor [2001] EWCA Civ 361 the Court of Appeal refused to allow an appeal against a decision awarding damages for future loss of earnings to a professional kickboxer.  The claimant was starting on a professional career having been a successful amateur.  The crucial thing was that the judge took a “percentage” approach to the chances of success that the claimant had as a kickboxer and the subsequent earnings.

THE JUDGMENT AT FIRST INSTANCE

  1. The claim for loss of earnings was based on a report from a forensic accountant, Mr. Faull, and evidence from a number of witnesses as to the Claimant’s skills as a kick-boxer and how his career might have developed but for the accident.
  2. Mr. Faull first calculated what he called the basic claim. This assumed that the Claimant’s fighting career would last until he was 36. During that time he would work for twenty-six weeks as a bricklayer and have five fights (three in the UK and two in the US) each year. When his fighting career was over he would work full time as a bricklayer until he was 60. He would continue to hold thirty training classes a year until he was 60.
  3. Mr. Faull then calculated four alternative scenarios, based upon escalating success in the Claimant’s fighting career. The first assumed that he would win at least one national or European title which would enhance his income from training after his fighting career. The second assumed that after gaining such a title he would move to the U.S. where he would win state or other titles but not become world champion. The third assumed that, having achieved that success, he would become world champion for one year. Both these scenarios would bring enhanced earnings from fights. The fourth assumed that after becoming world champion for two years the Claimant would remain in the U.S. working as a professional instructor earning US$350,000 per annum. The other three scenarios assumed the same career after his fighting career as the basic claim.
  4. For each of the four alternative scenarios Mr. Faull calculated the extent to which the Claimant’s earnings would exceed the basic claim. Finally, he calculated the amount to be deducted from the claim however it was assessed to reflect the Claimant’s earnings or earning capacity since the accident.
  5. The Claimant invited the Judge to award the basic claim plus a percentage of each of the four alternatives to reflect the lost chance of earning in these ways based upon the approach approved by this court in Doyle -v- Wallace [1998] PIQR Q146.
  6. The Judge essentially accepted the Claimant’s case. He took the basic claim as his starting point without question. After rehearsing the evidence he had heard about the Claimant’s prospects as a kick-boxer, which he described as being “all one way”, he concluded that Mr Faull’s alternative scenarios were “fair and reasonable and in accordance with the evidence”. In the language of Doyle there was a “significant chance” that each of them would occur. He then evaluated the chances as follows: 1 : 20%; 2 : 40%; 3 : 30%; 4 : 10%. The basic claim after taking account of the Claimant’s earnings or earning capacity was: pre-trial loss: £28,974; future loss : £101,651. The additional amounts calculated by the judge for scenarios 1 – 4 were: pre-trial loss: £28,405; future loss £224,719. Hence, the total amounts awarded were £57,379 for past loss and £326,370 for future loss, a grand total of £383,749.

THE COURT OF APPEAL

The Court of Appeal held that the trial judge had taken, broadly, the correct approach – but had been led into some  some arithmetical errors.  Despite this they declined to interfere with the judge’s figure and dismissed the defendant’s appeal.

  1. The difficult question now is whether we should interfere with the judge’s award. Although we have differed from the judge in the approach to take to assessing the chances, we are nonetheless mindful of the inestimable advantage the trial judge has in being able to test the arithmetical results of the evaluation against the indefinable yet vital “feel” for the case and to make adjustments if it does not feel right. The judge will almost certainly have checked his figures in that way. That is an advantage enjoyed by the trial judge to which we must have regard and to which we must pay respect. Bearing in mind that the Court of Appeal should not ordinarily interfere with an assessment of damages unless the figure awarded by the judge is entirely erroneous, we have come to the conclusion that we should not tinker with this award to make such a comparatively small adjustment to it. We accordingly dismiss the appeal.

 

LOSS OF CHANCE IN THE CASE OF A SOLICITOR

In Clarke v Maltby [2010] EWHC 1201 (QB) Mr Justice Owen took a similar approach in relation to the future prospects of a solicitor who had been injured. She had continued working but her prospects of advancement were greatly curtailed by the injuries she had suffered.  The judge accepting that the “loss of chance” approach was appropriate.

THE JUDGMENT

In the light of the evidence from Mr Zeigler Mr Norris QC invited me to adopt the approach to the assessment of future loss approved by the Court of Appeal in Langford v Hebran and Nynex Cable Communications [2001] PIQRQ13. In Langford the trial judge held in relation to the claimant’s career that there were a number of alternative scenarios, based upon the prospective attainment of higher levels of success, each scenario carrying a percentage chance of earnings over and above the ‘basic’ income that he would have received. He awarded damages for future loss of earnings based on the basic income plus the lost chance of higher earnings calculated by reference to the percentage chance of attaining the higher levels of success. Although concluding that the percentages applied by the judge at first instance were illogical on the evidence, the Court of Appeal approved the underlying methodology.
    1. As to the claimant’s career prospects, three scenarios were advanced in the schedule of loss and damage, based on the evidence given by Mr Ziegler; first the base line, which assumed a series of promotions culminating in what she has achieved at Thomas Eggar, namely a fixed share equity partnership in a regional law firm; secondly the same progression as in scenario one until January 2007 when she would have joined a medium size city or central London law firm as a partner; and thirdly the same progression as in scenario two, save that January 2007 she would have joined a large/medium size city or central London law firm as a partner.
    2. It is submitted on her behalf her that there was a 100% chance that she could have maintained the earning capacity of the first scenario until normal retirement age. Mr Norris further submitted that taking the mid-point of the brackets given by Mr Ziegler, there was an 85% chance that she would have achieved partnership in a medium size city or central law firm, and a 30% chance of joining a large/medium size city or central law firm as a partner, and that that provides the evidential basis for the adoption of the ‘additional’ claim formula as the most appropriate manner in which to calculate the claimant’s loss of earnings both past and future.
    3. I am satisfied first that I can rely upon Mr Ziegler’s assessment of her prospects. He was particularly well qualified to make such an assessment, being involved on a day to day basis in placing solicitors in London firms at partnership level. Secondly I am satisfied that the Langford approach is appropriate in the circumstances, and provides a fair way of assessing the claimant’s loss. Her claim to loss of earnings, both past and future will therefore be assessed by assuming a 100% chance of attaining at least the base line scenario, plus 85% of the differential between that scenario and the income that she would have received had she become a partner at a medium sized City or Central London law firm (scenario 2), and 30% of the difference between her prospective earnings under scenario 2 and the income that she would have received had she become a partner in a large/middle sized City or Central London law firm (scenario 3).
    4. It is then necessary to consider in more detail how her career would have progressed how her career would have progressed but for the accident. Would she have achieved a fixed share equity partnership at a firm of the calibre of Thomas Eggar earlier than May 2008, the date upon which she joined that firm? Her pleaded case is that the accident delayed her promotion at Blake Lapthorne, that she would have been promoted to senior solicitor by 1 November 2004 with an increase in salary from £48,226 pa to £55,000 pa, that she would have become a salaried partner at Blake Lapthorne or an equivalent firm from 1 May 2006 at a starting salary of £70,000 pa and that by May 2007 she would have achieved her ceiling as a salaried partner of a regional law firm of £110,000 pa. In other words she contends that her career was set back by about a year as a consequence of the accident.
    5. Furthermore Mr Featherby conceded in his closing submissions that, but for the accident, the claimant would have been promoted to senior solicitor at Blake Lapthorne in May rather than November 2005. But he does not accept that she would have achieved salaried partnership at Blake Lapthorne.
    6. Bearing in mind that the claimant was away from work for six months following the accident and did not return to full time work for a further six months, I consider that it is reasonable to proceed on the basis that the claimant’s career stalled for a period of about a year. But would she have achieved salaried partnership at Blake Lapthorne?
    7. The difficulty in assessing the claimant’s likely progress at Blake Lapthorne is that she had only been with the firm as an associate solicitor for 8 months prior to the accident. The second difficulty is presented by her relationship with Miss Shimmin, who was senior to her in the banking department, and the degree to which it might have affected her progress within the firm. That was the subject upon which the claimant, Miss Shimmin and Mr Treherne, the head of the corporate department, gave extensive evidence. But I do not consider that it is necessary to embark upon an exhaustive analysis of that evidence for the following reason. It was abundantly clear that there was a clash of personality between them and that, to use the colloquialism, the department was not big enough for both. There was a revealing answer from Miss Shimmin in cross-examination when she said in the context of the claimant having been put forward for senior solicitor:
Obviously there were still tensions as to how we could manage our respective ambitions but I fully expected to continue the joust …there were aspects that were difficult and involved us rubbing up against one another. “
  1. In these circumstances I am not persuaded that the claimant would have achieved a partnership at Blake Lapthorne. But had she not done so within what she regarded as a reasonable period consistent with her view of the rate at which her career ought to progress, I have no doubt that she would have moved on, and would have achieved a salaried partnership at a broadly equivalent firm by May 2006. That conclusion is amply borne out by the subsequent moves that she did in fact make.
  2. What then are the financial consequences of scenario one? First I am satisfied that it is reasonable to assume that the claimant would have been promoted to senior solicitor at Blake Lapthorne at a salary of £55,000 pa from 1 November 2004 and that by 1 May 2006 she would have been a salaried partner at a firm of equivalent standing to Blake Lapthorne at a starting salary of £70,000 pa. That is borne out to some extent by the fact that she was promoted to fixed share equity partner at Lester Aldridge, a lesser firm, at a salary of £79,000 in May 2007. I am also satisfied that it is likely that she would have achieved a ceiling as a salaried partner of a regional law firm such as Thomas Eggar of £110,000 p.a. by May 2007. Given that I have concluded that she would probably have made a move to London by the end of 2007, that figure provides the base line for the lost chance calculation.
  3. I turn then to scenarios two and three. Mr Zeigler gave a salary ranges of £100,000 – £230,000 and £130,000 – £260,000 respectively for scenarios 2 and 3. I note that Mr Zeigler gave evidence that he expected the claimant to have been at the higher end of the range, but some allowance must be made for contingencies not taken into account in the Ogden tables, such as the fluctuation in partnership share of profits due to fluctuations in the market for legal services. In that context I bear in mind the evidence from Mr Treherne that for the last financial year a full equity partner’s share at Blake Lapthorne was £65000 reflecting the effect of the recession. Balancing those considerations as best one can I consider that it is reasonable to work to a figure of £130,000 for scenario two, and £180,000 for scenario three.

THE WEBINAR

On the 4th December 2020 I am looking at theses issues in a lot more detail and presenting a webinar “Claims for loss of earnings: the self-employed, the sportsperson and the entertainer”.  This deals with the legal principles, and cases, where a claimant is self-employed or has an uncertain career path, typical of those involved in sports and entertainment.

 

This webinar looks at the particular difficulties of acting for self-employed people who suffer loss of earnings due to injury, focussing on:

  • The particular problems of the self-employed claimant
  • The injured business owner
  • The effect of a limited company
  • Calculating net loss
  • Pension losses and the self-employed claimant

The webinar then goes on to look at particular issues relating to claiming losses in cases where the injured claimant earns, or hopes to earn, a living through sports and entertainment,  looking at cases where damages have been awarded and when a claim for “loss of chance” has been found to be appropriate.

Those attending the webinar will also be sent a set of useful links to relevant cases and articles on this topic together with a helpful “loss of earnings” questionnaire.

Booking details are available here.