JUDGE GRANTS SUMMARY JUDGMENT AGAINST CLAIMANT IN ACTION AGAINST SOLICITORS AND LEADING COUNSEL
In Coote -v- Ullstein  EWHC 606 (QB) His Honour Judge Gosnell (sitting as a judge of the High Court) granted the defendants’ applications for summary judgment in relation to a professional negligence claim being brought against them. The judge held that the claimant could not establish she had lost anything of value.
“My own view remains, however, that on an objective assessment of the expert evidence the Claimant had no real prospect of success against SKB for the reasons outlined above. She therefore has no real prospects of success in this litigation because the loss of a chance on my assessment is less than 10% by some distance.”
The claimant had pursued an action against the manufacturers of the MMR vaccine, alleging that it had caused her epilepsy. That action became statute barred and she brought this action against her former solicitors and Leading Counsel.
THE REASON THAT THE ACTION BECAME STATUTE BARRED
The judge explained how the limitation period came to be missed.
“It would appear (and I put it this way as it is not conceded by the Defendants in the professional negligence litigation) that the Defendants had believed that the ten year limitation period under the Consumer Protection Act 1987 ran from the date that the vaccine had been administered to the patient. It was subsequently discovered that the limitation period ran from the date the vaccine was shipped from the factory, in this case on 14th December 1988. This meant that the writ had been issued out of time and there was no provision to permit the extension of time or any suspension of the limitation period based on the Claimant’s disability. The allegation of negligence in the professional negligence proceedings is therefore that the Defendants failed to advise the Claimant accurately about the limitation period under the Consumer Protection Act 1987 with the result that her claim against SKB was issued out of time and therefore doomed to failure. “
THE DEFENDANTS’ APPLICATION FOR SUMMARY JUDGMENT AND/OR TO STRIKE OUT THIS ACTION
The defendants applied for summary judgment and/or to strike out the claim on the basis that the claimant could not establish she had suffered a loss. She could not prove that had she received correct advice about the limitation period she would have proceeded with her claim to the the point where she would have received damages by way of judgment or settlement. In particular legal aid would not have supported the continuance of the claim, she would not have established causation, none of the allied claims had been settled. Indeed none of the MMR claimants succeeded in their claim.
“Further or alternatively, the Claimant cannot show that she has lost any real and substantial chance of recovering damages as a result of issuing her claim out of time because she had no real prospect of being able to prove defectiveness and/or that her epilepsy and developmental delay had been caused by administration of the MMR vaccine.”
THE DECISION: SUMMARY JUDGMENT FOR THE DEFENDANTS
The judge reviewed the legal principles in considerable detail. He concluded that the defendants should be granted summary judgment.
My assessment of whether the Claimant has a real prospect of success in this claim
93.I am acutely conscious that this is an application for summary judgment and not a trial. I have heard no evidence and will be making no findings of fact. My task is to look at the evidence in the round, including evidence which might in the future be available to the Claimant and decide whether her chances of success in this litigation are real, in that they are more than fanciful. The Defendants jointly submit that the Claimant has no real prospects of success in this litigation because she cannot prove that she has lost anything of value as a consequence of her losing the ability to pursue her claim against SKB due to the Defendants’ alleged negligence. This inevitably changes the focus of the enquiry to what the Claimant’s prospects of success were in the underlying litigation against SKB, if she had been able to issue her claim within the ten year limitation period. This again is not a “trial within a trial” but a broad assessment of what her prospects of success were in the original litigation on the basis of the evidence which she could rely on compared with the evidence which SKB would have been likely to have put before a court.
94.I have set out earlier in this judgment the appropriate legal test for dealing with professional negligence claims against legal advisers where the chance to pursue the claim to its conclusion was lost. First, the Claimant must prove what she would have done if she had received the benefit of competent advice. This must be proved on the balance of probabilities. In this case the allegedly negligent advice happened before the expiry of the limitation period in late 1998. At this point the Claimant had not issued proceedings. She did in fact instruct her solicitors to issue proceedings in January 1999 which is obviously something I can take into account when deciding whether she had a real prospect of proving this aspect of her claim. In my view the Claimant (through her litigation friend), would have no difficulty in proving in this litigation that she would have instructed her solicitors to issue proceedings in time if she had received competent advice about the expiry of the limitation period. The fact that she did in fact do so in the mistaken belief that the proceedings were issued in time is strong evidence to support this. A review of the documentation shows that Mrs Ann Coote has been determined throughout to do everything she can to pursue her daughter’s claim and it is fair to say that she has left no stone unturned in her efforts to prove that her daughter’s disability was caused by the MMR vaccine. I am satisfied that she would have instructed her solicitors to issue proceedings and do everything necessary thereafter to pursue the claim to its conclusion. On my assessment of the law set out above this is all she would have to prove so far as causation is concerned on the balance of probability. All the other issues relate to what third parties may have done and these would be assessed by this court on the basis of the loss of a chance.
95.The real issue in this application is what the Claimant’s prospects of success were in the underlying litigation. Has she lost something of value in the sense of a claim which had a real and substantial prospect of success? Mr Berkley QC appeared to concede that a judicial rule of thumb appears to have arisen that prospects of success of 10% or less are treated as negligible or at least insufficiently substantial to sound in damages. This is based on the judgments in Thomas and Thomas v Albutt  EWHC 2187 (Ch) and Kingsley Napley LLP v Harris  EWHC 901 (QB). I agree with his submission and, although the aetiology of this principle is unclear, it appears to have found some judicial favour.
96.The context in which this claim was being made is important. At one point in time there were approximately two thousand claimants in the MMR Litigation Group who were seeking to make claims against the various manufacturers. The Defendants claim that not one of these claims succeeded at trial and none received a voluntary settlement. One of the main reasons for the collapse of this group litigation was the discrediting of the methodology of the research done by Dr Andrew Wakefield into the connection between the MMR vaccine and autism. By early 2007 no supportive expert evidence had been found to justify the causal link between the MMR vaccine and epilepsy; in fact the reverse was true. Dr Andrew Green and the four consultants who took part in the screening process were all unable to support a causal link generally or in the Claimant’s case more specifically. This changed later in 2007 when Dr Kinsbourne reported that there was a causal link in Rachael’s case. The Claimant’s prospects of success in the original litigation therefore hinge on the chances of a court accepting the expert evidence of Dr Kinsbourne.
97.In order to pursue the claim to trial the Claimant would have had to convince the Legal Services Commission that it had good prospects of success (usually at least 50%). The views of the Legal Services Commission about Dr Kinsbourne’s evidence were expressed in submissions it made to the Funding Review Committee on 2nd May 2007 as follows:
“However I would suggest it remains highly questionable that this line of reasoning will be accepted, given that Dr. Kinsbourne appears to be the first expert in a long line prepared to report favourably for the claimants , and given that to date, medical opinion ( including eminent and respected experts) has weighed very heavily on the side of stating that it was not possible to say that on the balance of probabilities MMR was the cause of the damage. There are a large number of potential causes of this injury and I do not consider it to be a straightforward step to show that one should reasonably exclude the host of common, albeit in these cases unproven causes”
It is fair to record that the Funding Review Committee did extend legal aid until the receipt of the Defence but I suspect the views expressed above might well have resurfaced once expert evidence was served by SKB as it inevitably would have been.