Court of Appeal

Published May 14, 2008

Whitehead and Another v Hibbert Pownall & Newton (a Firm)

Before Lord Justice Laws, Lord Justice Rix and Lord Justice Rimer

Judgment April 4, 2008

Where solicitors had negligently failed to prosecute a claim for damages for clinical negligence on behalf of a mother in respect of future losses for a wrongful birth, those losses were curtailed by the death of the mother; the solicitors were not liable in a subsequent claim for professional negligence brought on behalf of the mother’s estate for what amounted to a windfall in that, had her claim been brought to a successful conclusion before her death, the recoverable damages would have not have been curtailed by her death but would have extended to cover the costs of care into the future.

The Court of Appeal so held allowing the appeal of the defendant, Hibbert Pownall & Newton, formerly a firm of solicitors in Ashton-under-Lyne, and dismissing the cross-appeal of the first claimant, Eric Whitehead, suing on his own behalf and as administrator of the estate of Paula McLeish, deceased, from Mr Justice Griffith Williams who, on May 9, 2007, awarded damages to Mr Whitehead in his capacity as administrator, and dismissed the claim in his personal capacity.

Mr Bernard Livesey, QC and Mr Michael Harrison for the solicitors; Mr Gordon Bebb, QC and Mr James Counsell for Mr Whitehead.

LORD JUSTICE LAWS said that the Court of Appeal in Charles v Hugh James Jones & Jenkins ([2000] 1 WLR 1278, 1290) left open the question what should be done when, after the date of the notional trial, some entirely new event supervened which, if taken into account in the later professional negligence claim, would have enlarged or lowered the damages in comparison with the award which the judge would have made in the original action.

That further question had arisen in the present case. It was important not to take too narrow a view of the guidance afforded by the principle restitutio in integrum so as to leave out of account events relevant to the ascertainment of just compensation, on the ground only that they happened since the notional original trial and so were by definition unknowable at that time.

Lord Justice Rix delivered a judgment concurring in the result; Lord Justice Rimer delivered a concurring judgment.

Solicitors: Davies Arnold Cooper; Donns LLP, Manchester.

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