Before: HIS HONOUR JUDGE GOSNELL Between: - and - -

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1 IN THE LEEDS COUNTY COURT Case No: 2YJ87483 The Combined Court Centre, Oxford Row, Leeds Before: HIS HONOUR JUDGE GOSNELL Between: Date: 19 th December 2013 Mr William Sharp - and - - Raleys Solicitors Claimant Defendants Mr Watt-Pringle QC and Mr Elgot (instructed by Mellor Hargreaves) for the Claimant Miss Foster (instructed by Berrymans Lace Mawer) for the Defendant Hearing dates: 2 nd and 3 rd December I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.... HIS HONOUR JUDGE GOSNELL

2 His Honour Judge Gosnell: 1. This claim is made by the Claimant against the Defendant firm of Solicitors for professional negligence. The Claimant was employed as a miner at Nostell and Sharlston Collieries in Yorkshire. He was employed by the National Coal Board which became British Coal from 1962 to During this employment he was exposed to vibratory tools as a consequence of which he alleges he developed Vibration White Finger ( VWF ) a form of Hand Arm Vibration Syndrome ( HAVS ). He instructed the Defendant firm in July 1997 to pursue a claim on his behalf for damages as a result of developing this condition. 2. With the Defendants assistance he made a claim for compensation against his employers under a compensation scheme set up by the Department for Trade and Industry which provided tariff based compensation for people who had developed VWF as a result of exposure whilst employed at British Coal. On 1st June 2000 he agreed to settle his claim against his previous employer for the sum of 9336 plus interest. This sum was paid in settlement of his claim for general damages only. No payment was made in compensation for services required as a consequence of his disability as no such claim had been registered under the scheme. It is the Claimant s case that if the Defendants had properly advised him about the nature of the scheme and the claims which were open to him he would have made a claim for services and could have received 11, under this head. The Defendants claim that the court can infer from the documentation that the Claimant was advised about the right to make a services claim but he chose not to do so. It is the Defendants case that the Claimant would not have made a claim either because he was not suffering from VWF or because he was not prevented from carrying out any of the tasks for which services could be claimed due to VWF. 3. The Scheme In July 1998 the Court of Appeal upheld a decision of the High Court finding British Coal negligent in exposing miners to excessive vibration resulting in them contracting VWF. By this time the Department for Trade and Industry ( DTI ) had taken over responsibility for British Coal and set up a compensation scheme ( the Scheme ) to provide tariff based compensation to miners who had been exposed to vibration and suffered from VWF. The Claimant had used vibratory tools in his employment and was entitled to claim under the Scheme. 4. The Scheme was administered for the DTI by IRISC Claims Management ( IRISC ) in accordance with the terms of a Claims Handling Arrangement ( CHA ) dated 22 nd January 1999 as amended from time to time. The CHA was an agreement between IRISC and firms of Solicitors who belonged to the VWF Litigation Solicitors Group ( VWFLSG ). After the agreement was executed there were continuing negotiations between VWFLSG and the DTI and other mining contractors in relation to the claims as a whole and services claims in particular. Where disputes arose they were either resolved by agreement or determined by the Court. Members of the VWFLSG were kept informed of developments by bulletins from the VWFLSG steering committee. In addition to the CHA there was a Services Agreement of 9 th May 2000 which governed the management of services claims.

3 5. Claims were initially categorised according to whether or not proceedings had been issued and whether or not a medical report had been served. The Claimant s case was a category C claim as neither of the above milestones had been reached. A claimant would first have to submit a questionnaire to IRISC about his occupation and he would be assessed into an occupational group depending on his likely exposure. If he was accepted into a relevant occupational group by IRISC arrangements would then be made for a medical examination in accordance with the Medical Assessment Process in the CHA. The medical report produced by this process became known as MAP1. The report was intended to ascertain whether the Claimant was suffering from VWF and if so his staging on the Stockholm Workshop scale. IRISC was then obliged to make an offer of compensation or to reject the claim with reasons. A claimant could challenge the findings of the MAP1 report but there was no provision in the CHA for IRISC to do so. The CHA agreement provided for compensation for general damages, handicap on the labour market and special damages. 6. The CHA made provision for interim payments where payments were for some reason delayed and initially amounted to 50%, then 80% of IRISC s valuation of British Coal s liability to the Claimant. The CHA also provided for apportionment of claims between British Coal and other employers with IRISC agreeing to attempt to get other employers to agree to the Scheme and if not making payments reflecting their own apportioned responsibility. 7. A further agreement was entered into on 9 th May 2000 ( the Services Agreement ) which set out the agreed approach where services were claimed. The onus was initially on a claimant to establish as a matter of fact that prior to his injury he actually undertook the tasks for which services were claimed and that he no longer undertook those tasks due to his condition. He did this by completing a standard form questionnaire supported by those helpers who provided the services who themselves completed a different standard form questionnaire. It was agreed that once a claim reached a certain level it should be presumed that a claimant could no longer carry out certain tasks but the tasks to which this presumption applied varied according to his staging as determined in the MAP1 report. IRISC were not bound to accept the claim and did conduct telephone interviews with helpers to ensure that services were actually required and being provided. Dubious claims could be referred to the Securities Investigation Department. A further medical examination known as MAP2 would then be arranged which was purely to consider whether the claimant had any co-morbid conditions which would have affected his ability to do the required tasks in any event, and if so, what effect those conditions would have had. A tariff based approach would then be used to calculate the value of the claimant s services claim, depending on the claimant s staging and any deduction to reflect co-morbid conditions after the MAP2 examination. Services claims were initially subject to a pilot scheme but offers of settlement began to be made after the pilot scheme ended from mid 2003 onwards. Many of the claims were not however resolved until 2005 or Mr Sharp s Claim The Claimant instructed the Defendants in about July 1997 and the Defendants notified IRISC of the claim on 18 th July On 23 rd June 1999 IRISC wrote to the Defendants confirming that the Claimant s claim was accepted for further

4 consideration under the terms of the agreement, and his occupation group was agreed at group 1. The Claimant underwent a MAP 1 assessment on 21 st January 2000 by Dr Ryan. He assessed the Claimant s vascular and sensorineural staging on the Stockholm workshop scale as Stage 1V bilaterally ; Stage 2sn ( late ) (right hand) and Stage 3sn ( left hand). The report was sent to IRISC who accepted the report and were therefore bound by it. An offer was eventually made for 9,336 plus interest. It would appear that the Defendants recommended acceptance of this offer which the Claimant did on 1 st June The Law It is not controversial that the Defendants owed a duty of care to the Claimant both in contract and tort. The standard of care required is that of the reasonably competent Solicitor. In Midland Bank v Hett, Stubbs Kemp [1979]Ch 384 Mr Justice Oliver emphasised that a solicitor should not be judged by the standard of a particularly meticulous and conscientious practitioner.the test is what the reasonably competent practitioner would do having regard to the standards normally adopted by his profession. However a solicitor should be judged by the standard of the reasonably competent practitioner specialising in whatever areas of law the Defendant holds himself out to be a specialist as was applied by Douglas Brown J in Green v Collyer Bristow [1999] Lloyds Reports P.N In this case the Defendants hold themselves out to be specialists in Industrial Disease claims and were experienced in both claims for miners and this particular scheme. 12. The correct approach in dealing with a case such as this can be derived from the authorities. In Dixon v Clement Jones Solicitors [2004] EWCA Civ 1005 Lord Justice Rix said: There is no requirement in such a loss of a chance case to fight out a trial within a trial, indeed the authorities show as a whole that that is what should be avoided. It is the prospects and not the hypothetical decision in the lost trial that have to be investigated.. The test is not to find what the original decision of the underlying litigation would have been as if that litigation had been fought out, but to assess what the prospects were. Agreeing, Carnwath LJ observed at [54]: The judge was not trying the action against the accountants. The opportunity for a trial of that had been lost. His view as to what the outcome would have been was strictly irrelevant, except as one stage in the process of deciding the value of the loss opportunity. Lord Justice Simon Brown has given Judgement in two relevant cases on this issue. The first in time was Mount v Barker Austin [1998] PNLR 493 at 510D: (1) The legal burden lies on the plaintiff to prove that in losing the opportunity to pursue his claim he has lost something of value i.e. that his claim had a real and substantial rather than merely a negligible prospect of success. (I say 'negligible' rather than 'speculative' -- the word used in a somewhat different context in Allied Maples Group Ltd v Simmons & Simmons [1995] 1 WLR lest 'speculative' may be thought to include considerations of uncertainty of outcome, considerations which in my judgment ought not to weigh against the plaintiff in the present context, that of struck-out litigation.)

5 (2) The evidential burden lies on the defendants to show that despite their having acted for the plaintiff in the litigation and charged for their services, that litigation was of no value to their client, so that he lost nothing by their negligence in causing it to be struck out. Plainly the burden is heavier in a case where the solicitors have failed to advise their client of the hopelessness of his position. (3) If and insofar as the court may now have greater difficulty in discerning the strength of the plaintiff's original claim than it would have had at the time of the original action, such difficulty should not count against him, but rather against his negligent solicitors. It is quite likely that the delay will have caused such difficulty. (4) If and when the court decides that the plaintiff's chances in the original action were more than merely negligible it will then have to evaluate them. That requires the court to make a realistic assessment of what would have been the plaintiff's prospects of success had the original litigation been fought out. Generally speaking one would expect the court to tend towards a generous assessment given that it was the defendants' negligence which lost the plaintiff the opportunity of succeeding in full or fuller measure. To my mind it is rather at this stage than the earlier stage that the principle established in Armory v Delamirie (1722) 1 Stra 505 comes into play. 13. He developed this further in Sharif v Garrett and Co [2001] EWCA Civ 1269, [2002] 1 WLR 3118: 38 In stating the principles generally applicable to this class of case, I indicated in Mount v Barker Austin [1998] PNLR 493, 510 a two-stage approach. First, the court has to decide whether the claimant has lost something of value or whether on the contrary his prospects of success in the original action were negligible. Secondly, assuming the claimant surmounts this initial hurdle, the court must then make a realistic assessment of what would have been the plaintiff's prospects of success had the original litigation been fought out. 39 With regard to the first stage, the evidential burden rests on the negligent solicitors: they, after all, in the great majority of these cases will have been charging the claimant for their services and failing to advise him that in reality his claim was worthless so that he would be better off simply discontinuing it. The claimant, therefore, should be given the benefit of any doubts as to whether or not his original claim was doomed to inevitable failure. With regard to the second stage, the Armory v Delamirie (1722) 1Str 505 principle comes into play in the sense that the court will tend to assess the claimant's prospects generously given that it was the defendant's negligence which has lost him the chance of succeeding in full or fuller measure. 14. The correct approach would therefore appear to be to firstly determine whether there has in fact been a breach of duty. Secondly, if there has, the court must then ask whether the breach caused or materially contributed to the Claimant s alleged loss. In deciding whether the Claimant would have acted differently if he had received competent advice the court must decide the issue on the balance of probability. Thirdly, the court must decide if the Claimant has lost something of value in the sense that his prospects of success are more than negligible. Fourthly, if the court decides that the Claimant has lost a claim with more than negligible prospects of success it must make a realistic assessment of what those prospects of success were. Finally, the court will need to make an assessment of what the likely value of the claim was having taken account of the prospects of success. 15. The Evidence

6 The Claimant gave evidence about his employment history as a miner from 1962 to He instructed the Defendants to pursue his original claim for VWF in His evidence was that he had never had any face to face meetings with any of the lawyers who had dealt with his file and his claim had been conducted by correspondence and telephone calls, mainly instigated by him. Because of the passage of time the Defendant s file has been destroyed and it has not been possible to see any of the correspondence which passed between the Defendants and the Claimant as the Claimant has not retained the correspondence either. He was able to confirm that he had been examined by Dr Ryan in January 2000 and that the examination had taken about three hours. He reported suffering blanching to both hands which could occur all year round but was worse in winter. He indicated that problems were worse with his right hand. He reported difficulty gripping objects such as a shopping bag and problems with numbness and tingling. The report also recorded his complaint of difficulty fastening buttons, holding a pen, tying shoe laces and being able to hold a spade. 16. He recalls receiving correspondence from the Defendants from time to time and was eventually notified of an offer which he accepted. His evidence was that he was never told he might be entitled to make a services claim. He was shown a specimen letter in which the right to make a services claim for gardening and other tasks was mentioned but he denied having received a letter in those terms. His evidence was that if he had been told about the right to make a services claim he would have done so as he was in fact receiving help with gardening, window cleaning, decorating and DIY. The people who have provided the help are his wife Audrey, his son Jason and his friend Graham Swift. Although he has other conditions such as arthritis and back problems he denied that the need for help with these tasks arose from those conditions. He gave evidence that upon leaving the mines in 1993 he started work for Wakefield Council as a street cleaner between December 1993 and March 1994 which was a temporary job only. He has not worked since. 17. He was cross-examined robustly but fairly for just less than two hours. He accepted that his medical records appeared to show that he had never mentioned suffering from VWF to his general practitioner. He felt he must have mentioned this at some stage but accepted the GP had not recorded it. He accepted he had made a claim to the Department of Social Security ( DSS ) for dermatitis but had not mentioned VWF to the examining doctor because he was answering questions about his dermatitis. He also accepted that when he made a DSS claim about his knees he had not mentioned VWF although he had mentioned dermatitis. He pointed out that he was suffering from arthritis at the time and had not mentioned that either. He accepted that when he made a claim to the DSS for VWF in 1997 he had said only one of his hands was affected. He felt this may have been because he was right handed and only noticed it affecting one hand. It was put to him that when he attended the MAP 1 appointment with Dr Ryan he had chanced his arm by telling Dr Ryan what other miners had told him to say to simulate VWF symptoms. He denied this forcefully and contended that he was truthfully reporting his own symptoms at the time. He accepted he had reported problems to both hands. He accepted that Mr Tennant had decided that he was not suffering from VWF when he was examined in He said he had truthfully reported his symptoms to Mr Tennant and may have passed the relevant tests

7 because the room was warm at the time. His reporting of his fingers going pinky white was an honest attempt to describe how his fingers looked during an attack. It was suggested to him that if he was unable to do any of the tasks he was claiming for it was due to his other conditions such as dermatitis or arthritis and not due to VWF but he denied this. 18. It was suggested to him that he had received a letter advising him he could make a services claim and that the reason he had not sought to make such a claim was because he did not in fact need any assistance with the relevant tasks. He denied both that he had received such a letter and that he did not require assistance in fact. He read one of the specimen letters and agreed that if he had received a letter in the same terms he would have known it was open to him to make a claim or seek advice about making a claim. He had however received no such letter or advice; he said that if he had, he would have made a claim because he in fact needed assistance with various tasks since he stopped work in He denied that he would have put a dishonest claim in if he was not in fact suffering symptoms or needing help. 19. My overall impression of him as a witness was that he was genuinely trying to assist the court by answering the questions which were put to him truthfully. He did have difficulty recollecting what he had said to various doctors at different times but this was hardly surprising as there were a number of examinations between 1993 to When faced with an inconsistency between what he had said to a doctor in the past and his evidence to the court he did not try to dissemble and re-write history. He either said he could not remember or provided explanations some of which were more credible than others. It is right however that I should look carefully at the contemporaneous documents and see if these persuade me to alter the impression I gained from observing him give his evidence. 20. The Defendant s evidence was again provided by Mr Barber who had worked as a Solicitor for the Defendants at the relevant time. He had no personal involvement in the case and was placed at an added disadvantage by having no file of papers to be able to refer to. Whilst some of the relevant documents had been obtained from IRISC this did not include any solicitor and own client documentation. His evidence was that the Claimant was likely to have received a letter similar to the specimen letters he produced with his statement and so was aware of his right to make a services claim. He had also produced a generic statement relating to VWF claims generally as operated by the Defendants. His evidence was that a client would not normally be told about the medical presumption based upon his staging or the relative ease of the MAP 2 procedure unless the client had confirmed that he was within the factual matrix for being able to make a claim. His written evidence dealt with the various obstacles which might have prevented the Claimant succeeding with his claim such as contra-indicative employment and comorbid conditions. When assessing this evidence I have to exercise some caution as although Mr Barber was again helpful and courteous he was clearly partial. 21. He was placed in a difficult situation in cross-examination between maintaining the evidence he had given previously, which in two prior trials I have criticised, and changing his opinion to reflect those criticisms. He chose the former course which meant that he was very reluctant indeed to concede that miners were

8 typically unsophisticated clients who were poor historians. His own words about them being poor historians were put to him, as were the findings of the Solicitors Disciplinary Tribunal and the unfortunate joke about Mr Thikas Toosh Ortplanks that was a character in a training exercise he delivered. His contention that they were likely to be of average intelligence and education when compared with the general population was I felt unrealistic, as was his position on this issue as a whole. This Claimant like other miners left school at fifteen and thereafter did a difficult physical job for many years. It would be wrong to describe him as being of average education and sophistication. 22. He also sought to defend his position that the investigation made by IRISC of services claims was robust. His suggestion that claims under the CHA were more robust than common law claims because the helper had to fill in a questionnaire did not take account of the fact that in common law claims both the Claimant and his helper could be subject to carefully directed crossexamination by a skilled lawyer. Not surprisingly he was reminded that 97.2% of the Defendants services claims had in fact succeeded in whole or in part. He sought to defend the contents of the specimen letters although on this occasion he had not drafted the version which applied when the Claimant settled his claim. The criticism of the letter that the term cost suggested actual expenditure did seem to me to be a sound one on a fair reading of the letter but Mr Barber did not agree. Where he expressed his opinion or judgment about the operation of the scheme I have to treat his evidence with considerable caution as he is by no means objective. He was of course unable to actually confirm what type of letter the Claimant was sent. There appear to have been at least four options available to the fee earner once an offer was made and whilst Mr Barber can say which, in his view, would be most likely to have been sent he cannot actually confirm which one was actually sent. 23. Breach of Duty The Particulars of Negligence and Breach of Contract are set out in some detail in paragraph 19 of the Particulars of Claim. In essence however the allegation is that the Defendants were negligent in allowing the Claimant to settle his claim without advising him to register and pursue a claim for services in addition to the claim he was already making for general damages. This is particularly so, says the Claimant, when as a result of his staging at MAP 1 there was a medical presumption that he needed assistance with certain tasks, that the process for making such a claim was simple and might produce a further figure in damages about equal to the claim he had already made. The Defendants case is that the Claimant was advised that he could make such a claim but he failed to evince an intention to do so. The Defendants have not been able to rely on their file of papers because it has been destroyed and have not called any witnesses who actually advised the Claimant in relation to his original claim. Mr Barber has exhibited some specimen letters which were written at about the relevant time and has invited the court to draw an inference that the Claimant did receive such a letter.

9 24. In this case there is no evidence at all of any information gathering process or discussions with the Claimant at the outset of the claim although it is likely it was done by questionnaire. The Claimant gave evidence that he had no face to face meetings with fee earners at the Defendant s premises and that telephone discussions were mainly instigated by him. Mr Barber produced a number of specimen letters which were similar to those sent to clients like the Claimant at the relevant time. The Claimant accepted his offer on 1 st June 2000 and so the letter must have been sent before that date. The letter dated 8 th February 2000 which is in the trial bundle at 2/D4 (d)/2 appears most likely to be the type which would have been sent to the Claimant. It contained the following paragraph: However, we note that you have been graded by the medical testing centre as Grade 0V 2SN. At the present time we are in negotiation with the Defendants on whether it would be possible to obtain an additional sum to reflect the difficulties which you may have with gardening and DIY. At this time we are unable to advise you on the prospects of success of these negotiations but you must take into account the fact that those negotiations may be successful at some time in the future when making your decision. If you wish to pursue this possible additional element, please indicate this on the attached authority The letter contained certain warnings as to the risks of pursuing a services claim and then said: Although the current offer does not include any damages for the other potential additional elements to your claim you may feel that as settlement can be made in this amount straight away and that this is an offer which you are willing to accept 25. Leading Counsel for the Claimant was critical of this letter in a number of respects: firstly, it is written in terms which suggest acceptance when the firm advice of the VWFLSG since March 2000 was to reject any offers in full and final settlement where a valid services claim could be made; secondly, the letter did not advise the client of the medical presumption arising from his staging; it gave no indication of the likely value of the claim ; it gave no advice as to the relative simplicity of the procedure and did not advise that on rejection of the offer an interim payment of 80% could be readily obtained. I have to say objectively that these criticisms are justified. It is difficult to see how the posting of a letter in these terms would be sufficient to satisfy the Defendant s duty of care to their client bearing in mind the comments I made in Procter v Raleys as to the extent of the solicitor s duty of care. I do take on board however the submission of Defendant s counsel that the Claimant conceded that if he had received a letter in these terms he would have known that he could at least make a claim for gardening and DIY and could have asked for more details. The difficulty behind this submission is that if I accept the Claimant s evidence as to what he would have done if he received the letter I might well consider accepting his evidence that he never in fact received it. 26. It is clear from the Defendant s file in the specimen case and the file note at 2/D4 (a)/1 the legal adviser had at least four options when an offer in settlement was made by IRISC. These were: Recommend acceptance of the offer

10 Recommend acceptance of the offer with a warning about a potential services claim and/ or handicap in the labour market claim Recommend rejection of the offer Recommend rejection of the offer with a warning about a potential services claim and/ or handicap in the labour market claim. I have no evidence which of these options was actually followed in the Claimant s claim save that, in the light of his staging, Mr Barber would have said the second of the two options was appropriate which would contain the paragraphs I have referred to above. Against that the Claimant gave evidence that he had not received any correspondence which mentioned a service claim and if he had, he would have enquired about it as he was in fact needing assistance with services at the relevant time, including gardening and DIY. This seems logical as the Claimant had been unemployed since March 1994 and it seems difficult to understand why he would decline to make a claim for services, if indeed he was entitled to make one. This is a separate issue I will deal with later in this judgment. 27. I am faced with an inference that the Claimant is most likely to have received a letter which will have contained an invitation to call to discuss a services claim if such services were needed as against the Claimant s clear evidence that none of the correspondence he received mentioned the potential to make such a claim. I was impressed with the Claimant s straightforward evidence on this point and saw the logic of him being likely to make a claim if he was entitled to do so given his financial position. I therefore find as a fact that the Claimant did not receive any correspondence advising him of his right to make a claim for services in appropriate circumstances. This is clearly a breach of duty as by March 2000 the DTI had accepted in principle that a tariff based scheme would be set up to deal with such claims and solicitors like the Defendant had been notified of the details in bulletin 46 by the VWFLSG. In the light of this finding I do not need to go on to consider whether the advice contained in the specimen letter would have been sufficient to comply with the Defendant s duty of care. On analysis I suspect that it would not have been but that is not a finding I need to make. 28. Causation This issue is concerned with what the Claimant would have done if he had been properly advised. If he had been properly advised he would have been told that he might be able to make a services claim if he needed assistance to undertake particular tasks that he would otherwise have undertaken, but could not now undertake due to his VWF. The Claimant must prove that he would have acted on that advice by making a claim. The burden of proof in relation to this issue is on the Claimant and the standard is on balance of probability. The Defendant s case is that the Claimant did not have VWF at the relevant time and could not satisfy what has been called the factual matrix for a services claim namely that he was carrying out the various tasks prior to becoming symptomatic and now needed assistance with the tasks due to his VWF. There are therefore two limbs to this issue, firstly whether the Claimant had VWF and satisfied the factual matrix and the relevant time and secondly, if he did whether he would have made a claim.

11 29. This claim is one of a series of claims I have tried and in previous trials there has been much debate between the parties as to the extent of the factual findings I need to make in these claims. I dealt with this issue briefly in Barnaby v Raleys at paragraph 25 and in more detail in Procter v Raleys in paragraphs The Defendants habitually wish to challenge the accuracy of the MAP1 medical assessment and the Claimants characterise this approach as a trial within a trial of the type deprecated in the authorities I have referred to in paragraphs of this Judgment. I can see how a detailed analysis of the Claimant s medical history can be relevant to the assessment of the loss of a chance in respect of the claim he originally was attempting to make but in my view, such analysis can only have relevance to the issue of causation to a very limited extent. If the evidence shows, on balance, that the Claimant had no grounds for bringing a claim then this either provides a reason why he would not have acted on proper advice given about the right to make a claim, or it would mean he has lost nothing of value or that he should be prevented from making this claim on the principle of ex turpi causa non oritur actio. If the Claimant did however have grounds for bringing a claim, even based on weak evidence, then this deficiency should be reflected in the assessment of a loss of a chance rather than by an attempt to ask whether the Claimant would have succeeded in his claim on the evidence before this court which is not the original tribunal and subject to a wholly different set of evidential standards. 30. The Defendants strongest argument is that the Claimant does not appear to have mentioned any complaints relating to VWF to his general practitioner despite having suffered from those symptoms since He has visited his general practitioner on numerous occasions since, even complaining about hand symptoms in the form of dermatitis and arthritis but there is no mention of VWF or associated symptoms. The Claimant said he must have mentioned it but it does seem likely that the doctor would have recorded it if he had. The Claimant made a claim for Industrial Injuries Disablement Benefit in 1997 and the Defendants criticise the history given to the examining doctor, in particular that the Claimant reported symptoms in relation to his right hand only. To be fair to the Claimant however he did report symptoms of tingling, numbness and blanching and the doctor objectively reported poor capillary filling. He appears also to have produced blanching on a cold provocation test although I accept that the medical validity of these tests now is under question. The Claimant however relies on the diagnosis of the doctor conducting the test of VWF and that this diagnosis was repeated in a different DSS assessment by a different doctor in 1998 when he recorded hands were quite cold today in a relatively warm room. Capillary response generally is poor. 31. Both parties rely on the contents of the MAP1 examination, the Claimant to show that he had VWF at the relevant time, the Defendant to suggest that the Claimant was chancing his arm by inventing or exaggerating symptoms on the basis of what he had been told to say by other miners. He certainly reported tingling numbness and blanching to both hands which was worse in cold weather and difficulty gripping objects, fastening his buttons, holding a garden spade, holding a pen and fastening shoe laces. The Defendant points out that the Claimant did not specifically mention an inability to do the four tasks about which he now claims which is correct but he did in effect mention difficulties with gardening and difficulties with gripping and fine manipulation which are the symptoms which

12 prevent him doing DIY and decorating. The Claimant said that he was with Dr Ryan for three hours and he did conduct certain tests which were thought to be objectively helpful when the examination took place. His diagnosis of 1V 2Sn (late) R and 1V 3Sn L was in part made on the basis of these tests. It is fair to say that this examination supports the Claimant s case and the Defendant has to allege that the Claimant gave an untruthful history in order to rob it of its evidential value. 32. When the Claimant saw Mr Tennant, the single joint expert in October 2012 he was examined and Mr Tennant diagnosed the Claimant at 0V 1Sn bilaterally. He felt the Claimant did not have the vascular component of VWF because he said that his fingertips go pinky white during an attack whereas the classic description would be of the fingers going white, waxy or bloodless. I am aware that different Claimants describe the vascular attacks in different ways and the perception of each Claimant and their language can vary. This was recognised by Lady Justice Smith in Montracon Ltd v Gregory Whalley [2005] EWCA Civ Mr Tennant placed the sensorineural staging at 1sn because he determined there was intermittent numbness only and the Claimant passed all the tests intended to show lack of sensation or lack of dexterity. The Claimant also appears to have given an inconsistent history by suggesting that he only had blanching to his right hand and that his symptoms appeared to be getting worse which is not medically possible. The Claimant s explanation for passing the various tests was that the room was warm. He thought he may have only mentioned his right hand because he is right handed and his genuine perception is that his hands are getting worse, even if medically he has to accept that in fact they are not. The Defendants contend that if Mr Tennant s report is accurate and they submit that it is then the Claimant has never suffered from VWF to the extent where he could meet the factual matrix for making a claim. It is fair to say that this report and examination supports the Defendant s argument rather than the Claimant s. 33. The Defendant also relies on applications which the Claimant made to the DSS for benefits due to unrelated conditions where he has failed to mention that he was also suffering from VWF. I have to say that I was less impressed with these submissions as this Claimant unfortunately has a complicated constellation of conditions including VWF (he alleges), dermatitis, arthritis to the hands, knee and back problems and it would not be entirely surprising that he left out one or more of these conditions whilst concentrating on the condition for which he was making a claim. 34. I have gone into the medical history in some detail in order to see whether the contemporaneous documentary evidence is sufficient to displace the impression I gained of the Claimant in the witness box. There is no doubt that the Claimant has not given an entirely consistent history to each of the doctors who have examined him and it is difficult to see why Dr Ryan and Mr Tennant should reach such different conclusions in relation to the same patient if the patient was giving an honest and accurate report of his symptoms. I am left with a fairly stark choice: either the Claimant has VWF and has done his best to recall his symptoms but is a poor historian who has given inconsistent information from time to time by accident; or he is a dishonest man who reported symptoms to Dr Ryan which he knew he did not have and is prepared to say to the court that he has needed

13 assistance with certain tasks when he knows that is untrue. Counsel for the Defendant in submissions sought to suggest that a finding of dishonesty was not necessary for me to find that the Claimant had no right to make a services claim but I find it difficult to imagine a set of circumstances where the Claimant could believe he has VWF when in fact he has none of the relevant symptoms and needs help with certain tasks for reasons entirely unconnected with VWF whilst believing that he does. The cross-examination of the Claimant was squarely put on the basis that he had invented or exaggerated his symptoms to the MAP1 doctor knowing that the information was false and that in fact he did not need assistance with the various tasks. 35. I have to accept that independent clinicians in 1997, 1998 and 2000 all diagnosed the Claimant as suffering from VWF. The Defendant would say that those doctors were misled by the Claimant who invented symptoms he did not in fact have. I have to accept that the MAP1 findings are not consistent with the findings of Mr Tennant. This is not an issue where I have to be certain. I have weighed all the relevant evidence in the balance and considered it with my impression of the Claimant when he gave his evidence. I have decided on balance that the Claimant did suffer from VWF at the relevant time and that he has required assistance with various tasks as a consequence of this condition. I have rejected the alternative explanation that he is a dishonest man who was prepared to make a fraudulent claim. His vehement rejection of this suggestion in the witness box was in my view, convincing. I also find as a fact that if he had been properly advised of his right to make a services claim he would have done so. He had been unemployed at this stage for about six years and he would have been advised that he could reject the offer and receive 80% of his general damages as an interim payment. He could then make a claim on the basis of submission of questionnaires from him and his helpers which would in due course be considered after a MAP2 assessment had taken place. Having found that he could have made an honest claim, he had little or nothing to lose by proceeding with it. The Claimant accordingly succeeds on the causation issue. 36. The loss of a chance The legal burden lies on the Claimant to prove that in losing the opportunity to pursue his services claim he has lost something of value, namely that his claim had a real and substantial rather than merely a negligible prospect of success. However an evidential burden lies on the Defendants in this case to show that, despite their acting for the Claimant in the CHA claim and advising him that they would recommend he proceeded with the claim where there was a reasonable prospect of succeeding, there was in fact no real prospect of success. 37. The Defendants case on this issue was put by Mr Barber. He identified three problems which may have resulted in IRISC denying the Claimant s claim. Firstly, the Claimant may not satisfy the evidential requirements of the agreement to show that he used to do the tasks concerned and now needed help to do them, secondly that his employment as a street cleaner was one which IRISC had indicated were inconsistent with the pursuit of a services claim and finally that the MAP 2 assessment might establish a co-morbid condition which could reduce or extinguish the claim.

14 38. Given the inconsistencies in Claimant s evidence in relation to his symptoms shown in the relevant documents I can understand concerns about whether he could convince IRISC that he satisfied the evidential requirements of the CHA. Looking at the way these claims were investigated however it is unlikely that he would ever have to speak directly to IRISC let alone be interviewed or give evidence in front of them. Under the Services Agreement there was an assumption that someone graded at 2V 2Sn (late) (R) 2V 3Sn (L) like the Claimant would be unable to do the four tasks we are concerned with. He would submit a simple questionnaire from himself and three from his wife, his son Jason and Mr Swift confirming they provided the assistance. Mr Barber did not suggest that the claimants were telephoned but suggested that the helpers habitually were. In the trial bundle is a services claim telephone discussion note showing the script of the telephone interview of the helper of a claimant. It appears that the helper was asked whether they in fact helped with the task claimed and if so when they started to do so. This was then compared with the date they had entered in the questionnaire. There appeared to be no other questions asked and the call recorded in the bundle lasted for fifteen minutes. There is obviously a risk Mrs Sharp, her son and Mr Swift would say something inconsistent with their questionnaire and provoke further investigation but it was not a particularly taxing interview process. In VWFLSG bulletin 59 the steering group confirmed that where the helper was out by a few years on dates IRISC would still accept the questionnaire so the risk does not appear to be high. Mr Barber doubted this was the case but provided no direct evidence of problems he had experienced with cases he had dealt with. 39. The various helpers who were to have supported the Claimant s claim did not give evidence at trial. The Defendants contend that this is because they would not support the Claimant s claim and if that is right then it would be a fair assumption that they would not have supported the Claimant s claim in 2000 or subsequently by filling in a questionnaire. Without this the claim would be doomed to failure. The Claimant s case was that his wife, son and friend would have been prepared to fill in the questionnaires and answer questions in a telephone discussion. He gave evidence that they were prepared to support his claim but I have no way of knowing how convincing they would be or how strongly they are prepared to support it. This must attract a substantial discount from this Claimant s claim compared with someone who can bring their family to court to persuade the Judge that they would have completed a questionnaire and answered any questions in a telephone interview convincingly. I do not accept the Defendant s submission that the failure of the Claimant to call the witnesses at trial is fatal to his claim. The risk that the witnesses would not in fact support his claim contrary to his evidence that they would have done is merely another factor to weigh in the balance when assessing the loss of a chance. 40. The issue of contra-indicative employment is also relied on by the Defendants in their defence and in Mr Barber s evidence. The evidence however showed that the Claimant had worked as a street cleaner for about four months only some ten years before the date when his claim would have been considered which although outdoors did not involve the need for fine manipulative tasks. Counsel for the Defendant did not suggest in closing that this would have been treated as counterindicative employment and, on the facts, I accept she was right to make this

15 concession. Mr Barber had confirmed at the beginning of his cross-examination that of all the claims for services made by the Defendants only 2.8% were wholly unsuccessful compared with 6% nationally. 41. In this case the issue of co-morbidity is relevant. The medical report of Mr Tennant on this issue is particularly relevant as no MAP2 assessment was carried out at the time and this is very good evidence of what the MAP2 assessment was likely to have produced. Mr Tennant found that there were two relevant conditions; arthritis in the hands from 2004 and a knee condition from The MAP 2 examination would, I find, have been carried out between 2004 and 2006 and so on balance it was likely to have referred to the hand condition but unlikely to refer to the knee condition which did not become evident until The schedule of loss which the Claimant has produced actually gives a discount for comorbidity from 2006 but I have to take into account the risk that IRISC would apply co-morbidity discounts from 2004 to 2006 which were graded as moderate for gardening and window cleaning and severe for DIY and decorating. According to Handling Agreement version 0.8 at paragraph 9.1 where the impact of any condition is moderate the annual figure for the task should be reduced by 33% from the time the condition reached that stage and where the condition is severe by 66%. The initial stages of the claim from 1993 to 2003 would not be affected by this issue so any discount applied would be modest in this case. 41. I have reached the conclusion that the Claimant s original claim had a real and substantial prospect of success that was more than negligible. In terms of an assessment of those prospects there are a number of factors that I should take into account. Firstly, this was not a particularly robust process of assessment unlike normal civil litigation. If a claimant passes the MAP1 examination and his staging is at a certain level there is a presumption that he will require services to assist him in performing certain tasks. The normal verification process required a telephone interview lasting about 15 minutes with his helpers but would not normally require direct questioning of the claimant unless it was specifically referred for further investigation. The statistics reveal that 97.2% of services claims brought by these Defendants were successful at least in part. Balanced against these factors, the Claimant is a poor historian and his description of his symptoms from time to time was inconsistent (although the prospects of him actually being interviewed were not high). The Claimant would have in all likelihood suffered a small reduction to reflect his co-morbid condition after 2004 but an appropriate discount has already been factored into the figures claimed from A further substantial discount should be made to reflect the risk that the Claimant s wife, son and friend may not have agreed to fill in the questionnaire or may not have given corroborating evidence on interview. This risk was made harder to assess by their absence from the trial process. The Claimant s prospects of succeeding with a services claim were overall therefore good and my best assessment of his statistical chances, taking into account all the above factors would be 60%. 42. The logical conclusion from my findings is that the Claimant succeeds in his claim for which is 60% of 11, plus interest. The Claimant put his case on the same basis as my finding in Mr Barnaby s case that the claim

16 would have been resolved on 30 th November 2006 which was not subject to adverse comment by the Defendant. 43. This Judgement will be handed down on a date to be fixed by the court in public. The time for appealing the Judgment shall not start to run until it is handed down. CPR Practice Direction 40E shall apply. If the parties can agree the form of an order and any consequential directions arising from this Judgment then the attendance of Leading and Junior counsel and solicitors will be excused.