By Sebina Noreen Malik
This case relates to a joint venture property transaction between two property development companies.
The claimant instructed an experienced solicitor in business transactions to achieve the best possible terms for the deal. The defendant solicitors negligently failed to advise the claimant that the terms of the agreement deprived him of any profit from the development. The claimant claimed for loss of opportunity.
The question raised was whether damages for any resulting loss should be calculated on the balance of probabilities or loss of chance. The defendant solicitor contended that the court had all the evidence it required, and the relevant test was therefore the balance of probabilities.
In the High Court, Freedman J assessed the claimant’s loss on loss of chance rather than on the balance of probabilities.
Freedman J held that where the claimant’s loss depended on the hypothetical actions of a third party, the court should evaluate the claimant’s loss on a loss of chance basis (Allied Maples Group Ltd v Simmons & Simmons  EWCA Civ 17).
• This case depends upon what a third party would have done, and the court will not usually have all the evidence if the third party had been a party.
• The loss depends on the hypothetical acts of a third party and effect of the third-party evidence.
• The judge departed from the ordinary burden of proving facts of the balance of probabilities as it was impracticable to prove the case on the balance of probabilities. The claimant’s loss was evaluated on a loss of chance basis.
Case: Moda International Brands Ltd v Gateley LLP and another  EWHC 1326 (QB) (23 May 2019) (Freedman J).