Neutral Citation Number: [2007] EWCA Civ 169
Case No: B3/2006/1843
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Sheffield County Court
HH Judge Bullimore
40LO7139
Royal Courts of Justice
Strand, London, WC2A 2LL

02 March 2007
Before :

LORD JUSTICE LONGMORE
LADY JUSTICE SMITH
and
LORD JUSTICE MOSES
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Between :

	Reader & Ors	Appellant	
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	Molesworths Bright Clegg Solicitors	Respondent	
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(Transcript of the Handed Down Judgment of
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Mr Christopher Limb (instructed by Messrs Ast Hampsons) for the Appellant
Mr Bernard Livesey QC & Mr George Spalton (instructed by Messrs Weightmans) for the Respondent

Hearing date : 15 February 2007
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Judgment
Lady Justice Smith : 
Introduction 
1.	This is an appeal from the judgment of HH Judge Bullimore at Sheffield County Court on trial of preliminary issues in a solicitor’s negligence claim.  
The Factual Background
2.	The history of the matter goes back to November 1989 when Mr Peter Reader was injured in a motor accident due to the negligent driving of a man named Roy Cordingly.  Mr Reader consulted a solicitor, Mr Lettall of Molesworths, now Molesworths Bright Clegg.  In July 1991, proceedings were begun in the Rochdale County Court, with the benefit of legal aid funding.  Liability was admitted.  Causation and quantum remained in issue.  Mr Reader’s case was that, as a result of his injuries, he was permanently unfit for work as a self-employed decorator.  By 1991, Mr Reader was suffering from clinical depression which, according to a psychiatric report obtained by Mr Lettall from Dr George Hay, was attributable to the accident.  By 1994, there had been other developments.  Mr Reader’s marriage to his wife Carol was in difficulties.  She had moved out of the matrimonial home.  He was the main carer for the couple’s three children, Aaran (born 17.12.80), Naomi (born 31.3.83) and Brook (born 19.9.87).  
3.	On 24th December 1994, Mr Reader committed suicide.  On his death, his cause of action was transmitted to his estate by operation of law.  He died intestate.  At some time before 9th January 1995, but we do not know when, someone, probably Mrs Reader (but we do not know that for sure) told Mr Lettall that Mr Reader had died.  It seems likely (although there no evidence on this point) that Mr Lettall was told that Mr Reader had taken his own life.  Mrs Reader, the widow, was obviously the person who would become the administratrix of the estate and in fact she took out letters of administration on 24th February 1995.  However, on 9th January 1995, at a time when Mr Lettall was without any instructions from any person capable of providing them, he wrote to James Chapman and Co, the solicitors instructed by Mr Cordingly’s insurers, to inform them that Mr Reader had died and that the claim was to be discontinued.  He sent a consent form for signature; it provided that the action should be discontinued with no order for party and party costs but legal aid taxation of the plaintiff’s costs.  Not surprisingly, James Chapman & Co agreed and signed and returned the form on 11th January.  Although it was never lodged with the court, it was binding as between Mr Cordingly and Mr Reader’s estate because Mr Lettall had ostensible or apparent authority to discontinue the action.  
4.	On 3rd February 1995 Mrs Reader went to see Mr Lettall about the claim.  We have not seen an attendance note of that meeting.  We can only infer what was said from a letter that Mr Lettall wrote on 8th February, in which he said that he was confirming the advice he had given on the 3rd.  Also on 3rd February (whether before or after his appointment with Mrs Reader is not clear) Mr Lettall wrote to Chapman & Co,  referring to a conversation of the previous day in which it is clear that he had told them that he had made a mistake in suggesting that the action must be discontinued.  He now appreciated that the action could proceed through the personal representative.  He said that he was ‘currently obtaining instructions’ with a view to determining whether the personal representatives wished to instruct him to continue the action.  He apologized for his error and promised to contact them again when he received instructions.  
5.	It is clear from Mr Lettall’s letter of 8th February that, by 3rd February at the latest, Mrs Reader had retained Mr Lettall to act on her behalf as putative administratrix of the estate.  From that letter it appears that Mr Lettall had not told Mrs Reader that he had taken steps to discontinue the action.  No doubt he was hoping to retrieve the situation he had brought about by his error.  He had told her that it was possible for her to continue the action as personal representative.  But, he had made it sound rather problematical, saying that the legal aid certificate would be discharged and the estate would have to fund the cost of the action.  He added:  ‘Proceeding with the case would entail obtaining a Court Order approving that and indemnifying you against any potential loss suffered by the estate as a result of the action.’  It rather appears that Mrs Reader had been sufficiently discouraged by this account of the difficulties that she had advised Mr Lettall that she did not wish the action to proceed but wished him to negotiate the best terms available.  It appears that not a word had been said about the possibility of a claim for damages for bereavement or loss of support for the children, subject of course to obtaining a further report from Dr Hay, dealing with the causal link between the accident, the depression and the suicide.  
6.	On 16th February, Chapman & Co wrote to say that, in their view, there was a binding agreement compromising the claim and that Mr Lettall should advise his client to consult other solicitors.  On 24th March, Mr Lettall wrote to Mrs Reader.  It appears that he had not seen her since 3rd February.  He admitted to her that he had notified the solicitors that the claim was to be discontinued.  He suggested that it might be possible still to continue the claim but that the other side would allege a binding agreement.  There was still no word about a possible claim under the FAA.  He advised her to consult other solicitors.  That she did and in June 1995, Mrs Reader’s new solicitors Atherton Standring Taylor (AST) asked Mr Lettall to send the file.  It was sent in August 1995.  
The Action for Solicitor’s Negligence
7.	In March 1998, AST wrote to Molesworths claiming damages for professional negligence.  They relied on the admission of negligence in the letter of 24th March and asserted that, if the claim had not been wrongfully discontinued, claims under the Fatal Accidents Act 1976 (FAA) would have been added by amendment.  Reference was made to a further report dated October 1996 from Dr George Hay, who opined that the suicide was causally related to the depression which had been caused by the injuries in the car accident.  AST quantified the personal injury claim, with added interest.  They claimed an award for bereavement for the widow and damages for loss of care and services on behalf of the three children. 
8.	Weightmans, the solicitors instructed to deal with this claim by Molesworths’ insurers, responded in detail in July 1998.  They accepted that there was liability for the personal injury claim and were taking instructions on settlement.  They rejected the widow’s claim for bereavement, saying that this was a separate cause of action which she could have pursued against Mr Cordingly at any time until 3 years after the death (24 December 1997).  Molesworths had not been retained since 24th March 1995; they were not liable for any loss.  So far as the children’s claims were concerned, no loss had been caused by Molesworths.  The claims were separate and could all still be pursued against Mr Cordingly because time did not begin to run until each child reached 18 and would not be time barred until each child reached 21.  Molesworth’s had caused them no loss.  
9.	In March 1999, Weightmans offered £55,000 in settlement of the whole claim.  In June 1999, AST indicated that this would be acceptable for the personal injury claim but they maintained their claims under the FAA.  They had taken counsel’s advice and he was of the view that the negligent discontinuance of the personal injury claim had brought an end to the possibility of bringing a FAA claim against Mr Cordingly.  Further, even if it had not, Molesworths could not require the dependants to bring a fresh claim in order to mitigate the loss they (Molesworths) had caused.  A number of authorities were cited in support of both propositions.    
10.	By September 1999, Weightmans had taken counsel’s advice.  He disagreed with AST’s counsel.  However, in October 1999, Weightmans agreed that the offer of £55,000 should stand only as the personal injury damages, leaving the dependants to bring further proceedings for the alleged loss of the FAA claims if they chose. 
11.	Mrs Reader (who at some stage remarried and became Mrs Carol Wood) accepted the advice of her counsel that it was not possible to bring a FAA claim on the children’s behalf because such a claim had been irrevocably lost.  It was not until December 2004 that the children issued proceedings against Molesworths for Mr Lettall’s negligence.  The claim was put on the basis that, on the death of Mr Reader, the benefit of the retainer with Mr Lettall, which obliged him to act with all reasonable skill and care, passed to the personal representative (the widow/mother) and to the children (the claimants) who had rights to dependency damages.  Therefore Mr Lettall owed a duty of care in relation to the potential rights of the claimants.  The claim for Mr Reader’s personal injuries could and should have been amended to include the dependency claim.  As the result of Mr Lettall’s wrongful discontinuance of the personal injury action, it was no longer possible for the dependants to proceed against Mr Cordingly.   The particulars of loss were fully pleaded.  
12.	The defence denied that the benefit of Mr Reader’s retainer with the defendants had passed to the administratrix or to the claimants on Mr Reader’s death.  Further, it denied that the defendants owed any duty to the claimants after the death in relation to any rights to dependency damages they might have against Mr Cordingly.  Consideration of the claimant’s dependency claims against Mr Cordingly was outside the scope of the defendants’ duty to the deceased.  It was admitted that, subject to proof of the causal link, the pleadings in the original action could have been amended to include a claim for dependency damages under the FAA.  It was denied that the defendants had been negligent in failing to advise the administratrix about the availability of claims under the FAA.  The defence denied that dependency claims had been either extinguished or prejudiced as the result of discontinuance of the personal injury action.  In effect this was a denial that the claimants had suffered any loss as the result of the defendants’ actions.  Further, the claimants ought to have pursued their claims against Mr Cordingly and their failure to do so was a failure to mitigate any loss they had suffered.  

The Determination of Preliminary Issues
13.	In the light of the issues raised on the pleadings, the parties agreed and District Judge Osborne directed that the following preliminary issues should be determined:  
“IT IS ORDERED THAT
1.	The following be tried as preliminary issues:-
(i)	(By reference to paragraph 6 of the Particulars of Claim and paragraph 6 of the Defence).  Did the Defendants owe duties to the Claimants following the death of the deceased to act with all reasonable professional skill and care in relation to the rights and potential rights of the Claimants to bring an action against Cordingley under the Fatal Accident Act for dependency?
(ii)	(By reference to paragraphs 9 and 10 of the Particulars of Claim and paragraphs 10 and 13 (iii) of the Defence).  Were the Claimants as a matter of law entitled to bring a claim for dependency damages against Cordingley following the discontinuance and compromise of the deceased’s action?
(iii)	(By reference to paragraph 13(ix) and (x) of the Defence).  If the answer to the previous question is that the Claimants were as a matter of law entitled to bring a claim for dependency damages against Cordingley after discontinuance and compromise of the deceased’s action:
(a)	Did the Claimants failure to bring such an action amount to a failure to reasonably mitigate their loss
(b)	Was the chain of causation broken by reason of failure to bring such proceedings;
(c)	(Insofar as not answered in response to the issues at (a) and (b)).  Was there a duty upon the Claimants to bring further proceedings and not merely a right to bring further proceedings?”
14.	The preliminary issues came before HH Judge Bullimore.  No oral evidence was called.  The claimants put in a brief statement from Mrs Wood which is more notable for what it does not cover than for what it does.   In particular she said nothing about her contact or discussions with Mr Lettall.  She did say that she had been advised by her current solicitors that there would be substantial difficulties and risks on costs in bringing an action against Mr Cordingly on the children’s behalf. The defendants had not offered any indemnity on costs (by way of encouraging her or the claimants to commence such an action in mitigation of loss).  There was no evidence at all from the defendants.  
15.	 Much of the judge’s judgment related to the second issue, namely whether, as a matter of law, the claimants’ dependency claim had been extinguished by the discontinuance of the personal injury claim.  He held that it had not been.  He held that, from the moment of death, there were in existence two separate causes of action, the personal injury claim which transferred to the administratrix by operation of law and the claim for dependency under the FAA.  Although these two causes of action were closely related, in that both stemmed from the negligence of Mr Cordingly, they were in law separate.  On examination of the letter written by Mr Lettall to Chapman & Co, (which referred to discontinuance of the ‘current proceedings’) and the terms of the consent form (which referred to discontinuance of the ‘proceedings herein’) the judge found that only the personal injury action had been discontinued.  He held that the FAA claim was unaffected by the discontinuance. 
16.	In the light of that decision, the judge considered that it mattered not whether the defendants had owed the claimants any duty.  However, because the issue had been referred to him, he felt obliged to deal with it.  He accepted as correct the limited concession made by the defendants that after the death they had been under a duty not to damage the original personal injury claim.  He did not consider whether or when any relationship of solicitor and client had arisen between the defendants and Mrs Reader or whether, if and when it had arisen, Mrs Reader’s position as administratrix  meant that Mr Lettall had to advise her not only about the personal injury claim but also her own and the children’s FAA claims.  The judge considered the question of duty on a hypothetical basis, saying that, if the solicitor had accepted instructions from her after she had become the personal representative, he would have owed her the usual range of duties to exercise reasonable skill and care.  But even then, he said, she would be the client not the children.  He even postulated the possibility that there might be a conflict of interest between her position and that of the children in which case it would be the widow/administratrix who was the client not the children.  He observed that, if the administratrix did not bring an action under the FAA, the children could not say that the solicitor had been under a duty to make her do so.  He did accept that the solicitor might have been under a duty to advise the administratrix as to the effects of her not bringing an action on behalf of the dependant.  His conclusion was that the defendants owed no duties to the claimants following the death.
17.	Finally, the judge indicated that, in the light of his decision on the second issue, the issues under the paragraph (iii) did not arise.  Mitigation of loss could only arise as an issue if the claimants had suffered some loss.  In this case they had not because their FAA claims were unaffected by anything that the defendants had done.   
The Appeal 

18.	The claimants appealed and I granted permission.  There is no authority on the second, crucial, issue.  I considered that the claimants’ position warranted the attention of this court. 

The Second Preliminary Issue
19.	It was convenient, on the hearing of the appeal, for Mr Limb (who has throughout acted for the claimants, now appellants) to deal first with the second preliminary issue.  It was the most important.  He contended that the judge had been wrong to hold that the claimants’ FAA claim had remained in existence after the personal injury claim had been discontinued on 11th January 1995.  
20.	His submission was that there was only one cause of action arising from the negligence of Mr Cordingly.  On Mr Reader’s death, the single cause of action was transmitted to the estate.  Once a personal representative was appointed, that cause of action was enlarged or extended so as to include a dependency claim under the FAA.  If a claim had already been brought before the death, it could have been amended to add the FAA claim. If no claim had been commenced, a single claim could be made covering the injuries before death and the loss of dependency. If the single claim was at any stage discontinued, compromised or satisfied, the whole cause of action was at an end.  The judge was wrong to hold that there were two separate causes of action arising from the same wrongful act and that one could survive the discontinuance of the other. 
21.	Mr Limb accepted that the starting point for this issue must be section 1 of the FAA.  So far as relevant section 1 provides: 
“1.	If death is caused by any wrongful act, neglect or default which is such as would (if death had not ensued) have entitled the person injured to maintain an action and recover damages in respect thereof, the person who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured.
2.	Subject to 1A(2) below, every such action shall be for the benefit of the dependants of the person (“the deceased”) whose death has been so caused.”
22.	Mr Limb accepted that those two subsections refer to the existence of ‘an action’ to be brought for the benefit of the deceased’s dependants against the person who had caused the injury which led to the death.  The right to bring that action was dependent upon whether the deceased person would (at the date of his death) have been entitled to bring an action, if it had not been for his death.  However, he submitted that the nature of the right to claim for a loss of dependency was itself dependent on the deceased’s estate having a claim.  It was, he suggested, parasitic upon the deceased’s right, as vested in the estate.  If the estate’s right no longer existed, the dependant’s right could no longer exist either.  He submitted that the claim under the FAA was not a separate chose in action; it was merely an extension of the claim to be brought by the personal representative on behalf of the estate.  
23.	In support of that proposition, Mr Limb relied on a number of authorities.  He accepted that none was of direct application.  However, he submitted that they provided highly persuasive obiter dicta. The oldest authority was Read v Great Eastern Railway Company [1867-78] LR 3QB 555.  There a railway passenger was injured; he sued and obtained damages.  Later he died as the result of the injuries sustained in the same accident.  The Court held that the widow could not bring an action for loss of dependency under the Fatal Accidents Act 1846 section 1 of which was in similar terms to section 1 of the current FAA.  Blackburn J said: 
“Before that statute (the FAA 1846) the person who received a personal injury and survived its consequences, could bring an action and recover damages for the injury; but if he died from its effects, then no action could be brought. To meet this state of the law, the (statute) was passed and … ”

He then set out section 1 and continued: 

“Here ….the party injured could not ‘maintain an action in respect thereof`` because he had already received satisfaction.”
24.	He then referred to section 2 which he said regulated the amount of damages and provided for apportionment in a manner different from that which would have been awarded to a man in his lifetime. He continued: 
“This section may provide a new principle as to the assessment of damages but it does not give any new right of action. …. The intention of the enactment was that the death of the person injured should not free the wrongdoer from an action and in those cases where the person injured could maintain an action, his personal representatives might sue.”
25.	Lush J agreed and said that the statute overcame the old rule that a person’s action ended with his death.  It provided a different mode of assessing damages but did not give a fresh cause of action. 
26.	Mr Limb sought to rely on this case to demonstrate his proposition that there was but one cause of action arising from the original tort and that the dependency claim was not a new and different claim but merely provided for an additional measure of damages.  I can see that the words of the very brief judgments might be construed as suggesting that there was only one claim arising from the accident.  However, it is also clear that the court was not considering the kind of situation which had arisen here and, had they been doing so, I think they might have expressed themselves differently. 
27.	Next, Mr Limb cited McCann v Shepherd [1973] 1 WLR 540.  In that case, the injured plaintiff succeeded in his action for damages for personal injury.  The defendants appealed the quantum of damage but before the appeal was heard the plaintiff died.  The Court of Appeal was asked to reduce the damages (even further) in the light of the death.  In the course of considering whether it would be fair to do so, the question arose as to whether the widow would be able to bring a claim under the FAA.  At page 545, Lord Denning MR said: 
“It is open to doubt whether the widow here would have any claim under the Fatal Accidents Act.  Her husband had sued Mr Sheppard to judgment. Under that Act, the matter must be looked at as at the time of his death.  Applying the words of the statute “If death had not ensued”, would he himself have been entitled to maintain an action and recover damages for negligence?  I do not think so: for the simple reason that he had already recovered judgment and having done that he could not maintain another action for the same cause.”
28.	Mr Limb submitted that that passage shows that, because Mr McCann’s action had been satisfied, there could not be a claim under the FAA.  There was no difference between satisfaction by judgment and discontinuance on terms.  If the initial claim had been discontinued, there could be no FAA claim.  However, it must be recognised that, in McCann, the initial claim had been satisfied before the death.  In the present case, Mr Reader’s claim was still in existence at the time of the death; it was not discontinued until after the death.  
29.	Finally, Mr Limb referred to Murray v Shuter [1972] I Lloyds Rep 6.  In that case the plaintiff was grievously injured and was not expected to live long.  When his claim for damages was almost ready for trial, his legal representatives decided to apply for an adjournment.  At that time, it was not thought to be possible for a live plaintiff to claim damages for his ‘lost years’. The plaintiff’s representatives realised that, if judgment were to be given before he died, it would not be possible for dependants to claim in respect of their dependency.  He would recover much less than would be recovered by his estate and dependants after his death.  At the hearing of the application to adjourn the trial, there was no dispute as to the effect of judgment before the death and no dispute as to entitlement of the widow to bring another action for loss of dependency if the plaintiff died before his action was brought to judgment.  The court granted the adjournment requested as an exercise of discretion.  In giving judgment Lord Denning MR said that if the action were disposed of in the plaintiff’s lifetime, the dependants would have no separate action for their own benefit.  On the other hand, if the trial were deferred until after the death, his own action would continue for the benefit of his estate and in addition, his dependants could bring an action under the FAA.  He said: ‘The two actions can be combined’. 
30.	Before us, Mr Limb, who had relied on this case before the judge, was driven to accept that it did not assist his case.  Indeed, Mr Livesey QC submitted that it provided direct support for his proposition which was that, at the moment of death, the right to bring a second action (under the FAA) came into existence provided that the first cause of action had not by then been satisfied, either by judgment, settlement or discontinuance.  In Murray, the adjournment was needed so that the personal injury action could be kept in existence until the dependency action arose at the moment of death. 
31.	Mr Livesey submitted that the answer to the second issue was clear.  Both Read and McCann were cases in which the personal injury action had been satisfied before the death.  They could not assist the appellants.  Although there was no reported case in which it had been argued that the satisfaction or discontinuance of the personal injury action after death had or had not extinguished the dependants’ FAA claim, it was clear from section 1 of the Act that it did not.  Under section 1, if death was caused by a wrongful act, a dependency claim existed if the person injured would have been able to maintain an action against the wrongdoer if death had not ensued.  It was clear, he submitted, that the crucial time for the generation of the FAA claim was the moment of death, as had been recognised in Murray.  If the personal injury action existed at the moment of death, the dependency claim came into existence at that moment and was not affected by subsequent settlement or discontinuance of the personal injury action.  
32.	Mr Livesey observed that, in his experience, it was unusual but not unknown for a claim for personal injuries and a claim under the FAA to be brought separately.  He had been involved in one case where separate actions were brought and separate solicitors instructed.  He could not recall whether the two actions had been consolidated, although they should have been.  It was necessary for the two claims to be consolidated or at least heard together so as to avoid conflicting findings of fact which could otherwise arise on the issues of liability.  However, they were still separate claims.  
33.	Mr Limb pursued an alternative argument.  He contended that, even if this court were to hold that the FAA claim had not been extinguished along with the personal injury claim, it had at least been made less certain.  The law on the question of whether the FAA was a separate claim or merely an extension of the personal injury claim was uncertain.  By creating a situation in which uncertainty arose, Mr Lettall had diminished the value of the FAA claim.  The claim had been changed from being a certain winner to being a much less than certain winner; its value had been diminished.  In any solicitor’s negligence claim, the task of the court was to assess the value of the cause of action that had been lost; there was no reason why the court should not assess the diminution in value of the cause of action.  
34.	Mr Livesey disagreed with that submission.  Quite apart from the fact that the claim had not been pleaded on the basis of a diminution in value, he submitted that the only uncertainty about the existence of the FAA claim was in the minds of the claimants’ solicitors, who disagreed with Weightmans on a point of law.  There was no true uncertainty.  The law was always capable of being ascertained.  If there was disagreement on a point of law, it was for the judge to decide.  The result would be that either the FAA claim had been totally lost as the result of Mr Lettall’s actions or it had been unaffected by his actions and would be exactly as valuable a claim as it ever had been.  
35.	On this second preliminary issue, I accept Mr Livesey’s submissions and am satisfied that the judge was right.  The authorities relied on by Mr Limb do not assist him; they deal with the position where the personal injury claim has been satisfied before the death and not where it is satisfied or discontinued after the death.  The difference is of crucial importance.  
36.	In my view, it is clear from Section 1 of the FAA that, if at the moment of his death, an injured claimant has an existing cause of action arising from the wrongful act which caused his injuries and if he dies as the result of the same wrongful act, a second cause of action for the benefit of his dependants comes into being at that moment.  Also at the moment of death, the existing cause of action is transmitted to his estate pursuant to the Law Reform (Miscellaneous Provisions) Act 1934.  
37.	My own practical experience tallies with that of Mr Livesey. It is well recognised that there are two separate actions.  In addition, it should be noted that the two actions are governed by different limitation periods.  The personal injury action is governed by sections 11 and 14 of the Limitation Act 1980.  In general, the action must be brought within three years of the accident or where the claim relates to a progressive disease, within three years of the date on which the claimant knew or ought reasonably to have known of the claim. On the other hand, the claim under the FAA is governed by section 12 of the Limitation Act, which provides that the claim must be brought within three years of the date of the death.  These provisions are not compatible with the notion that the FAA claim is merely an extension of or amendment to the original claim.   
38.	I conclude therefore that, when in late March 1995, Mr Lettall advised Mrs Reader to consult other solicitors, the dependants’ claim under the FAA was intact.  Had its value been reduced by any uncertainty as to its validity?  In my view, it had not; it was as valuable as it had been before 11th January.  Liability was bound to be admitted, as it had been admitted in the personal injury action.  There would be an issue as to whether the death was causally related to the original accident but that would have been in issue whether the claim had been commenced before 11th January or after.  There had been no delay in prosecuting the claim such as might reduce its value.  The limitation period had only just begun to run.  Mrs Reader could have started the FAA action as soon as she instructed new solicitors.  It is apparent that AST, on counsel’s advice, took the view that the claim had been discontinued and was without value.  I suppose it would be fair to say that, if they were unsure about the correctness of their view, they would perceive the case to be less valuable than it would have been if that uncertainty had not arisen.  However, there was in fact no uncertainty as the difference of view on the issue of law was to be determined by the judge.  
39.	In the course of the hearing before us, the question was raised as to whether, if the FAA action had been unaffected by Mr Lettall’s negligence in respect of the personal injury action itself, Mrs Reader or the children had suffered any other loss.  It was suggested that they might have suffered additional trouble and anxiety.  It seems to me that they might well have done but that is not what is claimed in this action.  Any additional trouble and anxiety would have been suffered by Mrs Reader rather than the children.  She is not a claimant in the present action and in any event no claim has been made. 
40.	I would therefore hold that, in respect of the second question, the judge was right to answer by saying that the claimants’ FAA against Mr Cordingly had not been extinguished. 
The First Issue
41.	In the light of my holding under the second issue, it is in my view clear that the first preliminary issue is of academic interest only.  Even if Mr Lettall owed the claimants a duty of care from the date of Mr Reader’s death, as Mr Limb contended, and even if he breached that duty (a matter on which the judge was not asked to rule), they could not have suffered any (pleaded) loss if their cause of action remained unaffected by anything that he had done.  However, because the judge made a finding on the question of duty and because we heard argument on the issue, I wish to make some observations.  
42.	The judge held that Mr Lettall owed no duty to the claimants at any stage.  Mr Limb contended that a duty of care to the claimants arose automatically on the death. Mr Livesey disputed that but argued that any duty owed by Mr Lettall was dependent upon a retainer. He conceded that, from 3rd February 1995, when Mr Lettall accepted a retainer from Mrs Reader, he owed her (as the putative administratix) a duty of care to advise her not only about the personal injury claim but also as to the existence and scope of the cause of action under the FAA, including such claim as might be advanced on the part of her children, now the claimants.  If he failed to give that advice, he would be in breach of duty to her and she would be able to recover damages for her own losses and (in the event that their personal limitation periods had expired) also those of the dependants. However, Mr Livesey did not accept that this amounted to a legal duty owed directly to the children. 
43.	I accept Mr Livesey’s submission.  I am satisfied that there can be no duty of care in the absence of a retainer.  If the widow had instructed Mr Lettall, as she did on the 3rd February 1995, and had not withdrawn her instructions after receiving the letter of 24th March, the solicitor would have owed her (as administratrix) a continuing duty of care.  If he had failed to advise her about the FAA claim and had allowed her limitation period to expire, he would have been in breach of duty and she would have had a claim against him.  But the children’s position would have been different. Each of their claims could not be time-barred until three years after majority and it would be up to them to take advice in their own rights when they reached their majority.  If they retained the same solicitor and he still failed to advise them correctly, he would be liable to them but that would be under a different retainer.  Accordingly, I consider that the judge was right to say that Mr Lettall did not owe a duty to the claimants in the circumstances that arose in the instant case.
44.	Having said that, there are two things I wish to add.  The first is that, although it is tempting to invite a judge to determine whether a duty of care exists as a preliminary issue, it is often unwise to do so.  Questions of duty must be decided in the context of the facts of the particular case.  Here, the judge had very little factual information before him.  He did not know whether it was Mrs Reader who informed Mr Lettall of the death or what was said on that or any later occasion before 3rd February so as to judge when a retainer had come into existence. In the event, it matters not because even if there had been a retainer from a date before Mr Lettall wrote to Chapman & Co, the loss and damage caused by his action on 9th January would have been the same. The estate’s cause of action would have been destroyed and the FAA claim would not have been.  I wish only to sound a note of caution about deciding to determine duty of care as a preliminary issue. 
45.	My second observation relates to the difference between a solicitor’s duty of care and his responsibility to provide a good service for his clients.  The two may not necessarily be the same.  In the present case, I have said that the solicitor did not owe the claimants (the children) a legal duty of care during the period in which their mother retained him.  That was because their legal rights could not be affected by his conduct during that period; their rights could not be lost until three years after their majorities. That said, children in such a situation are not served well by the long postponement of their recovery of damages.  As a matter of law, the children do not suffer damage by a long delay in recovery of their lost dependency; they are entitled to interest on their losses. However, in practice, they have been badly served if their claims for dependency are not brought until many years later.  In the present case, for example, the loss of dependency was for the loss of their father’s practical services.  He looked after them as children.  The purpose of the claim would be to enable the mother to replace those services at the time when the children needed them.  The purpose was not to provide the children with a lump sum as adults.  In my view, any solicitor who is consulted by a person who is responsible for bringing a dependency claim on behalf of children has a professional responsibility to advise the administratrix in such a way as will seek to ensure that the claim for the benefit of the dependants is brought with proper expedition. 
The Third Issue
46.	The judge declined to make any finding on the third issue, whether the failure of the administratrix, and latterly the children, to bring a FAA claim against Mr Cordiingly amounted to a failure to mitigate their loss.  Mr Limb submitted that the judge had been wrong so to decline.  He cited a number of authorities, (principally Pilkington v Wood [1953] Ch 770) in support of the proposition that a defendant who has caused a claimant to suffer loss is not entitled to expect the claimant to embark on litigation against a third party in an attempt to reduce the damage suffered.  I have no doubt of the correctness of that principle.  However, Mr Limb’s difficulty is that the concept of mitigation only comes into play where the claimant can prove that he has suffered some damage as the result of the defendant’s breach of duty.  Here, as is demonstrated by the answer to the question posed as the second issue, these claimants have not suffered any loss as the result of Mr Lettall’s actions.  It is true that the first and second claimants are now too late to sue Mr Cordingly; the limitation period has expired in each case. It appears that they have suffered loss.  But they have suffered it as the result of their acceptance of the advice given by AST that they had no claim.  As for the third claimant, he is not yet 21 and his cause of action under the FAA is still capable of pursuit.  In my view, the judge was right to decline to deal with the third issue and I say no more about it.  
47.	For the reasons I have given, I would dismiss this appeal. 
Lord Justice Moses : 
48.	I agree as to the disposal of this appeal.  It seems to me that the resolution of the second issue turns on the proper construction of section 1 of the FAA.  The statutory hypothesis requires an assumption that death has not ensued.  The statutory question is whether on that hypothesis, an injured person would have been entitled to maintain an action and recover damages.  In the instant appeal, plainly Mr Reader would have been so entitled; his claim had not been compromised before he died.  The dependants’ rights of action survived, just as they did on the grant of the adjournment sought in Murray. 
49.	By way of contrast, in Read and McCann, the injured person had settled before death, so the answer to the statutory question was no.
50.	I echo Longmore LJ’s words of caution as to the First Issue.  The identification and content of the duty require findings of fact.  I am simply not prepared to resolve the first issue when it is academic and should never have been raised as a preliminary point at all.
Lord Justice Longmore:
51.	The Second Issue
Mr Limb relied on a number of cases in support of his submission that only one cause of action existed in respect of personal injury and that a dependency claim was part of the cause of action.  If, therefore, a claim becomes time-barred before the death of the injured party, the dependants have no claim (Williams v Mersey Docks [1905] 1 KB 804 and section 12(1) of the Limitation Act 1980);  if the injured party settled his claim before he died, the dependants similarly have no claim (Read v Great Eastern Railway (1868) LR 3 QB 555);  likewise if a claim has proceeded to judgment before the injured party dies (Murray v Shuter [1972] 1 Lloyds Rep 6 and McCann v Shepherd [1973] 1 WLR 540).  These cases have not passed without criticism (see Mr Harvey McGregor 29 MLR 629, 647-8 (1965) and (38 years later) Damages, 17th ed. paras. 36-009 to 36-011) and the House of Lords has declined to give any final endorsement to the last of the three propositions, see Pickett v British Rail Engineering Ltd [1980] AC 136, 146H per Lord Wilberforce and 152 E-H per Lord Salmon.
52.	Nevertheless the line of authority has enabled Mr Limb to submit that if a settlement before death disposes of a claim, so must a settlement after death because there cannot be any logical distinction between the two situations.  I do not agree, because death does make all the difference.  Before death, no dependency claim can exist.  Once death occurs, a dependency claim can arise and, logically, time for that claim begins to run.  So it must be regarded as settled at the level of the Court of Appeal that, if before death a claim is settled or proceeds to judgment, the claim in respect of the personal injury claim is finally disposed of.  Once death occurs, however, (provided that the personal injury is not finally concluded) a dependency claim can arise.  It will then be a matter of construing the terms of any settlement to decide whether that settlement disposed not only of the claim of the injured person (now represented by his estate) but also of the existing dependency claim.  I agree that in this case the ostensibly authorised settlement only settled the estate’s claim and not the dependency claim.  It follows that I agree with Lady Justice Smith that the second preliminary issue should be answered in the affirmative.
53.	The First Issue
I agree with my Lady’s judgment on the first issue but would wish to make clear that that does not mean that Mr Lettall was not in breach of his duty to Mrs Reader as putative administratrix.  Mr Livesey accepted that there was a duty to advise her about both the personal injury claim and the FAA cause of action.  That duty would include a duty to advise her both of the existence of the dependency claim and that it should be progressed.  Although it was no part of the preliminary issues to ask whether there was a duty to Mrs Reader or whether there was a breach of that duty, it must be arguable that there was.  It might well not be an adequate performance of that duty for Mr Lettall merely to have told Mrs Reader that he had wrongly compromised the personal injury claim and that she should go to other solicitors.  None of this arises, however, on the preliminary issues as framed.

54.	The Third Issue
I also agree with Lady Justice Smith that, on the answers given to the first and second issues, the judge was right to decline to deal with the third issue.
55.	In the event, the appeal will be dismissed.