[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Di Matteo v Marcus Lee & Co [2010] EWHC 312 (QB) (21 January 2010) URL: http://www.bailii.org/ew/cases/EWHC/QB/2010/312.html Cite as: [2010] EWHC 312 (QB)

[New search] [Printable RTF version] [Help]

IN THE HIGH COURT OF JUSTICE
SENIOR COURT COSTS OFFICE

		Royal Courts of Justice Strand, London, WC2A 2LL
		21 January 2010

MRS JUSTICE SLADE:

1. Mr Di Matteo claims damages for negligence and/or breach of contract by his former solicitors, Marcus Lee & Company. He retained the defendant to investigate and pursue claims against two firms of solicitors, Charsley Harrison and Fort & Co, who had acted for him in ancillary relief proceedings following his divorce.
2. On about 5 June 2000, the claimant had also retained the defendant to appeal an order made on 5 October 1999 in those ancillary relief proceedings.
3. The defendant issued a claim in the proceedings against Charsley Harrison and Fort & Co on 5 June 2005. However, due to an error in an address for service it was not served in time. The primary limitation period had by this time expired and therefore the claimant was unable to pursue his claim against Charsley Harrison and Fort & Co.
4. Liability for breach of duty and failing to issue and serve the claims has been admitted by the defendant. The issues to be decided are whether that breach caused the claimants loss and, if so, its amount.
5. By the breach of duty of the defendant the claimant has lost the chance of pursuing a claim against Charsley Harrison and Fort & Co. The claim was that Charsley Harrison and/or Fort & Co failed to inform the claimant that his former wife's solicitors, on her behalf, had made a Calderbank offer in a letter dated 20 January 1999, sent to Barrett & Thomson solicitors who had then just ceased to act for the claimant.
6. By that letter Mrs Di Matteo offered to accept the lump sum of £60,000 and to retain the sum of £30,000 which was already in her possession to dispose of her ancillary relief claim ("the Calderbank offer").
7. The Calderbank offer reads as follows:

"We have now had the opportunity of discussing this matter in detail with our client and as a result of this discussion we are writing to put forward a settlement proposal in order to resolve this matter. Our client would be prepared to settle this matter on the basis of a payment to her of a lump sum of £60,000. This could either be in consideration of the transfer to your client of our client's share in the matrimonial home or by way of a payment to our client of £60,000 from the proceeds of sale of the matrimonial home. This payment would be in full and final settlement of all our client's respective claims against the other and all other assets would remain the property of the party to whom they presently belong. If necessary our client would also transfer any interest she has in the Italian properties to your client as part of this settlement."

Then there are other paragraphs in that letter which are not directly material to this judgment.

8. The claimant's claim against Charsley Harrison and/or Fort & Co was that they were in breach of duty in failing to inform Mr Di Matteo of the Calderbank offer. If they had done so at the time it was sent he contends that the ancillary relief proceedings would have been settled for £40,000. In the event he was ordered by District Judge Henson on 5 October 1999 to pay his wife the sum of £100,000 with a proportion of the net proceeds of the matrimonial home in default. The claimant was also ordered to pay his former wife's costs in the sum of about £2,000.
9. On causation the issues for me to decide are, first, whether the claimant would have pursued his claim against Charsley Harrison and/or Fort & Co to a resolution: either to a determination by a court or to a settlement. Secondly, whether the claimant has lost anything of value. The answer to that question depends upon the assessment of whether the lost litigation had more than a negligible prospect of success. In determining that question, has the claimant established that there was a prospect which was more than fanciful that (a) Charsley Harrison and/or Fort & Co received the Calderbank offer; (b) the claimant would have made a settlement offer of £40,000; (c) if the claimant had made a settlement offer of £40,000, it would have been accepted by Mrs Di Matteo.
10. On quantum, the issues to be determined are first what percentage reduction, if any, is to be made from any award of damages to reflect the contingencies decided upon in considering causation? Secondly, whether a deduction from the award is to be made to reflect likelihood of failure of the claim against one of the proposed defendants, probably Fort & Co. Thirdly, whether costs of the claimant's appeal and related correspondence with Mrs Di Matteo's solicitors were caused by the defendant's breach.
11. In the hearing before me, the claimant has represented himself. He gave evidence, as did James Eric James, Anne Simon and Tommaso Petruccelli, each of whom has known him for about 30 years. The witness statements of two further witnesses, Prem Sadasivian and Cyril Edwards were agreed. Two witnesses, Mr Matheroo, Managing Clerk at Barrett & Thomson solicitors who had acted for the claimant in his divorce proceedings before Charsley Harrison were instructed and Paul Spooner, solicitor at Charsley Harrison, attended and gave evidence pursuant to witness orders.
12. Simon Trigger of counsel appeared for the defendant. Anthony Shinner, a legal executive at the defendant and Christopher Comley a partner at Kidd Rapinet, the solicitors who had acted for Mrs Di Matteo, gave evidence for the defendant.

Relevant chronology

13. The following chronology of background facts is taken from the document helpfully prepared by Mr Trigger.
14. May 1997 to April 1998: the claimant retains Charsley Harrison solicitors for his divorce and ancillary relief proceedings. 11 September 1997: divorce petition issued by Mrs Di Matteo. April 1998 to December 1998: claimant retains Barrett & Thomson. 8 May 1998: decree nisi. 21 December 1998: the claimant retains Charsley Harrison solicitors. 20 January 1999: Calderbank offer for £60,000 sent to Barrett & Thomson by Messrs Kidd Rapinet on behalf of Mrs Di Matteo.
15. June 1999: claimant retains Fort & Co. 1 October 1999: claimant offers to settle for £15,000. 5 October 1999: hearing before District Judge Henson. June 2000: claimant retains defendant. 15 January 2001: the claimant offers to settle for £40,000. 23 January 2002: appeal before His Honour Judge Catlin. 8 May 2003: agreement to pay £150,000.
16. 3 June 2005: solicitors' negligence claim issued. 5 April 2006: negligence claim struck out due to service. 16 January 2008: the present claim issued.
17. The first matter for me to consider is: would the claimant have pursued his claim to a resolution? On the evidence of his conduct during the ancillary relief proceedings and these proceedings, I find that if the claimant considers that he has a point to pursue he is prepared to do so as far as he can go. As for whether the cost of litigation would deter him, he was privately funded. As with these proceedings, if, for funding or other reasons, he were no longer to use the services of lawyers, he has shown that he is prepared to pursue litigation representing himself. Accordingly, I find it is overwhelmingly likely that the claimant would have pursued his claim against Charsley Harrison and fought it to a conclusion.
18. I have found that the claimant would have pursued the claim against Charsley Harrison. In his letter of 15 December 2000 to Mr Shinner at the defendant, that is at page 561 of the bundle, the claimant said:

"The offer letter is the sum £60,000 which was never sent to me or my solicitor."

The solicitor he was referring to acting for him at the time was Fort & Co. Therefore, at the time he wrote the letter of 15^th December 2000 the claimant was of the view that Fort & Co, like him, had no knowledge of the Calderbank offer.

19. I will set out in more detail later in this judgment the basis upon which I reach the conclusion that if it had acted appropriately the defendant would have advised Mr Di Matteo not to pursue a claim against Fort & Co. In the absence of other evidence that Fort & Co knew of the Caldebank offer, the letter of 15^th December 2000 would have made it difficult to pursue a claim against that firm. On the relevant evidence I conclude that, whilst the claimant would have pursued his claim against Charsley Harrison, he would not have pursued a claim against Fort & Co.
20. Has the claimant lost something of value? First, did the claimant's claim have more than a negligible prospect of success? I bear in mind the dictum of Simon Brown LJ in Mount v Barker Austin [1998] PNLR 493 in which he emphasised the evidential burden which is on a solicitor who, having acted for a client on an action which is struck out, then tries to turn around and maintain that the action stood no chance of success. I remind myself that I am not engaging in the trial within a trial, but making an assessment of whether the action against Charsley Harrison had more than a negligible chance of success. If so, what chance there was of establishing the three critical elements referred to in paragraph 9 above in assessing such a chance.
21. First, what was the chance of establishing whether Charsley Harrison and/or Fort & Co received the Calderbank offer? The Calderbank letter of 20 January 1999 was sent to solicitors Barrett & Thomson. Mr Di Matteo gave his authority to Barrett & Thomson to transfer his files to Paul Spooner of Charsley Harrison. Mr Matharoo of Barrett & Thomson gave evidence that he wrote to Kidd Rapinet Solicitors, then acting for the ex wife, on 21 January 1999 after receiving the two letters of 20 January 1999, one of which was the Calderbank offer. He wrote that the file of papers had been transferred to Charsley Harrison on 4 January 1999 and that they, Barrett & Thomson, had forwarded the letters of 20 January 1999 to them. There was no complaint that the original file sent on 4 January 1999 by Barrett & Thomson had not reached Charsley Harrison.
22. There was an error in the DX number ascribed to Charsley Harrison by Barrett & Thomson in their letter to Kidd Rapinet of 21 January 1999. It was Kidd Rapinet's own DX number that was put in the letter as being that of Charsley Harrison. I cannot infer from this that Barrett & Thomson would have sent Kidd Rapinet's own letters back to them. Mr Matharoo, who had conduct of this matter, gave evidence that the letters addressed to Charsley Harrison were forwarded to them correctly addressed under cover of a 21 January 1999 letter and were not returned by the DX.
23. There is no reason, in my judgment, to suppose that subsequent correspondence would not have been properly addressed to Charsley Harrison, as the original file of papers sent under cover of letter of 4 January 1999 appears to have reached its destination. There is no evidence to the contrary.
24. Mr Spooner of Charsley Harrison had conduct of the case of Mr Di Matteo. Mr Di Matteo gave evidence that he was asked to visit Mr Spooner in his office. He was in the middle of reorganising his office. He had a pile of papers on his desk and, according to the evidence of Mr Di Matteo, Mr Spooner said to him "I have a letter from your wife's solicitor". He could not find the letter.
25. Mr Spooner gave evidence. He said that he had received Mr Di Matteo's
    file from Barrett & Thomson. Mr Di Matteo came to see him on 3 February 1999. Mr Spooner says that he did not have and had never received a Calderbank letter from Kidd Rapinet. He received a letter dated 17 February 1999 from Kidd Rapinet. That is at page 485 of the bundle. In that letter Kidd Rapinet write:

"We have been informed by Messrs. Barrett & Thomson that their file of papers in relation to the above named client was transferred to you on 4^th January 1999. They also confirm that they have forwarded to you our letter of 20^th January. We are extremely surprised that we have not had the courtesy of a notification from you that you are now instructed by Mr Di Matteo and we would now be grateful if you would confirm forthwith the present position with regard to your acting in this matter."

26. Mr Spooner did not reply to that letter. Mr Spooner was clearly on notice that a letter of 20 January 1999 had been forwarded to Charsley Harrison. According to the evidence of Mr Matharoo both letters of 20 January 1999 from Kidd Rapinet, one of which was the Calderbank letter, were forwarded to Charsley Harrison at the same time. If Mr Spooner had not received any letter of 20 January 1999 from Kidd Rapinet he would no doubt have said so. He did not. I infer from the evidence that Charsley Harrison, in particular Mr Spooner, did receive one letter of 20 January 1999. Since two letters of 20 January 1999 were sent to Charsley Harrison together, I infer that the Calderbank offer was also received by Mr Spooner at Charsley Harrison.
27. On 19 February 1999 Mr Spooner had a telephone conversation with Mr Comley of Kidd Rapinet. Mr Spooner gave evidence about that telephone conversation. In accordance with paragraph 6 of his written statement, he said:

"On 19 February 1999 I had a telephone conversation with Kidd Rapinet about the case. From my point of view this was largely a fact finding conversation. The question of the claimant's Italian property was discussed and his financial disclosure or lack of it. I have no recollection of the question of a Calderbank offer being mentioned at all in the course of the conversation. I am aware of the significance of a Calderbank offer and would, if it had been mentioned, have referred it to the claimant.

I subsequently received another 'chasing letter' from Kidd Rapinet dated 2^nd March 1999 referring to their open letter of 20^th January."

28. There was also reference to a letter addressed to Charsley Harrison by Kidd Rapinet, dated two days before this telephone conversation.
29. The date of the statement made by Mr Spooner for the purpose of these proceedings is 20 January 2009, therefore in it he is giving an account of events nearly ten years ago.
30. In the course of investigating Mr Di Matteo's negligence claim, the defendant contacted Kidd Rapinet. Mr Comley of Kidd Rapinet wrote on 25 October 2000 to the defendant regarding the telephone conversation of 19 February 1999. In that letter, which is at page 811 of the bundle, Mr Comley wrote of the wrong DX box number being ascribed to Charsley Harrison in the letter Barrett & Thomson wrote to Kidd Rapinet:


"I am, however, certain Messrs. Barrett & Thomson did not compound this error by forwarding the letters of 20^th January back to ourselves as opposed to Messrs. Charsley Harrison and if that had happened the address would have been corrected and the documents forwarded on to Messrs. Charsley Harrison. It seems clear, therefore, that Mr Di Matteo's file was sent to Messrs. Charsley Harrison on 4^th January and that our letters of 20^th January, which included the crucial Calderbank offer, were forwarded by Messrs. Barrett & Thomson to Messrs. Charsley Harrison immediately they were received by them.

In the light of that letter I initially waited to be contacted by Messrs. Charsley Harrison and to be served with notice of change of solicitor and for matters to proceed. In fact I heard nothing and accordingly I wrote on 17^th February to Messrs. Charsley Harrison clarifying the position. I enclose a copy of that letter and I would concede there is a typing error the third line in that the reference to the letter of 20^th January is singular only as opposed to plural. No reply was received to that letter although I have a note of a long telephone conversation with Mr. Spooner on 19^th February which took the form of a general discussion about the case and concluded that they would get back to me as soon as possible. At this distance I am unable to remember specifically whether I discussed the without prejudice offer that had been made with Mr. Spooner. I think it extremely unlikely that I would not have raised that issue with him and, indeed, the more I think about and consider that telephone conversation I believe I probably did refer to the settlement proposal which was on the table. My note of the conversation is not detailed and, indeed, I enclose a copy of my very brief time recording attendance note.

In fact I did hear nothing further from Messrs. Charsley Harrison and wrote to them on 2^nd March chasing matters and I enclose a copy of that letter. Again I received no reply and I wrote again on the 30^th March 1999.

It is perhaps significant that both of these letters which are open themselves refer specifically to our open letter of 20^th January 1999 which in my view implies there was also a without prejudice letter of the 20^th January as otherwise the reference to an open letter on that date is superfluous."

31. Mr Spooner says that he did receive another letter from Kidd Rapinet regarding a 20 January 1999 letter. It does not appear that he replied to it and that is consistent with the evidence of Mr Comley.
32. On this evidence I find that it is likely that Mr Di Matteo would have established that Charsley Harrison had received the Calderbank offer. So far as that evidence is concerned, I have referred to the evidence of Mr Matharoo and the fact that he sent the two 20 January 1999 letters, including the Calderbank offer, to Charsley Harrison. I find that it is likely that that covering letter enclosing the letters of 20^th January was correctly addressed. The file of papers sent by Barrett & Thompson clearly had arrived with Charsley Harrison. Those had been sent a short time before on 4 January. There is no reason to suppose the second letter of 20 January 1999 to Charsley Harrison would not have reached its destination.
33. So far as the conversation of 19 February is concerned, I prefer the evidence regarding that recorded in Mr Comley's letter which was written under two years after the event, to that of Mr Spooner, which was written ten years after the event.
34. It is also to be observed that the defendant on 5 April 2002 wrote to Charsley Harrison as follows:

"The overwhelming evidence is that this correspondence [and that includes the Calderbank offer] was sent to your firm at a time when a succession of letters went unanswered as the correspondence between Kidd Rapinet and Barrett & Thomson shows, in other words, it was not simply the vital Calderbank offer which was ignored."

Accordingly, I find that it is very likely that the Calderbank offer was received by Charsley Harrison.

35. Secondly, what were the chances of establishing that Fort & Co received the letter? Fort & Co were retained by Mr Di Matteo in June 1999. They wrote to Mr Di Matteo suggesting a Calderbank letter. An ancillary relief hearing was due to take place on 5 October 1999. I would have expected to see reference to a Kidd Rapinet Calderbank letter if Fort & Co had it. There was none. Instructions to counsel prepared by Fort & Co do not mention any Calderbank offer from the wife's solicitors and say that agreement has not been reached at this stage.
36. Mr Di Matteo gave evidence that he heard for the first time of the Calderbank offer at the end of the hearing before the district judge. This is not in dispute. I have already referred to the letter which he wrote to the defendants in which he said that neither he nor Fort & Co knew about the letter.
37. It is likely that Mr Di Matteo would have known by their reaction after the reference at the conclusion of the hearing before the district judge to the Calderbank offer whether Fort & Co or counsel instructed by them had known about it.
38. Unfortunately, there is no transcript of any exchange at the conclusion of the hearing before the district judge on the issue of costs, nor is there clear evidence other than that there was a discussion about costs. However, on the evidence, I find that it is most unlikely that it would have been established that Fort & Co received the Calderbank offer.
39. I also find that, having regard to the claimant's then belief that Fort & Co were unaware, as he was, of the Calderbank offer, if Mr Di Matteo had been properly advised by the defendant, he would not have pursued a claim against Fort & Co.
40. Would Mr Di Matteo have made a settlement offer of £40,000? A number of Mr Di Matteo's witnesses spoke of helping him write letters. Mr Di Matteo's first language is not English. His friends and others around him rendered invaluable assistance by writing letters at his suggestion and perhaps dictation. They also perhaps helped to phrase them. Those friends helped him draft and write numerous letters during the course of his divorce proceedings.
41. Mr Edwards has known Mr Di Matteo for 30 years. He wrote out or drafted numerous letters from the claimant to his former wife. Although no figures were mentioned, Mr Edwards gave evidence that they were all along the lines that he, Mr Di Matteo, wanted to settle matters with his former wife.
42. Mr Di Matteo gave Mr Shinner of the defendant copies of the letters to his former wife. In his evidence Mr Edwards said that originally Mr Di Matteo did not want to offer his ex wife anything, but then "reality set in and his view became almost the opposite".
43. Mr Edwards' view was that had Mr Di Matteo been made aware that suitable settlement terms had been offered he would have negotiated.
44. James Eric James, who has known Mr Di Matteo for 35 years, also helped him write many letters to his previous solicitors. He could recall one letter to Mr Di Matteo's ex wife. The gist of it was that he wanted to meet her and come to some kind of settlement.
45. Anne Simon, a retired teacher who has known Mr Di Matteo for at least 30 years, gave evidence. She was one of those who helped him write letters to his ex wife. The gist of all those letters was that he wanted to settle her claim or wanted to meet his ex wife to talk about a settlement. It appears that correspondence reached such a stage that Mrs Di Matteo must have asked her solicitors to ask Mr Di Matteo to desist from writing letters to her. No settlement figure was put forward in the letters from Mr Di Matteo. The only figure he put forward as an offer to settle before the hearing before the district judge was £15,000. This was received one day before the hearing.
46. Mr Di Matteo says that this figure was put forward by his solicitors, Fort & Co. He reluctantly went along with it. They, however, wrote that Mr Di Matteo insisted on putting forward what they regarded as an inadequate Calderbank offer in that sum.
47. Instructions to counsel for the hearing before the district judge suggested that a sum of some £22,000 was due to Mrs Di Matteo. Also it is said by Mr Trigger that, as a matter of principle, Mr Di Matteo considered and maintained that his Italian property, worth perhaps some £40,000, in addition to personal injury compensation of some £60,000, should not be taken into account when determining the assets to be given to his former wife. It is submitted that, therefore, Mr Di Matteo would have not made a reasonable offer to settle, even if he had known of the Calderbank offer of £60,000.
48. Mr Trigger submitted that Mr Di Matteo wanted to pursue the points regarding the Italian property and the personal injury award as far as the Court of Appeal. Also, Mr Trigger submits that it is relevant to take into account Mr Di Matteo's reaction once he knew of the Calderbank offer of £60,000. It was only after the £100,000 award had been made by the district judge and Mr Di Matteo first learned about the Calderbank offer, that he suggested that he might pay his former wife some £40,000. It is said that that was an entirely unrealistic proposal.
49. Further, it is said by Mr Trigger that Mr Di Matteo's attitude towards the likelihood of Mrs Di Matteo accepting a sum less than £60,000 prior to the hearing before the district judge was fanciful and that he was deluding himself.
50. In his particulars of claim and in his statement Mr Di Matteo says:

"Had I been made aware of the Calderbank offer of £60,000.00, I most certainly would have settled the case. At the very least I would have gone back with a counter offer. I believe my wife would have accepted a counter offer of £40,000.00"

51. I accept that Mr Di Matteo considered that his personal injury compensation and the value of Italian property should be left out of the calculation, but I also accept the evidence of Mr Di Matteo's friends that he wanted to settle and was becoming realistic.
52. In considering whether Mr Di Matteo would have been likely to make a realistic offer I take into account the letter from his then solicitors, Fort & Co, that it was Mr Di Matteo who wanted a lower offer to be made immediately prior to the hearing on 5 October, and that they gave instructions to counsel which referred only to an offer of £22,000.
53. However, knowing that Mrs Di Matteo had made an offer may, in my judgment, have made a difference to Mr Di Matteo's approach to a settlement and to the need to make a reasonable offer.
54. In my judgment, there is a prospect that if he had known of the Calderbank offer, the claimant would have made a counter offer of £40,000 prior to the hearing before the district judge. I assess the prospect that Mr Di Matteo would have made such an offer prior to the hearing before the district judge at about 25 per cent.
55. Would Mr Di Matteo's ex wife have accepted £40,000? Mr Comley said that £60,000 was pitched at the lowest. He would have advised Mrs Di Matteo not to accept £40,000.
56. Mrs Simon gave evidence that Mrs Di Matteo had told her that she wanted about £50,000. This may have been in 1998 but she could not be sure as to when Mrs Di Matteo said this to her. In my judgment it was a fair to assume that Mrs Simon would have told Mr Di Matteo that his ex wife wanted this sum.
57. Mr Petruccelli gave evidence that he was a customer of the salon at which Mrs Di Matteo worked as a hairdresser. She had said to him that Mr Di Matteo did not turn up to court. If he had turned up they, meaning she and her former husband, could end up reaching agreement. Mrs Di Matteo told Mr Petruccelli that she had made an offer to Mr Di Matteo, and that she would accept £60,000 but had received no response. She went on to say that she would in fact accept as little as £40,000 because all she wanted to do was to buy a flat.
58. Mr Petruccelli could not remember exactly when this conversation took place. He gave evidence that he had told Mr Shinner of the defendants what Mrs Di Matteo had said to him and that he could have found out the date of the conversation at the time. There were events to do with the hairdressing salon which would have enabled him to establish the date of the conversation. In the context of what Mrs Di Matteo said to Mr Petruccelli the conversation must have taken place after 20 January 1999.
59. Mr Petruccelli had given the information about his conversation with Mrs Di Matteo to Mr Shinner of the defendants. He said that Mr Shinner had made notes but had not asked him to sign a statement. Mr Shinner said he would contact him if he needed him. Mr Shinner did not do so.
60. I accept the evidence given by Mrs Simon and that given by Mr Di Matteo's friends. They struck me as, not just very good friends of Mr Di Matteo, but honest and straightforward people who were here to tell the truth about what they knew of relevant matters.
61. In my judgment, on the evidence, there was a chance, which was more than a speculative chance, but not a substantial chance, that Mrs Di Matteo would have accepted £40,000 in settlement prior to the hearing before the district judge. I assess that chance at about 20 per cent.
62. Overall, therefore, I conclude that Mr Di Matteo has lost a chance of value. I also take into account advice given to him by the defendant about the prospects of his negligence/breach of contract claims.
63. In his oral evidence Mr Shinner of the defendant did not accept that he always said that Mr Di Matteo had a good case against his former solicitors. A conference had been held with counsel at a time when an appeal in the ancillary relief proceedings was still ongoing, but also the issue of negligence/breach of contract claims against the former solicitors was in consideration. Mr Shinner had pointed out the difficulties of Mr Di Matteo's claim against his former solicitors.
64. Mr Shinner wrote to Mr Di Matteo on 3 January 2002 regarding the two matters. As to the negligence claim against his previous solicitors are concerned, Mr Shinner wrote:

"The case against your previous solicitors is by no means 'cast iron', although it is reasonably strong given their failure to address a number of letters which they received."

In a clearly reasoned passage, Mr Shinner sets out the basis upon which he reaches that conclusion and sets out the three steps in proving negligence. Then he goes on to discuss the timetable for proceedings.

65. It appears that the defendant did not proceed fully to prepare for such a negligence claim against Mr Di Matteo's former solicitors. The lack of contact with Mr Petruccelli who had material evidence to give is perhaps an illustration of that. A claim was issued as the limitation period was reaching its expiry. Mr Shinner in evidence said "that is why that claim was issued at that time".
66. In light of the advice which the defendant gave to Mr Di Matteo, which does not seem to have been modified, resiled from or departed from in any way, it appears that the defendant was of the view, and certainly led Mr Di Matteo to be of the view, that he had a reasonable chance of success in his negligence claim, although his case was by no means cast iron and that he had a number of hurdles to overcome.
67. For reasons given earlier in this judgment I confine these observations on assessment of the value of the loss of a chance to the loss of the chance of succeeding in his negligence/breach of contract claim against Charsley Harrison. Taking into account the three elements referred to in paragraph 9 above which have a bearing on the assessment of the value of the loss of the chance of succeeding in against his previous solicitor I find that Mr Di Matteo should recover overall 25 per cent of full liability.
68. As to quantum and matters of principle, it was submitted by Mr Trigger that there should be a deduction for costs which Fort & Co would have recovered by reason of the likelihood of any claim against Fort & Co being dismissed. Although I was not taken to the passage relied upon, reference was made to the judgment of Neuberger J, as he was then, in the case of Harrison v Bloom Camillin (a firm) (No 2) (1999) (2001) PNLR 7. In fact, Neuberger J considered the impact of the probable failure of parts of elements of a claim being brought by a claimant who has lost the chance of pursuing it. That is not the situation in this case. In any event, I have found that properly advised the claimant would not have pursued a claim against Fort & Co.
69. Accordingly, no deduction from the quantum of damages is to be made in respect of the costs of a claim against Fort & Co, which, on my finding, would not have been pursued.
70. The basis upon which damages should be awarded is the difference between the sum of £100,000 together with the costs of about £2,000 which Mr Di Matteo was ordered by the district judge to pay his former wife and £40,000, which is the sum that Mr Di Matteo says that he would have offered and, he submits, would have been accepted. This sum is to be reduced as set out below.
71. In the particulars of claim additional amounts are also claimed. Those are the costs of the appeal launched by Mr Di Matteo against the order of the district judge and the costs of extensive correspondence with Mrs Di Matteo's solicitors in attempt to avoid an appeal and a subsequent appeal to the Court of Appeal. Also, there is a reference to a claim for the difference between £40,000 and £150,000, being the sum for which Mrs Di Matteo's claim was ultimately settled.
72. In my judgment, it is not correct to base any damages on the difference between £150,000, which was the ultimate settlement sum, and £40,000.
73. I accept submissions made by Mr Trigger that the reason for the increase in liability of Mr Di Matteo from £100,000 to £150,000 was not caused by actions of the defendant and was not a foreseeable consequence of any breach of contract or negligence.
74. The reason for the increase in the sum paid to Mrs Di Matteo was the increase in property values between the date of the order of the district judge and the final settlement with Mrs Di Matteo. The delay in settlement of Mrs Di Matteo's claim during which property prices rose was the time taken while Mr Di Matteo pursued an appeal against the order of the district judge.
75. If he had paid the amount of £100,000 ordered on 4 October 1999, the liability of Mr Di Matteo to pay his former wife crystallised at that time. In my judgment the increase in his liability thereafter resulted from supervening events for which the defendant is not to be held liable.
76. The costs of the appeal from the district judge and of the correspondence with Kidd Rapinet were not caused by the action of the defendant. They were incurred because of Mr Di Matteo's decision to pursue an appeal. For reasons given as to why the sum from which £40,000 is to be deducted is the sum of £100,000 ordered by the district judge to be paid and not 150,000, costs incurred in pursuing an appeal from his order are not recoverable by Mr Di Matteo.
77. Accordingly Mr Di Matteo is entitled to recover the sum of £60,000 together with the costs of the hearing before the district judge ordered to be paid by Mr Di Matteo reduced by 25 per cent. Interest at the appropriate rate is awarded on the sum.
78. I give judgment for the claimant in the sum of £15,500 plus interest.