Feltham v Bouskell

In an otherwise straightforward application of White v Jones [1995] 2 AC 207, the judge found a solicitor liable in negligence to a disappointed potential beneficiary for failing to prepare a will according to the testatrix’s instructions before her death. It was clear on the facts what provisions the testatrix would have made had the solicitor acted correctly. One issue before the judge was whether, when it came to proving what provisions the testatrix would have made had the solicitor acted with due expedition, her hypothetical conduct was to be assessed on the balance of probabilities or as a loss of a chance.

The leading decision, Allied Maples v Simmons & Simmons [1995] 1 WLR 1602, held that, where the conduct was that of a third party, the basis of assessment was loss of a chance. However, where it was the claimant’s hypothetical conduct at issue, it was to be assessed on the balance of probabilities, because the claimant had actual knowledge of what she might have done. The judge recognised that, if this applied to ‘White v Jones claims’, it would place a disappointed beneficiary in a better position than personal representatives bringing proceedings for breach of duty against a solicitor on the testatrix’s behalf. In the former, the testatrix would be a third party and so the disappointed beneficiary would have to establish a loss of a chance. In the latter she would effectively be the claimant, leaving the personal representatives to prove the testatrix’s conduct on the balance of probabilities.

Nevertheless, the judge decided that the hypothetical conduct of the testatrix ought to be assessed on a loss of a chance basis. Allied Maples could be distinguished. Personal representatives could not be said to have personal knowledge of what the testatrix would have done, had the solicitor performed his retainer.

The judge’s reasoning suggests that in all such cases the hypothetical conduct of the testatrix should be assessed as a loss of a chance, irrespective of whether the claim is brought by disappointed beneficiaries or personal representatives. However, his discussion was obiter. Until clarification from the Court of Appeal, this decision will remain the most useful guidance to practitioners.