The High Court has allowed an appeal by a bereaved daughter who alleged a law firm had not handled her father’s inquest correctly.
Gabriele Shaw brought the professional negligence proceedings against national firm Leigh Day claiming that the solicitors failed to articulate certain arguments during the 13-day inquest in January 2011.
Shaw’s father, William Ewan, died in 2007 following a surgical procedure to implant a trans-aortic valve but the coroner made no adverse findings against University Hospital of Leicester NHS Trust or the consultant cardiologist who performed the operation.
The court heard Shaw and Leigh Day had an increasingly fractious relationship over the level of service and the cost, and that she was critical of its handling of the inquest and subsequent clinical negligence claim, for which Ewan’s estate has since been awarded damages of almost £13,700.
Her complaints centred on the alleged failure by Leigh Day to procure sufficient documents and other evidence about clinical trials on the valve, to enable leading counsel to put all relevant facts before the coroner. Leigh Day strongly denies any wrongdoing and vowed to fight the claim if it was allowed to proceed.
In Shaw v Leigh Day (a firm), The Honourable Mrs Justice Andrews DBE said the district judge who rejected Shaw’s professional negligence claim in May 2015 had rightly held it was not, and could not have been, part of Leigh Day’s retainer to obtain a particular outcome at the inquest.
But Andrews disputed the point that Shaw could not make a claim within the scope of exceptional cases in which damages for distress could be recovered.
Leigh Day had argued that a client’s distress did not justify an award of damages to compensate for the emotional impact of a solicitor’s behaviour.
But Andrews said the contract between client and firm was concerned with ensuring that the circumstances leading up to Ewan’s death were sufficiently investigated to provide the family with answers.
The judge said inquests have an ‘emotional element’ that is unique, and absent from other legal processes. If any solicitor retained to put the necessary materials before the coroner and jury did not carry out their job with sufficient diligence, the client would never receive the comfort they needed.
Andrews added: ‘The client is still expecting an answer based on a satisfactory factual investigation, an answer that will give him or her the peace of mind or sense of satisfaction that comes with knowing that the matter has been properly and thoroughly investigated, and that is the very reason that they engage a lawyer to look after their interests.’
The judge allowed the appeal based on the distress argument and also on whether fees paid to Leigh Day were wasted expenditure, and whether the claim should be rejected because it was worth only nominal damages.
She said the decision to strike out the claim was based on ‘fundamental legal error’ and must be set aside. The matter was remitted to a district judge for a case management hearing at which further directions should be considered.