Claim for loss of chance to recover damages for fatal accident
We acted for Mrs D whose husband of 25 years had been killed in a fire in their home on 13 January 2001. The investigators found that the fire was caused by a faulty fridge-freezer which the couple had purchased from a company called TMR Domestic Appliances Ltd (“TMR”). Mrs D instructed Sanders and Co Solicitors in Essex to deal with the administration of her husband’s estate. As the probate came to an end a solicitor at Sanders and Co suggested that she sue the retailer of the fridge on a “no win no fee” basis. Mrs D claimed that she was told that the case would not cost her “a penny”. She says that it was also explained to her that if she won the case against the retailers of the fridge, then Sanders and Co’s fees would be paid by the retailer, whilst if she lost the claim then no fees would be payable by her because it was a “no win – no fee” agreement.
Legal proceedings were issued against the retailer which did not defend the claim. A judgment was obtained by Sanders and Co in 2005. Unfortunately the reason why Mrs D’s claim had not been defended was that the retailer had no assets or insurance and was in fact a defunct company..
Mrs D did not hear further from Sanders and Co until August 2008 when she received a letter from them explaining that they had tried to enforce the Judgment but that they had failed to recover any damages or costs whatsoever. Nonetheless, Sanders and Co claimed that they had “won” the case for Mrs D, because they had obtained a judgment against the defunct company, and so she must pay their fees of £73,441.44. The matter was passed to a solicitor at Sanders and Co called Matthew Reach who issued legal proceedings against Mrs D.
Mrs D was referred to us by a partner at Berrymans Lace Mawer. We took immediate steps to arrange for a fully pleaded Defence to be served on Sanders and Co. We defended the claim on several grounds including that Mrs D was not told that she would have to pay the legal costs if a judgment was obtained but no damages were recovered. We also advised Mrs D to counterclaim against Sanders and Co for losing her the chance to pursue the claim. We alleged that if Sanders and Co had pursued the matter competently they could have enforced the judgment against the directors of TMR or a successor business (which was operating from the same premises) and Mrs D would have recovered her costs and damages.
Shortly before trial Sanders and Co dropped the claim for their fees of £73,441.44 and, in addition, agreed to pay Mrs D £27,500 plus her legal costs. Therefore when she came to us, Mrs D faced a claim against her for over £73,000, but walked away £27,500 to the better.