“Loss of a chance” is a hot topic in professional negligence at present. Recent disputes over the doctrine have included the debate over whether a Claimant has to prove that he could honestly have brought his “lost” claim on the balance of probabilities or whether his honesty merely falls to be considered when deciding whether his case has real and substantial prospects of success. In February, the Supreme Court decided that the Claimant had to prove his honesty on the balance of probabilities.
Last week’s judgment in Brearley & Ors v Higgs  3 WLUK 463 considers an allied but opposite point: what does a Defendant have to prove about a Claimant’s dishonesty or misconduct? In particular, does a Defendant to professional negligence proceedings who wishes to rely on a third party’s allegations of wrongdoing against a Claimant have to positively asserts the truth of the those matters alleged by the third party? In Brearley the Claimants applied to strike out parts of a defence based on allegations made by the Claimant’s former employers. The application was refused by the Master and then defeated on appeal. The case shows that a defendant does not have to positively assert the truth of matters emanating from a third party in order to pray them in aid.
Helen Evans of 4 New Square (instructed by RPC and led by Michael Pooles QC) represented the Defendants.
The decision is considered by Clare Dixon of 4 New Square here.