Professional negligence claims—overview

Mitigation applies to all damages claims The notion that a claimant should mitigate their loss applies to every civil claim for damages, whether brought in contract, tort, or other recognised circumstances, although much of the case law on mitigation has arisen from contractual disputes. Consequently, even once causation and remoteness are established—subjects covered in practice notes on contractual breach, and on tort and negligence—the amount recoverable may still be affected if the claimant has not mitigated their loss. In essence, the innocent party cannot obtain damages for loss they could have avoided but did not, whether through unreasonable conduct or by failing to act. The key issue in mitigation is which steps it was reasonable, and which it was not, for the claimant to take. This is often referred to as the duty to mitigate or the rule on mitigation. What is the rule on mitigation? The rule on mitigation comprises three distinct components: The innocent party should take all reasonable measures to lessen their loss...

What is an estoppel? As Lord Denning MR explained in Moorgate Mercantile v Twitchings (page [323]), estoppel is a rule of justice and equity which, in essence, means that where a person, through words or conduct, has led another to accept a particular state of affairs, he will not be permitted to resile from it if doing so would be unjust or inequitable. Although the House of Lords reversed Moorgate on its facts, this statement of principle was not displaced. In some cases, a party’s silence or inaction (that is, acquiescence) can ground an estoppel just as effectively as an express assurance or representation. As Calver J noted in Active Media v Burmester, Duncker, echoing the Court of Appeal in Ted Baker v Axa Insurance, the acquiescence doctrine arises where a reasonable person in the shoes of the party invoking the estoppel would anticipate the other party—acting honestly and responsibly—to take steps to make his position plain (at [82]). For a broader understanding of the general doctrine of estoppel, see also the following...

This Practice Note considers the standard of proof in civil claims based on the defendant’s alleged fraud. It addresses the test for dishonesty (per Ivey v Genting) and identifies when a court may draw an inference of dishonesty (and therefore fraud) from facts it finds proved. This discussion is separate, albeit connected, to the issues of pleading fraud and dishonesty—see Practice Note: Civil fraud—pleading fraud and dishonesty. This Practice Note considers: the standard of proof in civil fraud cases dishonesty in a civil context whether recklessness equates to dishonesty, and the concepts of ‘targeted suspicion’ and ‘blind-eye knowledge’ evidencing and proving dishonesty in civil claims, including: the general approach to evidence in fraud cases, whether the alleged fraud ought to have been obvious, the witnesses (their credibility or their absence) and the position of third parties whether dishonesty can be inferred in civil fraud claims the use of expert evidence to assess dishonesty the impact of criminal convictions on civil fraud claims what follows when awarding costs where dishonesty is established the consequences of pursuing a claim ‘dishonestly’ For guidance on...

What is a res judicata? A res judicata is a determination by a court or tribunal with jurisdiction over the cause of action and the parties, which finally disposes of the issues decided so they cannot be litigated again by those bound, save on appeal. Final judgments entered by default or by consent fall within this concept, whereas rulings on purely procedural points and any decision lacking finality do not. The doctrine’s aim is to bring litigation to an end and shield parties from being harassed by the same dispute twice. in personam—binds the parties and their privies in rem—binds all persons, privy or otherwise (ie a judgment binding the whole world) A party may rely on res judicata: as an estoppel to defeat an opponent’s claim or defence; and/or as the basis of their own claim or defence For guidance on the key requirements for establishing a res judicata, see Practice Note: Key requirements to establish a res judicata. Res Judicata—Lord Sumption’s six general principles (Virgin Atlantic) In Virgin Atlantic, Lord Sumption outlined six general principles that fall...