As Christmas approaches, litigators may wish to consider the Court of Appeal's recent decision in Sandra Blower v GH Canfield LLP [2025] EWCA Civ 1627 and the importance of pleading and establishing causation in professional negligence claims.
Facts
Mr Blower had been adjudged bankrupt in May 2014, following which his trustee in bankruptcy initiated proceedings against him and his family. GH Canfield LLP (Canfield) acted for Mr Blower, and various members of his family. A mediation took place in December 2015 attended by Mr Blower, a solicitor from Canfield, the trustee in bankruptcy and their solicitor. Other members of the family were invited but did not attend, although Mr Blower's daughter Kelly was available remotely. Mr Blower confirmed that he could speak for the members of his family and had authority to settle the litigation. A settlement was reached with the family members agreeing to pay the trustee in bankruptcy £1.5 million (inclusive of costs) (the Settlement Agreement).
On 12 November 2021, Mrs Blower commenced proceedings against Canfield for losses suffered by her and Kelly, allegedly caused by Canfield's negligent advice in relation to the Settlement Agreement. Mrs Blower alleged that, if Canfield had properly advised her, she would not have agreed to the Settlement Agreement in those terms. She also alleged that there was a conflict of interest in Canfield acting for Mr Blower and other family members. Mrs Blower's pleaded loss at c.£5 million.
In November 2024, the High Court dismissed Mrs Blower's claim on the basis that (i) Canfield had not been negligent (ii) Canfield had not acted in conflict (iii) her case on causation and loss had not been adequately pleaded and articulated at trial and (iv) in any event, her case failed on causation grounds.
Mrs Blower was subsequently granted permission to appeal on two grounds that His Honour Judge Paul Matthews KC had erred by:
- Failing to consider whether Canfield were acting under a conflict of interest
- Finding that Mrs Blower had not pleaded a coherent case on causation of loss, and even if there had been deficiencies in her pleaded case, the Court should have considered the issue of causation because it was just to do so
Court of Appeal decision
Conflict of interest
The Court of Appeal dismissed this ground on the basis that the first instance judge had dealt with the conflict issue in the way it had been narrowly pleaded and presented to him, and reached a conclusion which he was entitled to reach. The subsequent arguments raised by Mrs Blower on appeal were either not available or did not advance the matter. Lady Justice Asplin also commented that, even if there had been a conflict of loss, she did not consider it would have caused the alleged loss.
Causation
The Court of Appeal agreed that Mrs Blower's pleading of causation and loss was insufficient, and it was not possible to make up those deficiencies by implication. Mrs Blower had also not sought to make any amendments to her case on causation at any stage and it was not open for Mrs Blower to attempt to run a different causation case (on a lost chance basis) on appeal.
In addition, on the evidence before him, the first instance judge had made a finding of fact that neither Mrs Blower nor Kelly would have refused to enter into the terms of the Settlement Agreement and the Court of Appeal could not now overturn this finding.
Commentary
This case emphasises the importance of causation and the essential role it plays in determining professional negligence claims. There is therefore a need to formulate and articulate a clear case on causation throughout the proceedings and parties cannot rely upon the trial judge to construe alternative arguments that have not been pleaded or permitted. It also demonstrates the Appeal Court's reluctance to allow parties a second bite of the cherry by formulating a new case on appeal, which would undermine the principle of the finality of litigation. And as Lord Justice Lewison reminded us in Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5 at [114], the trial is not a dress-rehearsal. It is the final and last night of the show.
Tim Barr (Partner) and Amaney Ehtash (Solicitor) of DAC Beachcroft and Jonathan Seitler KC and Lemuel Lucan-Wilson of Wilberforce Chambers acted for Canfield.
