My Claim

My Claim was for Loss of Chance Negligence against Counsel who drafted a past Malicious Prosecution (MP) claim on my behalf in 2010. Two elements were in question, charging without probable cause and malice (includes improper motive). Counsel's issued claim only stated 'malice could be inferred from charging without probable cause', which could easily be defeated by case Law.

This MP claim was subject to an application from the CPS to dismiss it for 'no evidence of malice'. So I arranged a conference to inform Counsel of evidence in the CPS disclosures. Although he agreed to add a 'declared motive', he failed to submit or advise submission of this evidence, or amend his Particulars of Claim, leaving a defective claim before the Court. This was later dismissed in 2011 for 'no evidence of malice' with no chance to appeal and cost consequences.

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For Malicious Prosecution, it is simply necessary to show one piece of evidence that can infer improper motive (as low as something the Prosecutor said that wasn't quite right). In total up to eleven pieces of evidence, showed statements by the prosecutor of non belief in guilt, intent to prosecute non criminal acts, statements of knowledge of law that prevented prosecution followed by avoiding the Law, collusion with witnesses and Police to obtain the result wanted, improper influence of witnesses to be victims and issue statements to prosecute with knowledge they were not harmed or victims of crime, and obvious knowledge of law that prevented prosecution - all valid evidence in the tort. This was substantial evidence which far exceeded that required for a claim. The claim was effectively proved, since the Prosecutor knew he could not bring the charges. This evidence should have been submitted.  Counsel's failure to do so not only caused loss of chance, but dismissal of the claim without chance of appeal.

This was a Bang to rights Case for Loss of Chance Negligence. Elements of ‘Counsel informed’, ‘forseeable dismissal’ and 'causation' were held.

Dismissal of the element 'no probable cause to charge' in 2011 was not in issue for these reasons.

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Negligence Claim proved by Law. The proof burden for Loss of chance Negligence was "chance of a better outcome".

The evidence I informed Counsel of was material evidence of Malicious Prosecution. Therefore Counsel breached his duty of care (for failing to give the best possible chance) and caused both loss of chance to argue this evidence (loss of a legal right) and dismissal of the claim (without chance of appeal) in 2011. Evidence also defeated the reason (case Law Thacker v DPP) the CPS argued to dismiss the claim in 2011, confirming this.

Case Law was in my favour in confirming that a Court should not consider the chance of success of the lost opportunity to determine LOC Negligence (Perry v Raleys Solicitors [2017]). Evaluation of lost chance is reflected in proportional damages.

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• The compelling evidence that the Prosecutor stated he knew a finding in case Law (Chappell) that prevented the charges, and Counsel's failure to submit neither this Case Law for 'no probable cause', or this evidence of 'charging without true belief in guilt', proved Loss of Chance Negligence outright. Note: This was not a point of the Hearing in 2011. The CPS argued a different point on Chappel.

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• Had Counsel submitted this, the CPS could not have argued 'probable cause'existed',  nor 'no evidence' to dismiss the claim in 2011, and would likely have settled.

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Click Here for Claimant's eleven Particulars for Loss of Chance Negligence - evidential particulars for Malicious Prosecution with the important non submitted evidence and inferences to support them. 

The inferences show how the evidence could have been argued to show or infer Improper Motive, so proving material evidence in Loss of Chance Negligence for Counsel's non-submission. Claimant also submitted a particular for bad advice and failure to submit reasons for no probable cause.