Law Report: Claim lost on striking out: Hopkins v MacKenzie. Court of Appeal (Lord Justice Nourse, Lord Justice Mann and Lord Justice Saville). 26 October 1994.

The loss caused to a plaintiff by his solicitor's negligent failure to pursue an action only occurred at the time when the action was finally struck out for want of prosecution, and it was at that time that the plaintiff's cause of action for negligence against his solicitor arose, not at the earlier time when, because of the risk of its being struck out, the initial action's value might be held to have been diminished.

The Court of Appeal unanimously allowed an appeal by the plaintiff, Eric J Hopkins, against the decision of Mr Stewart Boyd QC, sitting as a deputy High Court judge on 28 January 1994, that the plaintiff's claim against the defendant, John Rothesay MacKenzie, was time-barred and should be struck out.

The defendant acted as the plaintiff's solicitor in a medical negligence claim against the Royal National Throat Nose and Ear Hospital in relation to an operation performed in February 1979. That claim was struck out for want of prosecution on 4 February 1986.

On 27 January 1992, the plaintiff began the present claim against the defendant, alleging that through the latter's carelessness he had lost all prospect of recovering damages from the hospital.

The judge concluded that the defendant's alleged failure to maintain and realise the value of the plaintiff's medical claim, despite the risk that the action might be struck out for delay, must have reduced the value of that claim to almost nothing well before 27 January 1986, even though it was struck out a week later; and that the plaintiff's loss therefore occurred more than six years before issue of the writ, so the claim was time-barred.

Adrian Whitfield QC and Andrew Spink (Irwin Mitchell, Sheffield) for the plaintiff; Rupert Jackson QC and Sue Carr (Pinsents & Co) for the defendant.

LORD JUSTICE SAVILLE said the question was whether the plaintiff sustained any loss or damage before his medical negligence action was struck out. The defendant's case seemed to be based on the proposition that loss or damage could be treated as having occurred if it could be shown, as a matter of inevitability or probability, that it would occur. But in his Lordship's judgment, what had to be shown was actual, not future loss or damage, however likely it might be to occur. Until 4 February 1986, the plaintiff had not lost his cause of action. As at 27 January 1986, therefore, it remained in being.

The plaintiff was potentially worse off as a result of the defendant's alleged negligence, since he was likely to lose his cause of action. But until the action was struck out, the plaintiff had not been affected.

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