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.

Start your day with The Independent, sign up for daily news emails
Have you tried new the Independent Digital Edition apps?
News
ebookA unique anthology of reporting and analysis of a crucial period of history
Latest stories from i100
Have you tried new the Independent Digital Edition apps?
Independent Dating
and  

By clicking 'Search' you
are agreeing to our
Terms of Use.

iJobs Job Widget
iJobs General

Guru Careers: Software Developer / C# Developer

£40-50K: Guru Careers: We are seeking an experienced Software / C# Developer w...

Guru Careers: Software Developer

£35 - 40k + Benefits: Guru Careers: We are seeking a Software Developer (JavaS...

SThree: Trainee Recruitment Consultant / Resourcer

£18000 - £23000 per annum + Commission: SThree: As a Trainee Recruitment Consu...

Ashdown Group: UI Developer - (UI, HTML, CSS, JavaScript, AngularJS)

£25000 - £40000 per annum: Ashdown Group: UI Developer - (UI, JavaScript, HTML...

Day In a Page

Sun, sex and an anthropological study: One British academic's summer of hell in Magaluf

Sun, sex and an anthropological study

One academic’s summer of hell in Magaluf
From Shakespeare to Rising Damp... to Vicious

Frances de la Tour's 50-year triumph

'Rising Damp' brought De la Tour such recognition that she could be forgiven if she'd never been able to move on. But at 70, she continues to flourish - and to beguile
'That Whitsun, I was late getting away...'

Ian McMillan on the Whitsun Weddings

This weekend is Whitsun, and while the festival may no longer resonate, Larkin's best-loved poem, lives on - along with the train journey at the heart of it
Kathryn Williams explores the works and influences of Sylvia Plath in a new light

Songs from the bell jar

Kathryn Williams explores the works and influences of Sylvia Plath
How one man's day in high heels showed him that Cannes must change its 'no flats' policy

One man's day in high heels

...showed him that Cannes must change its 'flats' policy
Is a quiet crusade to reform executive pay bearing fruit?

Is a quiet crusade to reform executive pay bearing fruit?

Dominic Rossi of Fidelity says his pressure on business to control rewards is working. But why aren’t other fund managers helping?
The King David Hotel gives precious work to Palestinians - unless peace talks are on

King David Hotel: Palestinians not included

The King David is special to Jerusalem. Nick Kochan checked in and discovered it has some special arrangements, too
More people moving from Australia to New Zealand than in the other direction for first time in 24 years

End of the Aussie brain drain

More people moving from Australia to New Zealand than in the other direction for first time in 24 years
Meditation is touted as a cure for mental instability but can it actually be bad for you?

Can meditation be bad for you?

Researching a mass murder, Dr Miguel Farias discovered that, far from bringing inner peace, meditation can leave devotees in pieces
Eurovision 2015: Australians will be cheering on their first-ever entrant this Saturday

Australia's first-ever Eurovision entrant

Australia, a nation of kitsch-worshippers, has always loved the Eurovision Song Contest. Maggie Alderson says it'll fit in fine
Letterman's final Late Show: Laughter, but no tears, as David takes his bow after 33 years

Laughter, but no tears, as Letterman takes his bow after 33 years

Veteran talkshow host steps down to plaudits from four presidents
Ivor Novello Awards 2015: Hozier wins with anti-Catholic song 'Take Me To Church' as John Whittingdale leads praise for Black Sabbath

Hozier's 'blasphemous' song takes Novello award

Singer joins Ed Sheeran and Clean Bandit in celebration of the best in British and Irish music
Tequila gold rush: The spirit has gone from a cheap shot to a multi-billion pound product

Join the tequila gold rush

The spirit has gone from a cheap shot to a multi-billion pound product
12 best statement wallpapers

12 best statement wallpapers

Make an impact and transform a room with a conversation-starting pattern
Paul Scholes column: Does David De Gea really want to leave Manchester United to fight it out for the No 1 spot at Real Madrid?

Paul Scholes column

Does David De Gea really want to leave Manchester United to fight it out for the No 1 spot at Real Madrid?