K v. M (Unrep) 01.04.21
Acting through Advocate, the Pro Bono Charity of the Bar, Marcus represented a young solicitor in a professional negligence claim against her former solicitor for under-settling her claim for damages for post traumatic fibromyalgia following a car accident. Judicial ruling on propriety of mentioning fundamental dishonesty in a pleading in an injury claim. Master Davison handed down a reserved judgment intending to discourage pleas of fundamental dishonesty which are merely speculative or contingent.
Her claim was settled shortly before the third anniversary of the accident for £95,000 after a draft Schedule of Loss was presented quantifying her future loss of earning capacity by reference to a modest claim for a Blamire award, at a time when all treatment options had not been exhausted, and the prognosis for further recovery was guarded.
The professional negligence claim was framed on the basis that a reasonable and competent injury solicitor would have involved a specialist post traumatic fibromyalgia counsel who would have advised against settling for £95,000; instead they would have recommended starting proceedings and monitoring the prognosis as the Claimant exhausted all treatment options recommended by her medico-legal rheumatologist before reverting to him for a final prognosis.
Further, it was alleged that on the facts of the case, that it was negligent to present the Claimant’s future loss of earning capacity claim by reference to a broad brush Blamire approach when binding case law (Bullock v. Atlas Ward Structures Ltd  EWCA Civ 194 & Kennedy v. London Ambulance Service NHS Trust  EWHC 3145) suggested that such an approach should only be adopted if a multiplier-multiplicand approach would throw up an obviously unreal result.
The claim settled for a further £266,000 through negotiations at a JSM with the professional indemnity insurer and its Counsel, without the need to issue proceedings.