Expert Witness Journal Issue 66 April 2026 - Flipbook - Page 56
3PB analysis
Impact of the decision
Con昀氀ict of Interest
This decision is a useful reminder that pleadings can
be critical to the success of a claim, both in terms
of breach and causation. It is insu昀케cient to advance
broad assertions that a client “would not have agreed
a settlement” without articulating the speci昀椀c
counterfactual scenario and how that would have
resulted in the claimant being in a better 昀椀nancial
position.
The Court of Appeal was invited to consider
whether there was a con昀氀ict of interest in Can昀椀eld
representing multiple clients with potentially
divergent interests. It was reiterated that the trial
judge had considered the con昀氀ict in the terms in
which it had been pleaded and advanced at trial.
The Court of Appeal was not persuaded that the
judge had erred in his assessment. The pleadings on
con昀氀ict were narrower than the arguments advanced
on appeal, and there was no basis for concluding that
the judge misapplied legal principles on con昀氀icts.
Proper consideration always needs to be given
to whether the claim is for the loss of a chance of
obtaining a better outcome. Where the outcome
is dependent on the hypothetical actions of third
parties, the loss will usually be assessed on a loss
of a chance basis, but it is vital that such pleadings
are included in the claim. In this case, if it had been
pleaded that Mrs Blower would have obtained a
better settlement, had she been properly advised,
the outcome was dependent on what Mr Blower and
the trustee in bankruptcy would have agreed to, so
that would have been a loss of a chance claim.
The judge’s unchallenged 昀椀ndings of fact that were
relevant to this point were that the family trusted
Mr Blower to negotiate the best deal, that neither
Mrs Blower nor her daughter would have refused
the settlement he negotiated, and that a reasonably
competent litigation solicitor would have advised
settlement on similar terms. As a result of these
昀椀ndings, even if there was a con昀氀ict of interest, it
would not have made any di昀昀erence to the outcome.
Con昀氀icts of interest are often raised as the basis for
professional negligence claims, but it is important
to consider what the parties’ interests were at the
relevant times and whether they actually con昀氀icted.
Theoretical con昀氀icts are often manufactured
retrospectively, which are not supported by the
contemporaneous documents. The evidence in
this case highlighted that Mr and Mrs Blower had
broadly the same interest, which was to pay as little
as possible to the trustee in bankruptcy.
While acknowledging that solicitors must comply
with the SRA Code of Conduct and should not act
where con昀氀icts arise, save in limited circumstances,
the Court held that, given the narrow pleading and
the family dynamics found by the judge, a con昀氀ict
would have made no di昀昀erence overall.
Causation and Pleading Requirements
The second core issue was whether the pleadings
su昀케ciently articulated causation. The Court of
Appeal endorsed the trial judge’s 昀椀nding that Mrs
Blower had not set out a coherent case on causation,
in that she had not particularised what would have
happened if she had not entered into the settlement
agreement on 9 December 2015. There were no
pleadings as to whether Mrs Blower contended that
she would have settled on more favourable terms
and what those terms would have been, or whether
she would have defended the claims at trial and what
the outcome would have been.
Professional indemnity insurers and solicitors
facing negligence claims will no doubt be pleased
that the Courts continue to take a strict approach
to pleadings, and it seems likely that this case will be
raised as a warning to claimants with speculative or
vague claims.
This document is not intended to constitute and
should not be used as a substitute for legal advice on
any speci昀椀c matter. No liability for the accuracy of
the content of this document, or the consequences
of relying on it, is assumed by the author. If you seek
further information, please contact the 3PB clerking
team by emailing David.Fielder@3pb.co.uk.
The Court of Appeal noted that the judge had
already a昀昀orded latitude by going beyond the strict
pleadings, and that it would have been inappropriate
to entertain a loss of chance argument on appeal
where it had not been properly pleaded or pursued
at trial. The key 昀椀nding in terms of causation was
that there were no circumstances in which Mrs
Blower would have de昀椀ed Mr Blower and refused to
agree to the terms that he had negotiated. On that
basis, the end result would have always been the
same. The relevant 昀椀ndings of fact, together with
the inadequate pleadings, made it impossible for the
appeal to succeed.
EXPERT WITNESS JOURNAL
54
APRIL 2026
