In Perry v Raleys (2019) UKSC 5 the Supreme Court said that loss of chance damages have been developed by the Courts to deal with the difficulties arising from the assessment of counter-factual and future events. In both types of situation, the Courts, at times, depart from the ordinary burden on a claimant to prove the facts required for a successful claim on the balance of probabilities (i.e. more likely than not) standard. However, this does not mean that the basic requirement that a negligence claim requires proof that loss has been caused by the breach of duty is abandoned. The correct approach is to require a claimant to prove what he or she would have done on the balance of probabilities, while what others would have done (if relevant) depends on a loss of chance evaluation. These principles apply equally to negligence claims based on loss of the opportunity to achieve a better outcome in a negotiated transaction and ones, as in this case, based on loss of the chance to bring a legal claim.

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