Hugh Evans & Miles Harris delve into the issue of contingent liability
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By his decision in AXA Insurance Limited v Akther & Darby Solicitors & Ors [2009] EWHC 635 (Comm), [2009] All ER (D) 285 (Mar), Mr Justice Flaux has reduced some of the uncertainties caused by Law Society v Sephton [2006] 2 AC 543 as to when actual damage is suffered in tort.
His decision is of considerable interest to professional liability practitioners. The judge made it clear that, while the question of when actual damage is suffered is fact specific to each case, where a solicitor owes a duty to bring about a transaction with particular characteristics, if upon completion the transaction is fl awed because those characteristics are absent, the client suffers actual damage on the date of the transaction. The fact that the fl aw in the transaction means that inherent in it is a risk which in one sense is contingent, as it may or may not occur, does not mean that accrual of the cause of action is suspended
