Blower v GH Canfield LLP: Pleading Counterfactual Causation and Properly Particularising Conflicts of Interest in Solicitor Negligence Claims

Court: England and Wales Court of Appeal (Civil Division)
Citation: [2025] EWCA Civ 1627
Date: 17 December 2025

1. Introduction

Blower v GH Canfield LLP is a professional negligence appeal arising out of a “global settlement” reached at mediation on 9 December 2015 in the context of bankruptcy-related litigation. The appellant, Mrs Sandra Blower, sued the respondent solicitors, GH Canfield LLP (“Canfields”), in her own right and as assignee of her daughter Kelly’s rights. The alleged negligence centred on Canfields’ role in the negotiation and execution of a settlement deed that resolved multiple claims by a trustee in bankruptcy against various members of the Blower family.

Core dispute: Whether Canfields acted negligently (including by mishandling conflicts of interest) in relation to the settlement agreement; and whether any alleged negligence caused loss given the way causation and loss were pleaded.

Permission to appeal was granted on two grounds:

  • Conflicts ground: whether the trial judge failed to consider/apply the law and regulatory standards on conflicts of interest in assessing alleged negligence.
  • Causation/loss ground: whether the judge erred in holding that, even if negligence were established, causation and loss were not coherently pleaded (and whether the court should nonetheless have determined causation as a matter of justice).

The Court of Appeal (Asplin LJ giving the lead judgment; Coulson LJ and King LJ concurring) dismissed the appeal, largely because (i) the conflicts case advanced on appeal materially departed from what was pleaded and tried, and (ii) the pleaded causation case failed to articulate a “positive counterfactual” explaining what would have happened absent the alleged negligence. The judgment is also notable for pointed obiter observations about how conflicts ought to be approached “through the lens” of the Solicitors’ Regulatory Authority (“SRA”) Code of Conduct, even where clients claim to be aligned and seek a single global deal.

2. Summary of the Judgment

2.1 Outcome

The appeal was dismissed. The Court of Appeal upheld the trial judge’s dismissal of the professional negligence claim.

2.2 Key holdings

  • Conflicts: The trial judge addressed conflict of interest as it was pleaded and presented—primarily via the alleged “trust fund” point—and could not be faulted for not determining wider or newly framed conflicts arguments raised on appeal. New “facets” of the conflicts argument were either unavailable at this stage or added nothing material.
  • Causation pleading: The pleaded case alleged what would not have happened (Mrs Blower would not have agreed to the settlement), but did not plead what would have happened next (e.g., settlement on better terms, or trial and its likely outcome). This absence of a pleaded counterfactual meant there was “no coherent case on causation of loss.”
  • No re-cast as loss of a chance: The appellant could not on appeal reframe the claim as one for “loss of a chance,” particularly where that approach was expressly disavowed at trial.
  • Appellate restraint / trial finality: The court emphasised that a trial is not a dress rehearsal and refused an attempt to recast the case post-trial to secure a remittal.

3. Analysis

3.1 Precedents Cited

The Court of Appeal’s approach was shaped by authorities on (i) pleadings and trial fairness, (ii) the ability (or not) to run unpleaded cases, (iii) appellate constraints, and (iv) causation in professional negligence.

3.1.1 Rhine Shipping DMCC v Vitol SA (the Dijilah) [2024] EWCA Civ 580

Canfields relied on Rhine Shipping DMCC v Vitol SA (the Dijilah) to resist the appellant’s attempt to run new conflicts points on appeal. The Court of Appeal accepted that the concerns identified in that case arose here: had the new conflicts theories been advanced at trial, evidence would likely have been different, cross-examination would have been conducted differently, and the judge would have made additional findings of fact. This supported the conclusion that the appellant should not be permitted to change the shape of the case after trial.

3.1.2 Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5

Asplin LJ invoked Lewison LJ’s well-known dictum from Fage UK Ltd v Chobani UK Ltd at [114] (“the trial is not a dress rehearsal. It is the final and last night of the show”) to reinforce trial finality and the impermissibility of recasting the dispute on appeal. The case was used to reject the implicit suggestion that, had the appellant pleaded and presented conflict differently, a different result might have been achieved.

3.1.3 Levicom International Holdings BC v Linklaters [2010] EWCA Civ 494

The trial judge discussed Levicom International Holdings BC v Linklaters when dealing with an argument about the evidential burden on causation. He distinguished it on the basis that in Levicom there was a complete pleaded causation case (including what would have happened absent negligence—earlier settlement on better terms), whereas in Blower the pleading did not articulate the necessary counterfactual. Although the appeal did not ultimately turn on Levicom (and no reliance was placed on it in the Court of Appeal), its treatment underscores the central theme: causation requires pleading the alternative scenario, not merely alleging repudiation of the impugned decision.

3.1.4 Charles Russell Speechlys LLP v Beneficial House (Birmingham) Regeneration LLP [2021] EWHC 358 (QB)

The appellant relied on Charles Russell Speechlys LLP v Beneficial House (Birmingham) Regeneration LLP to argue that the judge should have determined causation “outside the pleadings” because it was just to do so. The Court of Appeal held that this could not assist: the trial judge had, in fact, considered the expanded causation submissions advanced in closing despite their unpleaded nature and rejected them on the evidence. The authority was therefore not a springboard to argue that the judge should have formulated and decided additional, different causation cases not run at trial.

3.1.5 Loveridge and Loveridge v Healey [2004] EWCA Civ173

Quoted within Charles Russell Speechlys, Loveridge and Loveridge v Healey was used as a statement of principle about departures from pleadings: courts may proceed where no prejudice is caused or amendment would plainly be allowed; but where departure causes prejudice, fairness generally requires amendment and proper procedural handling. This framing informed the appellate court’s emphasis on prejudice and procedural fairness when a party attempts late reframing.

3.1.6 UK Learning Academy Ltd v Secretary of State for Education [2020] EWCA Civ 370

Also quoted within Charles Russell Speechlys, UK Learning Academy Ltd v Secretary of State for Education was cited for the proposition that in appropriate circumstances a judge may allow a party to depart from pleaded case if just, though amendment is best practice. The Court of Appeal’s application here was practical: the judge did consider the unpleaded causation case advanced in closing; the appellant could not complain that he failed to go further.

3.1.7 Perry v Raleys Solicitors [2020] AC 352

The appellant sought to reframe the dispute as a loss-of-a-chance claim and invoked Perry v Raleys Solicitors, which explains the “dividing line”: what the claimant would have done must be proved on the balance of probabilities; what third parties would have done is assessed as loss of a chance. The Court of Appeal refused the reframing, stressing that loss of chance was neither pleaded nor run, and was expressly disavowed at trial.

3.1.8 Al-Medenni v Mars UK Limited [2005] EWCA Civ 1041

Al-Medenni v Mars UK Limited supplied the conceptual underpinning for refusing to decide the case on a new basis. Dyson LJ’s statement at [21] (quoted) emphasises that judges must adjudicate the issues the parties put forward; while they may invite reformulation, they must respect parties’ decisions about the case they choose to advance. The Court of Appeal treated the appellant’s attempted post-trial recasting as precisely the unfairness warned against in Al-Medenni.

3.1.9 “Boake Allen”

“Boake Allen” is referenced in the extracted passage from Charles Russell Speechlys as part of a broader discussion about the “orderly progress of the case.” Although not elaborated in this judgment, its invocation supports the theme that litigation must proceed on clearly defined issues and that disruptive late shifts can be unfair.

3.2 Legal Reasoning

3.2.1 Conflicts of interest: pleaded case versus appeal case

The appellate court’s central move on conflicts was methodological: it examined what was actually pleaded and tried. The pleaded conflicts allegation focused on a “potential conflict” arising from the proposition that Mrs Blower had a personal claim against Mr Blower’s bankrupt estate because he allegedly held (and dissipated) money “on trust” for her.

The trial judge addressed that point substantively:

  • He found the alleged trust fund had been dissipated and would not yield a proprietary remedy against third parties; at most, Mrs Blower would have a personal claim against Mr Blower.
  • He rejected statutory set-off (s.323 Insolvency Act 1986) as lacking mutuality.
  • On that basis, he treated the pleaded conflict allegation as effectively “disposed of.”

On appeal, the appellant attempted to widen the conflicts point into multiple new theories (e.g., differential incentives between bankrupt and family; the settlement imposing liabilities allegedly exceeding individual exposure; conflicts created by bankruptcy dynamics and in personam claims; etc.). The Court of Appeal held that the judge could not be criticised for not deciding those broader theories because:

  • they were not pleaded with detail;
  • they were not put in cross-examination as conflicts propositions; and
  • per Rhine Shipping DMCC v Vitol SA (the Dijilah), allowing them late would raise prejudice and fact-finding concerns.

The court also made a critical practical point: even if a conflict existed, on the trial judge’s unchallenged findings it would not have caused loss—because (i) a competent solicitor would have advised settlement on similar terms, (ii) the family dynamics showed the clients trusted Mr Blower and would not have defied him, and (iii) the trust/set-off arguments (the engine of the pleaded conflict theory) did not change the bankruptcy reality.

3.2.2 Obiter guidance: conflicts should be assessed “through the lens” of the SRA Code

Although the appeal failed on pleadings/trial-case grounds, Asplin LJ delivered important observations on the proper approach to conflicts. She questioned whether it was correct to approach conflicts by first assessing the merits of potential claims/defences and only then deciding whether a conflict exists.

The judgment highlights regulatory structure: under the then-current SRA Code of Conduct Chapter 3:

  • O(3.1) requires systems and controls to identify and assess conflicts.
  • O(3.5) prohibits acting where there is a client conflict or significant risk, unless exceptions apply.
  • O(3.6) allows acting where there is “substantially common interest” only if issues/risks are explained, informed written consent is obtained, acting is reasonable and in each client’s best interests, and benefits outweigh risks.
  • O(3.7) covers clients “competing for the same objective” with further safeguards (including separate supervision unless specifically agreed).

A key conceptual clarification is that “substantially common interest” does not mean “no conflict.” It is, rather, a condition that may permit continued joint representation despite a conflict, but only if the prescribed safeguards are satisfied. Further, the obligation is continuing: it arises at or before retainer and must be kept under review; it does not depend on a detailed merits analysis at the outset.

These comments do not change the result, but they are significant as a Court of Appeal articulation of how litigators should think about conflicts in practice: expressed unity and a desire for a global settlement may be relevant, but cannot be treated as an automatic substitute for the structured compliance exercise required by the Code.

3.2.3 Causation and loss: the missing counterfactual

On causation, the Court of Appeal upheld the trial judge’s conclusion that the pleading was defective. The pleaded allegation was essentially: “If properly advised, Mrs Blower would not have agreed to the settlement (or any sum at all).”

That is not a complete causation case because it fails to plead the necessary “what then?” scenario. The court labelled this the absence of a “positive counter-factual.” Without pleading whether the alternative would have been:

  • settlement on better terms (and what terms), or
  • trial (and what likely outcome), or
  • another structured resolution, including cost consequences, timing, and enforcement realities,

the court held that compliance with CPR 16.4(1)(a) (“concise statement of the facts”) was not achieved. It could not be cured by implication because the alternative outcome was indeterminate and speculative.

3.2.4 The “justice” argument and deciding cases outside pleadings

The appellant argued the judge should have addressed causation outside the pleadings because it was just to do so (relying on Charles Russell Speechlys LLP v Beneficial House (Birmingham) Regeneration LLP). The Court of Appeal’s answer was practical and case-specific:

  • The trial judge did engage with the expanded causation submissions made in closing (even though unpleaded), and rejected them on their merits.
  • The appellant could not criticise him for failing to consider wider arguments that were not made, especially where any broader conflicts/counterfactual case was not the trial case.

3.2.5 No remittal to run a new loss-of-a-chance case

Finally, the court rejected any attempt to pivot into “loss of chance” (with remittal for a new trial). Perry v Raleys Solicitors was not a gateway for re-litigation; it was a statement of framework. Given the express disavowal of loss of chance at trial, and the need for different evidence had it been pleaded, a remittal would be inconsistent with fairness and the adversarial process. The reliance on Al-Medenni v Mars UK Limited underlined that courts cannot decide cases on a new theory the parties did not choose to run.

3.3 Impact

3.3.1 Professional negligence claims: conflicts allegations must be pleaded and tried as conflicts

The decision reinforces that a professional negligence claimant must:

  • plead the alleged conflict with sufficient specificity (who, what interests, when it crystallised, why it is significant);
  • link conflict to breach (what the solicitor should have done—e.g., obtain written informed consent under O(3.6), decline to act, recommend independent advice);
  • and, crucially, link it to causation (how separate advice would likely have changed decisions or outcomes).

It is not enough to invoke the language of “potential conflict” and then, on appeal, supply new theories. If a conflict case is to be run, the evidence (including cross-examination about systems, safeguards, consent processes, and risk explanations) must be developed at trial.

3.3.2 Pleading causation in advice/settlement cases: counterfactuals are essential

The judgment is a clear warning in “settlement-induced-loss” negligence claims: pleading “I would not have settled” does not plead loss. The pleading must set out the alternative course and why it would have left the claimant better off (including the likely response of the opposing party, if relevant).

3.3.3 Loss of chance cannot be retrofitted

The refusal to permit a post-trial pivot to loss of chance—especially where disavowed below—has practical consequences: claimants must decide early whether causation depends on third-party hypothetical conduct and plead accordingly. Attempting to switch models after trial risks dismissal even if there is an arguable breach.

3.3.4 Regulatory standards: persuasive content even if not determinative

Although the result turned on pleadings and unchallenged findings, the obiter discussion may shape future negligence litigation and professional practice. It encourages courts and practitioners to treat the SRA conflict regime as a structured decision framework, not merely as background “best practice.”

4. Complex Concepts Simplified

  • Client conflict / significant risk of conflict: a situation where a solicitor’s duties to one client conflict (or may conflict) with duties to another current client. Under the SRA Code, the starting point is “don’t act,” unless a specified exception applies with safeguards.
  • “Substantially common interest” (SRA O(3.6)): clients may share a clear common purpose and agree on the strategy—but that does not eliminate conflict; it can only justify joint acting if informed written consent and other safeguards are satisfied.
  • Informed consent in writing: not a mere signature—clients must have the issues and risks explained and understood before consenting, and the consent must be recorded.
  • Counterfactual (in causation): the alternative history: what would have happened if competent advice had been given. Courts require this to be pleaded; otherwise “loss” is speculative.
  • Loss of a chance: where the better outcome depends on what a third party would have done (e.g., would the trustee have settled for less?). The court values the lost opportunity by assessing probabilities. This must be pleaded and supported by evidence.
  • Personal vs proprietary remedy (trust context): a proprietary remedy gives rights in specific assets; a personal remedy is a claim against a person for compensation. The trial judge’s analysis treated any “restoration” of a dissipated trust fund as, at best, personal against Mr Blower—material in rejecting set-off and conflict arguments as pleaded.
  • Mutuality and insolvency set-off (s.323 Insolvency Act 1986): set-off requires cross-claims between the same parties in the same capacity. A claim against one’s spouse personally is not automatically set off against a trustee’s claim in bankruptcy proceedings.

5. Conclusion

Blower v GH Canfield LLP is a procedural-and-substantive reaffirmation of how professional negligence claims must be litigated: conflicts of interest allegations must be pleaded with clarity and tried on evidence directed to the regulatory and factual safeguards; and causation in settlement/advice cases must plead the “positive counterfactual,” not merely the claimant’s asserted refusal to settle. The Court of Appeal’s refusal to permit an appellate recasting—especially into a loss-of-a-chance model expressly disavowed at trial—underscores the centrality of pleadings, trial fairness, and finality.

At the same time, Asplin LJ’s obiter observations provide a practical pointer for future cases: even where clients appear united and seek a global settlement, conflicts analysis should be conducted explicitly in accordance with the SRA Code’s structured requirements, rather than inferred away by apparent family consensus.