The happy coincidence: why your lawyer is (sometimes) immune from suit

The rule of law Certainty and finality of judicial decisions are values at the heart of the rule of law. They are not to be undermined by subsequent collateral attacks. If a decision is thought to be wrong, the aggrieved party should exercise any right of appeal.

Readers of Insurance Matters will instantly recognise the preceding paragraph as stating some fairly fundamental legal principles—that, as we will see, the common law is at pains to protect.

Alternative reality Most litigation involves some form of alternative universe.

Plaintiffs routinely allege that if some wrong had not happened, a different reality would have existed, which would have been better for them.

If a plaintiff can prove that they would have been better off without the defendant's negligence, the law strives to provide a remedy in the form of compensation.

Courts look closely at the alternative universe postulated by each plaintiff. They decide whether events would have taken the course suggested if the negligence had not occurred. Judges routinely evaluate whether one hypothesis about what would have happened is more or less probable than another hypothesis.

In doing so, the courts examine the behaviour of the litigants and others around them, before and after the (alleged) wrong, to decide what would have happened if the wrong didn't. Making those decisions involves analysing the parties' motivations, the commercial pressures they were under...