Input:
Mr Thomas Arthur Watkins lived near Tredegar in South Wales.
He was employed by the National Coal Board (later British Coal Corporation) (British Coal) as a miner from 1964 until 1985.
In that employment he was required to use vibratory tools and as a result of such exposure, in common with very many other miners, Mr Watkins developed Vibration White Finger (VWF) which is a form of Hand/Arm Vibration Syndrome (HAVS).
He first experienced the symptoms, which consist of whitening, stiffness, numbness and tingling of the fingers of both hands, not later than the early 1980s.
After he left the employment of British Coal in 1985, he worked as a driver of road sweeping vehicles until he retired in 1997.
Shortly after that he was diagnosed with osteoarthritis in both knees which became increasingly acute.
One symptom of VWF can be a reduction in grip strength and manual dexterity in the fingers.
A common, although not invariable, consequence is that a person suffering from these conditions becomes unable, without assistance, to carry out routine domestic tasks such as gardening, do it yourself or car maintenance.
The Scheme
A group of test cases, representative of some 25,000 similar claims, established that British Coal had been negligent in failing to take reasonable steps to limit the exposure of employed miners to VWF from the excessive use of vibratory tools (Armstrong v British Coal Corpn [1998] CLY 975).
As a result, the Department for Trade and Industry (DTI), which had assumed responsibility for British Coals relevant liabilities, set up a scheme in 1999 to provide tariff based compensation to miners who suffered from VWF as a result of exposure to excessive vibration (the Scheme).
The Scheme was administered pursuant to a Claims Handling Arrangement (the CHA) dated 22 January 1999 and made between the DTI and a group of solicitors firms representing claimant miners suffering from VWF.
The central objective of the CHA was to enable very large numbers of similar claims to be presented, examined and resolved expeditiously.
The Scheme contemplated the making of two main types of compensatory award to miners suffering from VWF, corresponding broadly with general and special damages for personal injuries.
The Scheme provided for compensation to be paid for pain, suffering and loss of amenity (General Damages), and for handicap on the labour market and other financial losses (Special Damages) including past and/or future loss of earnings.
Pursuant to a Services Agreement dated 9 May 2000 the special damages could include a services award for qualifying miners in respect of the need for assistance in performing domestic tasks.
Under the Scheme, each claimant was required to complete a questionnaire on his work history and IRISC, the claims handling organisation which acted on behalf of the DTI, would then allocate him to a particular occupational group, depending on his likely exposure to vibration.
He would then undergo a medical examination in accordance with a defined Medical Assessment Process (MAP) by a doctor appointed under the Scheme.
The resulting MAP 1 report was in standard format and was intended to determine whether the claimant suffered from VWF and, if so, the severity of the condition by reference to the stagings on the Stockholm Workshop Scale.
The V score was a measure of the vascular symptoms and depended largely on reporting from the patient.
The extension of blanching was recorded diagrammatically by the examining doctor.
The sensori neural signs and symptoms were assessed partly from the claimants account and partly by standardised testing, the results of which were recorded as Sn markings.
It was open to a claimant to challenge the findings of the MAP 1 report but there was no provision for IRISC to do so.
Within 56 days of receipt of the MAP 1 report IRISC was obliged to make an offer of compensation or to reject the claim with reasons.
The Services Agreement of 9 May 2000 was incorporated in the CHA as Schedule 7(1).
It recorded an agreed approach to compensation for services.
The respective medical experts of the parties to the Scheme rejected the idea that there should be an individual assessment of each claimants ability to carry out particular household tasks.
Instead it was agreed that an assumption be made that once the condition had reached a certain level(s) causation it should be presumed that a man could no longer carry out certain tasks without assistance.
The examining doctor would then merely have to consider whether there were any other conditions (VWF apart) which of themselves would have prevented the man from undertaking the task in question thereby rebutting the presumption. (Schedule 7.1, paragraph 3.1(ii)) Six tasks were identified for this purpose: gardening work, window cleaning, do it yourself, decorating, car washing and car maintenance (Schedule 7.1, paragraph 3.3).
Claims under the Services Agreement were processed in the following way.
The experts produced a matrix identifying in respect of each staging of 2V and 2Sn late, or higher, the tasks for which a claimant would be presumed to require assistance.
Once a claimant had a staging of at least 2V or 2Sn late, a claimant was entitled to a services award if he had previously performed one of the identified tasks, but now required assistance to do so as a result of his VWF.
Men at 2V on the scale would be expected to have difficulty with all tasks except do it yourself and decorating and at 3V would be expected to have difficulty with decorating.
It was further assumed that the condition would not have deteriorated since cessation of exposure to vibration (Schedule 7.1, paragraphs 4.1, 4.2).
A claimant did not have to show that his condition wholly disabled or prevented him from carrying out the relevant task.
It was enough that he could no longer carry it out without assistance.
The approach left to be determined when a claimant reached the relevant stages, whether he suffered from any other conditions which would have prevented him from continuing to carry out any tasks in any event (co morbidity), and, if so, what that condition was, when it developed and the extent to which it compromised his ability to carry out the relevant tasks expressed on a scale of nil, material, moderate, serious and complete (Schedule 7.1, paragraphs 3.7, 5.1).
Factual evidence concerning a services claim was presented by a simple questionnaire completed by the claimant.
Because it would be impracticable to investigate individual claims in any detail, the Scheme provided that broad assumptions will be made about the average assistance that would be required for the particular task by the individual at the relevant stage (Schedule 7.1, paragraph 6.7).
Schedule 7 stated that practical and other considerations militate against other than a tariff based approach given the number of claims and the need for a quick, efficient and inexpensive approach to their settlement. (Schedule 7, paragraph 6.2) In addition, a claimants most recent helpers would complete questionnaires.
A claimant would then be sent for a further medical examination (MAP 2) which was solely concerned to consider whether there were any other conditions which, of themselves, would have prevented the claimant from undertaking the task in question.
A claimant was not usually contacted by IRISC concerning his claim, but helpers were.
This normally consisted of a telephone interview, which might last 15 minutes, during which the helper would be asked whether he or she had assisted with the tasks claimed and, if so, when they started to do so.
Even where the helper was out by a few years on dates, the information in the questionnaire would still be accepted.
On receipt of the questionnaires, IRISC would consider each claim on its merits, adopting a pragmatic approach.
If IRISC did not accept the claim entirely it had to set out in detail the reasons for rejecting the claim in whole or part.
Compensation was calculated by application of a multiplier/multiplicand approach and an index linked tariff was set in respect of each task according to the particular staging.
IRISC could reject a claim for services in whole or in part if a claimants work history after leaving the mining industry was such as to indicate that his ability to carry out the relevant tasks was not impaired.
However, in order to be entitled to rebut the presumption that a man with a particular claimants stagings could not carry out the relevant tasks without assistance, IRISC had to discharge the burden of establishing that the work actually carried out by the claimant was such as to demonstrate that he could reasonably be expected to carry out all aspects of the task without assistance.
Pending resolution of the services claim, a claimant was entitled to receive an interim payment in respect of his claim for general damages and handicap on the labour market.
Mr Watkinss claim
In February 1999 Mr Watkins instructed Hugh James Ford Simey Solicitors (the appellant) to act for him in relation to a claim under the Scheme.
His claim was notified to the DTIs claims handlers on 10 February 1999.
By November 1999 Mrs Barbara Kinsey, litigation solicitor within the appellant firm, had assumed responsibility for many VWF claims, including that of Mr Watkins, at the appellants office in Bargoed and, from 2001, Treharris.
On 31 January 2000 Mr Watkins underwent an interview and examination performed in part by Dr Chadha, a general practitioner appointed under the Scheme, and in part by an unnamed laboratory technician, to assess whether he was suffering from VWF and, if so, how his condition should be categorised under the Stockholm Workshop Scale for its vascular and sensorineural components.
This was referred to as a Medical Assessment Process 1 (MAP 1) examination.
In a report dated 3 February 2000 Dr Chadha indicated that Mr Watkins suffered from VWF with stagings of 3V and 3Sn bilaterally (ie in both hands).
Those stagings were sufficient for Mr Watkins to obtain general damages and to entitle him to a presumption in his favour that he satisfied the qualifying requirements for a services award.
Mr Watkins did choose to seek a services award.
He and his assistants completed the necessary questionnaires which were sent to the DTIs claims handlers on 23 March 2001.
They initially sought to deny Mr Watkinss entire claim on the basis that he had not been exposed to excessive vibration while working for British Coal.
The appellant challenged that decision and eventually the claims handlers were persuaded to accept Mr Watkinss claim under the Scheme.
As a result of this delay, it was not until 12 February 2003 that the claims handlers wrote to the appellant, offering Mr Watkins the sum of 9,478 in full and final settlement of all [Mr Watkinss] claims arising out of his exposure to vibration during the course of his employment with the British Coal Corporation. 9,478 was the tariff award for general damages to which Mr Watkins would have been entitled under the Scheme on the basis of the stagings of 3V and 3Sn bilaterally.
The offer made did not include any allowance for a services award.
The appellant wrote to Mr Watkins on 18 February 2003, reporting the offer which had been received and advising him as to what would be involved should he wish to proceed with a special damages claim.
On 23 February 2003 Mr Watkins spoke by telephone with Mrs Kinsey at the appellant and told her that he didnt want to proceed any further with the special damages claim as he had other conditions and had had various operations which in his view prevented him from carrying out certain tasks.
He indicated that he was quite happy to continue with general damages only and would accept the offer.
Mr Watkins completed a form of acceptance on 24 February 2003 and the appellant wrote to the claims handlers on 27 February 2003 accepting the offer in full and final settlement of Mr Watkinss VWF claim against British Coal.
The professional negligence proceedings
Nearly five years later, in January 2008, Mr Watkins, having seen a newspaper advertisement offering assistance to any ex miner who may have had his VWF claim settled at an undervalue, instructed fresh solicitors, who issued proceedings against the appellant on 11 August 2010.
By the amended particulars of claim it is contended that as a result of the appellants negligence, Mr Watkins has lost the opportunity to bring a services claim under the Scheme or otherwise.
That lost opportunity is quantified at 6,126.22 plus interest.
On 22 October 2010, His Honour Judge Hawkesworth QC made an order in relation to a number of claims against solicitors arising out of the Scheme, directing that disputes about expert evidence and disclosure be dealt with at a hearing before him.
The six test cases identified in the order did not include Mr Watkinss claim.
Following a hearing, by order dated 3 May 2011 Judge Hawkesworth ordered that his directions should apply to all prospective and existing claims alleging negligence against solicitors in the context of the advice given by those solicitors in respect of claims for damages [under the Scheme].
He directed that expert evidence should be obtained in the form of a report by a single joint expert.
A schedule to the order set out a standard form letter of instruction to such a single joint expert in terms approved by the judge.
That standard form was adopted in the letter dated 21 January 2013 by which the parties to the present proceedings jointly instructed Mr Tennant, a consultant vascular surgeon.
It stated: It is an issue in the proceedings whether Mr Watkins would, if properly advised, in fact have brought a Services claim at all.
Whether Mr Watkins was, as a result of HAVS, in fact disabled from carrying out (in whole or in part) the tasks he alleges would have formed the basis of his Services claim is relevant to that issue.
Accordingly, we wish jointly to instruct you to carry out a medical examination of Mr Watkins and, on the basis of that examination and your consideration of the documents referred to below and attached to this letter, to prepare a report stating your opinion as to whether Mr Watkins is and was at any time from the date of onset of HAVS symptoms: (1) Disabled by HAVS as a matter of fact and, to the extent that he was, unable to carry out (in whole or in part), without assistance, the tasks which he alleges would have formed the basis of his Services Claim; and (2) Suffering from any co morbid medical condition which would, in any event, have affected his ability to carry out those tasks without assistance.
In relation to co morbidity, could you please express your opinion as to whether any such co morbidity was at any time since the date of onset of HAVS symptoms: nil; minor; moderate; serious; complete (ie would have prevented the carrying out of the task in any event) If, in the course of your medical examination, you conclude that Mr Watkins does not, in fact, suffer from HAVS, you should report that opinion in your Report.
The letter made clear that the expert was not to apply in Mr Watkinss favour the presumption under the Scheme that he could no longer carry out the relevant tasks without assistance by reason of his VWF staging.
Mr Tennant examined Mr Watkins and, in a report dated 17 May 2013, he stated: Mr Watkins gives a good description of vasospasm and is graded 1V in this report as the white discolouration reaches the distal interphalangeal joint.
The only abnormality on testing was of a mild lack of dexterity.
As there is no other sensory loss in a warm environment, in my opinion this amounts only to HAVS grade Sn1.
There is certainly no justification for Sn3 at this examination, and to reach Sn2 would require evidence of reduced sensory perception, which I could not demonstrate.
Grading of 1V, 1Sn would not be expected to produce any disability in the domains tested below.
In response to further questions from Mr Watkinss solicitors, Mr Tennant confirmed on 23 June 2013 that Mr Watkins met the criteria for the diagnosis of HAVS.
He further stated that it was apparent at interview that the client had devolved certain tasks to others in the long term.
Mr Watkins died in January 2014 at the age of 72.
His daughter, Mrs Jean Edwards, was appointed to continue the claim on behalf of Mr Watkinss estate.
The trial of the claim against the appellant took place in the County Court at Leeds before Mr Recorder Miller in March 2016.
The parties had permission to rely on Mr Tennants written evidence at trial but an application by the appellant, made in advance of trial, for permission to call Mr Tennant was refused and that order was not appealed.
The statements of Mr Watkins were admitted as hearsay evidence.
In a reserved judgment, handed down on 16 May 2016, the judge held that the claim in negligence was not time barred, that the advice contained in the appellants letter dated 18 February 2003 had been negligent and that if Mr Watkins had received appropriate advice, he would probably have decided to reject the settlement offer of 9,478 and would have continued to pursue his services claim.
However, the judge also held that Mr Watkins had suffered no loss and accordingly he dismissed the claim against the appellant.
He observed: If, as here, expert or other evidence which post dates the settlement or other disposal of the original claim, establishes beyond any (or any but negligible) doubt that the claim could and would have been resolved only in one specific way had that evidence been available to the parties and the tribunal at the time, then the Court in the professional negligence action has the full facts adverted to by Laws LJ in Whitehead [v Searle [2009] 1 WLR 549, para 20] and should find accordingly, thereby avoiding an uncovenanted windfall or correcting injustice to a claimant whose case has turned out to be undoubtedly stronger than had been previously assumed.
In the case of Mr Watkins, I can and should find that his chose in action has been shown to have had no value given the damages actually paid to him; another way of putting it is that, as I have found on the full facts, his services claim had no chance of success, for the same reason: it is beyond a peradventure that faced with Mr Tennants clinical findings and conclusions any award would have fallen short of 9,478.
It is fanciful to assume otherwise.
The judge took that view because on the consultants findings Mr Watkins would only have been offered 1,790 for general damages and a services claim would not have been possible.
On appeal to the Court of Appeal (Underhill, Irwin and Singh LJJ) the appeal was allowed: [2018] PNLR 30.
The Court of Appeal, influenced by the decision of the Court of Appeal in Perry v Raleys Solicitors [2017] PNLR 27 (more recently reversed by this Court [2019] 2 WLR 636) held that the trial judge had been wrong to conduct a trial within a trial to determine the value of Mr Watkinss claim against the DTI and to determine the severity of his VWF.
It further held that the judge had been wrong to determine these matters on the basis of the evidence of Mr Tennant, since that evidence would not have been available at the time of Mr Watkinss notional services claim under the Scheme.
Irwin LJ observed (at para 70) that it would be particularly inappropriate to lose sight of what would have been the outcome under the Scheme by reference to after coming evidence which would not have been brought into being at the time.
The Court of Appeal further acknowledged exceptions in the case of fraud and in cases, such as Whitehead v Searle [2009] 1 WLR 549, where the consequences of a supervening event were of such a significant or serious scale that public policy required a departure from normal principles in order to do justice between the parties.
In its view, such circumstances did not exist in the present case.
The appellant now appeals to this court with the permission of this court.
Although the appellant sought to appeal on 14 (partly overlapping) grounds, permission was limited to the sole question of whether the prospects of success of the claim are to be judged as at the date when the claim was lost or at the date when damages are awarded and it directed that the parties consider the relevance of the principle in Bwllfa and Merthyr Dare Steam Collieries (1891) Ltd v Pontypridd Waterworks Co [1903] AC 426, namely that where the court assessing damages has knowledge of what has actually happened it should not speculate about what might have happened but base itself on what is now known to have happened. (See McGregor on Damages, 20th ed (2018), para 10 118.).
Although this was the reason why permission to appeal was granted, the Court has concluded, in the light of the wide ranging arguments presented to us, that the Bwllfa principle is not relevant in the particular circumstances of this case.
On behalf of the appellant, Mr Michael Pooles QC submits that the trial judge was right to rely on the evidence of Mr Tennant for four reasons. (1) In the circumstances of this case, the question whether Mr Watkins had suffered loss should be determined as at the date of the trial of the claim against the appellant, applying the Bwllfa principle. (2) In a professional negligence claim arising from personal injury litigation, the issue of loss should be determined as at the date of the trial of the professional negligence proceedings as it would have been in personal injury litigation (Golden Strait Corpn v Nippon Yusen Kubishika Kaisha (The Golden Victory) [2007] 2 AC 353, per Lord Bingham of Cornhill at para 13). (3) Even if the issue of loss should be determined at an earlier date, the Court should in making that determination take account of all of the evidence available at the trial of the professional negligence proceedings, following the decisions in Charles v Hugh James Jones & Jenkins [2000] 1 WLR 1278, Dudarec v Andrews [2006] 1 WLR 3002 and Whitehead v Searle, as this would enable the court to make a more accurate assessment of what the original personal injury claim was actually worth. (4) That evidence was needed in the present case to enable the issue of loss to be determined with all the adversarial rigour of a trial as required by the Supreme Court in Perry v Raleys Solicitors: [2019] 2 WLR 636, para 19.
On behalf of the respondent, Mr Richard Copnall submits that the court should assess the prospects of success as at the date when the claim was lost, on the facts as they were and the evidence available at that time, subject to the following established exceptions. (1) Evidence that would have been available, in the absence of negligence, at the time the claim was lost will be admissible (Charles; Dudarec v Andrews [2006] 1 WLR 3002). (2) Evidence of the original parties attitude to settlement at the time that the claim was lost will be admissible (Somatra Ltd v Sinclair Roche and Temperley [2003] 2 Lloyds Rep 855). (3) Evidence of dishonesty or misconduct will be admissible (Perry; Green v Collyer Bristow [1999] Lloyds Law Rep PN 798). (4) Evidence of any accomplished fact within the meaning of the Bwllfa principle will be admissible.
Discussion
We are concerned with a claim in the tort of negligence.
Although the claim for breach of contract was time barred, the judge held that, by virtue of section 14A of the Limitation Act 1980, as inserted by section 1 of the Latent Damage Act 1986 (Special time limit for negligence actions where facts relevant to cause of action are not known at date of accrual), the claim in negligence was not.
In order to succeed in negligence against Mr Watkins former solicitors his estate had to establish a negligent breach of duty, causation and loss.
A negligent breach of duty was found by the judge, on the basis that the appellants letter of 18 February 2003 was misleading and deficient in a number of respects and those features were not corrected in the subsequent conversation between Mr Watkins and Mrs Kinsey on 23 February 2003.
There has been no appeal against that conclusion.
In addition, the judge made a finding that, had Mr Watkins received non negligent advice, he would have pursued an honest services claim.
That claim had already been notified and supporting statements provided.
The judge considered that, had Mr Watkins been more fully and accurately informed as to where he stood and how the scheme operated, he would probably have instructed Mrs Kinsey to let the services claim and a MAP 2 medical examination proceed.
The judge expressly rejected the submission on behalf of the appellants that, in reality, Mr Watkins had realised that his evidence in support of the services claim was grossly exaggerated or invented and, as a result, he had discontinued it for fear of getting into trouble or losing out financially further down the line.
There has been no appeal against that conclusion.
Accordingly, the issue considered by the Supreme Court in Perry v Raleys Solicitors does not arise in this case and, in my view, that decision has no direct bearing on the issues which we have to decide.
For the claim by Mr Watkinss estate to succeed, however, it is also necessary to prove loss.
There is a legal burden on the estate to prove that in losing the opportunity to pursue the claim Mr Watkins has lost something of value ie that his claim had a real and substantial rather than merely a negligible prospect of success.
It is only if the estate can establish that Mr Watkinss chances of success in pursuing his service claim were more than negligible that it is appropriate to go on to evaluate those chances on a loss of chance basis by making a realistic assessment of what would have happened had the original claim been pursued (Mount v Barker Austin [1998] PNLR 493 per Simon Brown LJ at pp 510D to 511C).
In the view of Mr Recorder Miller, the present claim failed at the first hurdle.
On the basis of the evidence of Mr Tennant the judge considered that Mr Watkinss chose in action had no value given the damages actually paid to him.
It was clear, in his view, that any award would have fallen short of the 9,478 which Mr Watkins had already received under the settlement.
Against this background, the argument before this court has focussed on the issue of the admissibility in a professional negligence action of subsequently acquired evidence relating to the value of the original claim, an issue on which we have heard elaborate submissions.
However, it is not necessary to express a concluded view in relation to these matters because the evidence contained in Mr Tennants report was not relevant to any issue before the court in the professional negligence proceedings.
As a result, the authorities relied on by the appellant are not relevant in the particular circumstances of this case.
It is important not to lose sight of the fact that Mr Watkinss original claim was a claim within the Scheme and not one made in the course of conventional civil litigation.
It is necessary to consider whether Mr Watkinss original claim, which was accepted by the judge to be an honest claim, was of more than negligible value within the context of the Scheme.
When the evidence of Mr Tennant is considered in this light, it is not the knock out blow which the appellant suggests.
The Scheme has been described by Irwin LJ in the Court of Appeal and by counsel before us as a rough and ready scheme.
This is a fair description.
It was intended to provide an efficient and economic system for dealing with a huge number of claims in a way that was broadly fair.
No doubt, it was considered that the decision not to require a detailed medical assessment of the level of disability of every claimant for a services award was justified by the savings in cost.
A deliberate decision was taken to deal with services claims by reference to presumptions derived from the diagnosis and staging found at MAP 1, as opposed to requiring a precise assessment of the underlying disability.
Medical assessment in the MAP 2 procedure was to be limited to the issue of co morbidity.
More specifically, there was no provision within the Scheme whereby the DTI could appeal against a general award, nor did the Scheme contemplate reopening or reassessing the diagnosis or staging of the condition or the entitlement to a general award established at MAP 1.
Recoverability under the Scheme, therefore, did not depend on entitlement at common law nor did it correspond with what might have been the outcome in conventional civil proceedings.
In this case Mr Watkins lost the value of his claim under the Scheme as it would have been administered in accordance with its terms.
In this regard it is instructive to consider why Judge Hawkesworth QC made the order in the professional negligence proceedings for further medical reports.
In his judgment of 3 May 2011, he explained that it was common ground that the claims were for the lost chance to bring a claim under the MAP 2 procedure.
On behalf of the claimants it was contended that the scope of the medical evidence should be a replication of the MAP 2 procedure which was limited to the issue of comorbidity, while on behalf of the defendants it was contended, initially at least, that there should be a more comprehensive medical examination by a consultant specialist which could revisit the original diagnosis of VWF as well as address the issue of comorbidity.
For the claimants it was submitted that because the MAP 2 examination did not revisit or reopen the original diagnosis it would not be appropriate for the medical expert in the professional negligence proceedings to address them.
During the hearing, however, it became clear that counsel for the defendants were not contending for a medical examination in order to revisit the diagnosis and staging of the VWF condition, but in order to evaluate the claimants case on causation ie in order to assess whether a claimants failure to pursue a services claim arose from negligent advice or from an inability to assert truthfully that he had lost the ability to perform those specified activities which would enable him to bring a claim for a services award.
It was said that the extent of disability was relevant to that issue, while the medical examination in the MAP 1 procedure was predominantly directed at diagnosis and staging of the condition as opposed to the level of disability.
Miss Foster [who appeared for four defendant firms of solicitors] did not seek to say that the fact of a MAP 1 diagnosis and its consequences for the subsequent progression to a services claim could be called into question.
However, the defendants were entitled to investigate the implied averment that had the claimant been properly advised he would have made a services claim. (at para 7) The judge seems to have made the order for expert reports on that basis but expressly left open (at para 9) the question as to the extent to which any findings by an examining doctor could or could not be taken into account in valuing the loss of a chance to bring a services claim.
The joint letter of instruction sent to Mr Tennant on 21 January 2015 (set out at para 13, above) reflected this reasoning.
As a result, the instructions and the resulting medical examination and report departed significantly from those in a MAP 2 procedure.
Most significantly, the expert was not to apply the presumption resulting from the diagnosis and staging at MAP 1 which applied under the Scheme.
Mr Tennants report may have been relevant to the issue of causation in the claim by Mr Watkinss estate against his former solicitors.
However, the judge decided that issue in favour of the estate, finding that if Mr Watkins had received non negligent advice he would have pursued an honest services claim.
That conclusion has not been challenged on appeal.
In my view, Mr Tennants report is not relevant to the issue of loss.
We must assume that had Mr Watkins pursued a services claim the Scheme would have operated in accordance with its provisions.
The conclusion of Dr Chadha that Mr Watkins was suffering at the level of 3V, 3Sn bilaterally had entitled him, under the tariffs applied within the Scheme, to an award of general damages of 9,478 and also created a rebuttable presumption that he did require assistance with the tasks prescribed under Schedule 7 of CHA.
Mr Watkins would have had to undergo a second medical examination but that would have been limited to assessing co morbidity.
There would have been no equivalent of Mr Tennants report, no reassessment of the diagnosis or staging found in the MAP 1 procedure and no reduction of the general award.
Entitlement to a services award would have been decided in accordance with the procedure described at paras 4 8 above.
The appellant now seeks to add to the counterfactual situation the effect of a further medical examination and report which would never have been commissioned.
There is no justification for such a modification of the counterfactual situation and the judge erred in taking it into account when concluding that the lost claim was of no value.
When Mr Tennant conducted his examination of Mr Watkins and prepared his report, he acted in accordance with his instructions in expressing his view as to whether and to what extent Mr Watkins was disabled by HAVS as a matter of fact and, to the extent he was, unable to carry out without assistance the tasks which formed the basis of his services claim.
His opinion is set out at para 14 above.
However, he then proceeded to set out his opinion on co morbidity in accordance with the Scheme by taking as his starting point the conclusions of Dr Chadha (3V, 3Sn) as in the MAP 1 report and grading disability for the purpose of a services claim on that basis.
In doing so he provided an insight into the value of the claim which Mr Watkins lost.
For each of the five activities relevant to Mr Watkinss case (car washing, car maintenance, gardening, DIY and decorating) his disability is assessed as complete.
Mr Tennant states that on the basis of the MAP 1 report his HAVS would be expected to produce severe or complete disability in the tested domains.
The only comorbidity to take into account is Mr Watkinss arthritic knees and this results in a comorbidity finding of moderate in all of the tested domains other than gardening where the finding is severe.
In these circumstances I am unable to accept that the services claim had no chance of success and that the claim lost was of no value.
At the heart of this case lies Mr Pooless assertion that Mr Tennants report shows that because of an error Mr Watkins had already been over compensated and that a professional negligence claim should reflect his true entitlement to just compensation and not what would have been an uncovenanted windfall.
However, this overlooks the nature and operation of the Scheme.
The payment of a services award to Mr Watkins would simply have been a consequence of the way in which the Scheme operated and was intended to operate.
We are not concerned here with a claim in conventional civil proceedings but with a scheme possessing unusual features.
The evidence in question, the report of Mr Tennant, is simply not relevant when constructing the counterfactual situation which would have arisen if Mr Watkinss solicitors had fulfilled their duty to him.
I consider, therefore, that the Recorder erred in concluding that Mr Watkinss services claim could and would have been resolved only in one specific way had Mr Tennants report, or its equivalent, been available to IRISC and in concluding that the claim had been shown to have no value given the award already paid.
On the contrary, Mr Watkins had lost a claim under the Scheme of some value and the Recorder should have proceeded to assess its value on a loss of opportunity basis.
I would therefore dismiss the appeal and remit the matter for assessment of the value of the loss of the opportunity to pursue the services claim.

Output:
This appeal relates to a compensation scheme (the Scheme) set up in 1999 by the Department for Trade and Industry to provide tariff based compensation to miners employed by the British Coal Corporation (British Coal) who suffered from a medical condition called vibration white finger (VWF) as a result of excessive exposure to vibration through the use of vibratory tools.
The Scheme provided for compensation to be paid for pain, suffering and loss of amenity (General Damages) and handicap on the labour market and other financial losses including past and/or future loss of earnings (Special Damages), which could include a services award to cover the need for assistance in performing specified domestic tasks.
Rather than conducting an individual assessment of each claimants ability to carry out the specified tasks, the Scheme applied a presumption based on the condition reaching a certain level of severity.
Mr Arthur Watkins was employed by British Coal as a miner from 1964 until 1985 and had developed VWF by the early 1980s.
In 1999 he instructed the appellant to act for him in relation to a claim under the Scheme.
Findings from a medical examination and interview indicated that Mr Watkins could obtain General Damages and qualified for the presumption in his favour that he satisfied the requirements for a services award.
Mr Watkins sought a services award.
In 2003 he was instead offered the tariff award for General Damages in full and final settlement of his claims.
The appellant wrote to Mr Watkins on 18 February 2003 reporting the offer.
After a telephone conversation with an employee of the appellant, Mr Watkins accepted the offer.
In 2008, Mr Watkins instructed new solicitors to bring a claim against the appellant for professional negligence, on the basis that as a result of the appellants negligence Mr Watkins had lost the opportunity to bring a services claim under the Scheme.
Mr Watkins died in 2014 and his daughter, Mrs Jean Edwards, was appointed to continue the claim on behalf of his estate.
The first instance court held that the letter of 18 February 2003 and the advice given had been negligent and that had Mr Watkins received appropriate advice he would probably have rejected the offer and pursued his services claim.
A jointly instructed medical expert, who had been instructed not to apply the presumption that would have applied under the Scheme, provided a report that concluded Mr Watkinss symptoms would have been insufficient to succeed on a services claim.
The court therefore held that Mr Watkins had suffered no loss and dismissed the claim.
Mr Watkins successfully appealed to the Court of Appeal, which decided that the trial judge had been wrong to determine the value of the services claim on the basis of evidence that would not have been available at the time of the notional claim.
The appellant seeks to appeal that decision.
The issue in the appeal is whether, in assessing the prospects of success of the negligence claim, the court should have taken account of the further medical report.
The Supreme Court unanimously dismisses the appeal and remits the matter for assessment of the value of the loss of the opportunity to pursue the services claim.
Lord Lloyd Jones gives the judgment, with which all members of the Court agree.
In order to succeed in his claim in the tort of negligence, Mr Watkins had to establish a negligent breach of duty, causation and loss.
The trial judge found that there had been a negligent breach of duty and that causation was established.
Neither conclusion has been appealed [22].
To succeed, therefore, Mr Watkinss estate must prove loss, specifically that in losing the opportunity to pursue the claim Mr Watkins lost something of value, i.e. that his services claim had a real and substantial rather than merely a negligible prospect of success [23].
Mr Watkinss original claim was within the Scheme, and it is therefore necessary to consider whether the claim was of more than negligible value within the context of that Scheme [25].
The expert report was concerned with causation, not loss, and was prepared to assist in the assessment of whether Mr Watkinss failure to pursue a services claim arose from negligent advice or from an inability to assert truthfully that he had lost the ability to perform activities that would qualify him for a services award [27].
As a result, the expert was instructed not to apply the presumption used under the Scheme [28].
Had Mr Watkins pursued a services claim it would have proceeded on the basis of the Schemes procedures.
He would have had to undergo only a limited second medical examination and there would have been no equivalent of the experts report.
His entitlement to a services award would have been decided by the application of the Schemes presumption.
There was no justification for considering a further medical examination and report which would not have been commissioned under the Scheme and therefore the judge erred in taking this into account [29].
Given other findings in the expert report, the court is unable to accept that the services claim had no chance of success so that the lost claim was of no value [30].
The first instance judge should have proceeded to assess the value of the lost claim on a loss of opportunity basis.
The court therefore dismisses the appeal and remits the matter for that assessment [32].


Input:
For some four centuries, the United Kingdom and its component nations have been a major source of emigration.
As a result, schemes for defining the right to British nationality have been complicated by the need to accommodate those born abroad but having significant connections with the United Kingdom by descent.
Until 1983, the basic principle was that British nationality by descent was available to any person whose father was a citizen of the United Kingdom and Colonies.
But if his father was himself a citizen by descent only, then unless the child was born in a British controlled territory or the father was in Crown service at the time of the birth, it was normally a condition that the birth should be registered at a British consulate within a year.
In no case could citizenship by descent be transmitted through the female line.
Regulations governing the registration of births by British consuls restricted registration to those eligible for British citizenship.
The respondent, Shelley Elizabeth Romein, was born in the United States on 16 June 1978.
Her father was a US citizen with no personal connection to the United Kingdom.
Her mother had been born in South Africa and was a citizen of the United Kingdom and Colonies by descent because her father (Ms Romeins grandfather) had been born in the United Kingdom on 1 November 1905.
Ms Romeins mother swore an affidavit in which she said that while pregnant with her she spent some time in South Africa and contacted the British consulate in Johannesburg to enquire about British citizenship for her unborn child.
She was told, correctly, that the child would not be eligible because her only claim by descent was through her mother.
With effect from 1 January 1983, the restriction to descent in the male line was abrogated by legislation for those born after that date, and 20 years later in 2003 the legislation was retrospectively amended so as to allow those born before 1983 to acquire citizenship through the female line.
However, when Ms Romein, who had been born under the old regime, sought to take advantage of the change in 2013, her application for citizenship was rejected on the ground that she was unable to satisfy the statutory condition of registration within a year.
The reason why she was unable to do so was that although the law was now deemed at all material times to have allowed claims to citizenship by descent through the female line, the staff of British consulates, acting entirely properly under the law as it actually was, would have refused to register her birth because she was ineligible.
A result so paradoxical clearly calls for scrutiny.
Legislative history
The exclusion of claims to British citizenship by descent through the female line is a curious survivor of redundant social and political priorities.
At common law, English nationality was based on allegiance.
It was acquired by birth within the Kings realm or by marriage to an Englishman.
Nationality by descent was wholly statutory and available under a statute of 1351 only where the child was born outside the realm to parents both of whom were English: see 25 Ed III, cap 1.
It followed that an English woman who married an alien could not transmit her English nationality to her child born outside the realm.
The Naturalization Act 1870 abolished the common law principle that allegiance was indelible, and provided for a woman to lose her British nationality upon marriage to an alien.
From this it followed that no question could arise of transmission of British citizenship by descent through the female line alone.
The position was formalised by the British Nationality and Status of Aliens Act 1914, which was the first statute comprehensively regulating eligibility for British nationality.
A valuable account of the historical background to this legislation will be found in M P Baldwin, Subject to Empire: Married Women and the British Nationality and Status of Aliens Act, Journal of British Studies, xl (2001), 522.
The Act arose from the Imperial Conference of 1911, in which the United Kingdom and the Dominions had agreed upon the principle of a common imperial nationality.
A number of its provisions reflected concern among the Dominions that a common imperial nationality would undermine their attempts to restrict the right of entry by undesirables.
The common nationality was therefore restricted with a view to meeting these concerns.
The 1914 Act repealed the statute of 1351.
Section 10 reproduced the effect of the Naturalization Act 1870 by providing that the British wife of an alien would become an alien on her marriage.
Consistently with these provisions, section 1(1) of the 1914 Act as originally enacted defined a British subject as (a) any person born within His Majestys dominions and allegiance, and (b) any person born elsewhere whose father was a British subject.
This provision was amended by the British Nationality and Status of Aliens Acts of 1918 and 1922.
In its final form, the Act made (b) dependent on the father satisfying any one of five conditions, the most significant of which was condition (v), which was that the birth of a child born outside His Majestys dominions must be registered at a British consulate within a year or in special circumstances and with the consent of the Secretary of State within two years.
Section 1 of the British Nationality and Status of Aliens Act 1943, repealed condition (v) and replaced it with a provision to substantially the same effect but authorising the Secretary of State to permit registration at any time.
The Report of the Joint Select Committee on the Nationality of Married Women (24 July 1923) recorded the main reasons advanced by the Foreign Office in support of these measures: the dominant role of the husband in shaping the cultural affiliation of the family, the problems under British diplomatic practice of affording consular protection to British citizens with dual nationality, the need to maintain commonalty with the Dominions and the desirability of deterring certain mixed marriages which were in the womens case nearly always most undesirable.
The Act of 1914 was superseded with effect from 1 January 1949 by the British Nationality Act 1948, which was the statute in force at the time of Ms Romeins birth.
The occasion for the new Act was the Commonwealth Conference of 1947 on nationality and citizenship, which agreed that each of the Dominions should in future legislate for its own citizenship instead of sharing in a common British citizenship.
This made it possible for the new Act to abrogate the rule that British women who married aliens lost their nationality.
But it did not alter the basic principles on which citizenship by descent was available.
Section 5 provided: 5.(1) Subject to the provisions of this section, a person born after the commencement of this Act shall be a citizen of the United Kingdom and Colonies by descent if his father is a citizen of the United Kingdom and Colonies at the time of the birth: Provided that if the father of such a person is a citizen of the United Kingdom and Colonies by descent only, that person shall not be a citizen of the United Kingdom and Colonies by virtue of this section unless (a) that person is born or his father was born in a protectorate, protected state, mandated territory or trust territory or any place in a foreign country where by treaty, capitulation, grant, usage, sufferance, or other lawful means, His Majesty then has or had jurisdiction over British subjects; or (b) that persons birth having occurred in a place in a foreign country other than a place such as is mentioned in the last foregoing paragraph, the birth is registered at a United Kingdom consulate within one year of its occurrence, or, with the permission of the Secretary of State, later; or (c) that persons father is, at the time of the birth, in Crown service under His Majestys government in the United Kingdom; or that person is born in any country (d) mentioned in subsection (3) of section one of this Act in which a citizenship law has then taken effect and does not become a citizen thereof on birth.
If the Secretary of State so directs, a birth shall be (2) deemed for the purposes of this section to have been registered with his permission notwithstanding that his permission was not obtained before the registration.
Nothing was done to remedy the inability of women to transmit British nationality by descent until 1979.
Under section 7(1) of the Act of 1948 the Secretary of State had a discretion to cause a minor child of a British citizen to be registered as a British subject on the application of his or her parent or guardian.
On 7 February 1979, Mr Merlyn Rees, the then Home Secretary, made a written statement in the House of Commons that he would in future exercise this discretion in favour any minor child of a woman who was herself born in the United Kingdom.
He added that in due course legislation would be introduced to address more generally the transmission of citizenship in the female line: Hansard HC vol 962, cols 203 204W.
Since Ms Romeins mother had not been born in the United Kingdom, this change of policy made no difference to her situation.
Neither did the promised legislation, when it was eventually enacted.
The British Nationality Act 1981, which came into force on 1 January 1983, removed the limitation to descent through the male line for the future.
It also abolished acquisition of nationality by children of British nationals by descent by the registration of their births at a consulate.
For a five year transitional period nationality could still be acquired in similar circumstances by registration with the Secretary of State (but still restricted, as before 1983, to descent through the male line).
In April 1986, the United Kingdom ratified the United Nations Convention on the Elimination of All Forms of Discrimination Against Women.
Article 9.2 of the Convention required state parties to grant equal rights to men and women with respect to the nationality of their children.
However, the United Kingdoms ratification was subject to a reservation that it would continue to apply the five year transitional provision in the Act of 1981.
Those born before the commencement of the 1981 Act continued to benefit from the Rees policy until the end of 2000, when the last person born while the 1948 Act was in force ceased to be a minor.
There was then a hiatus of some two years until 30 April 2003, when section 13 of the Nationality, Immigration and Asylum Act 2002 came into force.
This retrospectively amended the Act of 1981 by inserting a new section 4C. Section 4C was subsequently replaced by a revised section 4C to similar but not identical effect, which was introduced into the 1981 Act by section 45(3) of the Borders, Citizenship and Immigration Act 2009.
In this form it was in force at the time of Ms Romeins application, and indeed still is.
It provides as follows: 4C Acquisition by registration: certain persons born before 1983 (1) A person is entitled to be registered as a British citizen if (a) he applies for registration under this section, and (b) he satisfies each of the following conditions. (2) The first condition is that the applicant was born before 1 January 1983. (3) The second condition is that the applicant would at some time before 1 January 1983 have become a citizen of the United Kingdom and Colonies (a) under section 5 of, or paragraph 3 of Schedule 3 to, the 1948 Act if assumption A had applied, (b) under section 12(3), (4) or (5) of that Act if assumption B had applied and as a result of its application the applicant would have been a British subject immediately before 1 January 1949, or (c) under section 12(2) of that Act if one or both of the following had applied (i) assumption A had applied; (ii) assumption B had applied and as a result of its application the applicant would have been a British subject immediately before 1 January 1949. (3A) Assumption A is that (a) section 5 or 12(2) of, or paragraph 3 of Schedule 3 to, the 1948 Act (as the case may be) provided for citizenship by descent from a mother in the same terms as it provided for citizenship by descent from a father, and (b) references to the applicants mother. references in that provision to a father were (3B) Assumption B is that (a) a provision of the law at some time before 1 January 1949 which provided for a nationality status to be acquired by descent from a father provided in the same terms for its acquisition by descent from a mother, and (b) references to the applicants mother. references in that provision to a father were (3C) For the purposes of subsection (3B), a nationality status is acquired by a person (P) by descent where its acquisition (a) depends, amongst other things, on the nationality status of one or both of Ps parents, and (b) does not depend upon an application being made for Ps registration as a person who has the status in question. (3D) For the purposes of subsection (3), it is not to be assumed that any registration or other requirements of the provisions mentioned in that subsection or in subsection (3B) were met. (4) The third condition is that immediately before 1st January 1983 the applicant would have had the right of abode in the United Kingdom by virtue of section 2 of the Immigration Act 1971 (c 77) had he become a citizen of the United Kingdom and Colonies as described in subsection (3) above. (5) For the purposes of the interpretation of section 5 of the 1948 Act in its application in the case of assumption A to a case of descent from a mother, the reference in the proviso to subsection (1) of that section to a citizen of the United Kingdom and Colonies by descent only includes a reference to a female person who became a citizen of the United Kingdom and Colonies by virtue of section 12(2), (4) or (6) only of the 1948 Act, section 13(2) of that Act, (a) (b) (c) paragraph 3 of Schedule 3 to that Act, or (d) (No 2) Act 1964. section 1(1)(a) or (c) of the British Nationality In other words, applications for citizenship by descent through the female line are now to be dealt with on the assumption that the law had always provided for citizenship by descent from the mother on the same terms as it provided for citizenship by descent from the father.
Application to Ms Romeins case
The paradox of the Secretary of States decision in the present case is that although section 4C(3)(a) of the 1981 Act (as amended) and the associated Assumption A require her to assume that section 5 of the 1948 Act had always provided for citizenship by descent from a mother in the same terms as it provided for citizenship by descent from a father, nevertheless an application for citizenship on that basis must fail because no such assumption would or could have been made by the officials responsible for registration at the time.
To this conundrum there are logically only three possible solutions: (1) Section 4C requires one to assume not only that section 5 of the 1948 Act had always provided for citizenship by descent in the female line, but that the historic facts were different, ie that consular officials in fact acted on that basis.
The argument is that in terms of subsection (3) Ms Romein would have become a citizen under section 5 of the 1948 Act if Assumption A had applied, because on that hypothesis consular officials would have registered her.
This is Ms Romeins case, which was substantially adopted by the Inner House. (2) Section 4C requires one to assume only that section 5 of the 1948 Act had always provided for citizenship by descent, but not to make any assumption that the facts were other than they were.
The result is that applications based on descent through the female line must fail in every case where citizenship was dependent on the fact of registration under section 5(1)(b).
This is the case which the Advocate General makes in support of the Secretary of States decision, and which was substantially accepted by the Lord Ordinary. (3) Effect cannot be given to the registration condition in section 5(1)(b) of the 1948 Act at all, as applied to applications for citizenship by descent through the female line, because insisting on that condition would nullify the practical effect of making Assumption A.
This possibility was raised with Counsel in the course of argument before us, but does not appear to have been considered below.
I start with the first hypothesis, which is the one that found favour with the Inner House.
There are formidable difficulties about the counterfactual assumption on which this hypothesis depends.
In the first place, Ms Romeins contention is that on the assumption made about the law in Assumption A, she would have acquired citizenship under section 5(1)(b) of the 1948 Act.
No other provision of that Act could be relevant to her case.
The registration condition is an integral part of section 5(1)(b).
If any effect is to be given to it, the only counterfactual assumption that would enable her application to succeed is that consular officials not only made Assumption A but actually registered the applicant as a British citizen.
But that assumption cannot be made consistently with subsection (3D), because registration is one of the requirements of section 5 of the 1948 Act, which is one of the provisions mentioned in subsection (3).
It follows that the decision maker cannot assume that the registration condition was met.
Since without such an assumption, one is left with the fact that she was not registered, she would not have become a citizen.
I cannot accept the view of the Inner House that subsection (3D) is concerned only to cast on the applicant the burden of proving his or her claim, without the assistance of any presumption of fact.
It does not say this.
Moreover, she would have that burden anyway.
Secondly, on the present hypothesis the question whether an applicant would have acquired citizenship under section 5(1)(b) of the 1948 Act if Assumption A is made, depends not just on what action consular registrars would have taken if the law had been in accordance with Assumption A, but on what steps the childs parents would have taken to have her registered on that assumption.
It so happens that in Ms Romeins case the answer is reasonably clear if her mothers affidavit is accepted.
Her mother would have received a different answer to her enquiry of the Johannesburg consulate and would have sought to register the birth.
If consular officials had made Assumption A in 1978, that attempt would have succeeded.
It is clear that Ms Romeins mother not only attached a high value to her unborn childs future nationality, but not realising the legal impediments, took some steps towards registering her.
Someone who knew about the legal impediments would have done nothing and generated no evidence of this kind.
Yet it is not obvious why that should make any difference.
There is a conceptual problem about making the operation of section 4C dependent on an enquiry conducted years later into the question whether a parent would before 1983 have wished or intended or attempted to avail herself of a right which did not then exist.
Thirdly, that problem is immeasurably increased when one examines the other implications of this approach.
Subsection (3D) applies to all the provisions mentioned in section 5 of the 1948 Act, including sections 5(1)(a) and (c).
There is nothing to suggest that claims under these provisions fall to be treated differently from those made under section 5(1)(b).
If the counterfactual assumption to be made includes the steps which the parents would have taken, then it would be open to an applicant to say that had the law allowed citizenship by descent in the female line the mother would have moved to a British controlled territory for the birth so as to qualify under section 5(1)(a), or one or other parent would have entered or continued in Crown service in time for the birth so as to qualify under section 5(1)(c).
It seems extremely unlikely that Parliament envisaged in 2002 or 2009 that the operation of this provision would depend on the practically unanswerable question what adjustments parents would hypothetically have made to their lives with a view to obtaining British citizenship for their children.
Subsection (3D) appears to have been added precisely to rule out any such unrealistic enquiries.
In my view the only counter historical assumptions authorised by the Act are Assumptions A and B.
However, the Advocate Generals case faces, as it seems to me, equally formidable objections.
He submits that Assumption A requires section 5 of the 1948 Act to be read as providing for citizenship by descent from a mother in the same terms as it provided for citizenship by descent from a father.
Since those terms included the registration condition in section 5(1)(b), effect must be given to that condition.
Subsection (3D) then provides that it is not to be assumed that these terms, including the registration condition, have been met.
In the absence of a statutory assumption to that effect, he submits, the applicant must demonstrate that the terms, including the registration condition, have in fact been met, just as a claimant to citizenship by descent from a father would have to do.
This accords with the literal words of section 4C.
The difficulty about it is that while purporting to give effect to section 5(1)(b), its actual result is to make section 4C inapplicable to substantially all claims based on it.
Section 4C(3)(a) assumes that by making Assumption A it will in principle be possible to claim citizenship by descent under section 5 of the 1948 Act, including section 5(1)(b).
But if (as the Advocate General submits) effect must be given to the registration condition in section 5(1)(b) of the 1948 Act, then citizenship by descent through the female line would be available under section 5(1)(b) only in those anomalous cases where persons claiming descent through the female line were registered at a British consulate by mistake or in defiance of the regulations.
There were apparently a few such cases.
It is difficult to discern any rational reason why the legislature should have intended to help only them.
Yet, except in cases where the birth of an ineligible child was registered unlawfully, the effect of the Advocate Generals reading is to close off section 5(1)(b) as a route to citizenship by descent from a mother.
Mr Johnston QC, who appeared for the Advocate General, suggested at one point that the intention was to allow claims to citizenship by descent from a woman only in the cases covered by section 5(1)(a), (c) or (d) of the 1948 Act where citizenship followed automatically from a specified state of affairs and was not dependent on steps being taken by any human actor.
But the problem about this argument, apart from being inconsistent with his primary argument (that the registration condition in section 5(1)(b) must be given effect), is that if it was intended to rule out all applications under section 4C based on section 5(1)(b) of the 1948 Act, the provision as drafted would be a most extraordinary way of doing it.
The obvious course would have been to limit the reference to section 5 of the 1948 Act in section 4C of the 1981 Act (as amended) to section 5(1)(a), (c) and (d).
In fact, it must be in the highest degree unlikely that Parliament entertained any such intention.
Since section 5(1)(b) of the 1948 Act seems likely to be the basis of a large proportion of applications under section 4C of the 1981 Act (as amended), it would have significantly undermined the purpose of the provision, for no reason that can readily be imagined.
I think that the solution to the paradox is more straightforward than either of these hypotheses.
Because section 4C requires one to assume that section 5 of the 1948 Act had always provided for citizenship by descent in the female line, it is not possible to apply the registration condition in section 5(1)(b) of the 1948 Act to those claiming on that basis, because its application would make nonsense of that assumption.
The past is done, and cannot be undone.
For nearly 70 years, British consuls have declined to register the births of those claiming by descent through the female line.
Throughout that period any purported registration of a person claiming citizenship only through the female line would have been legally ineffective.
Given that we are forbidden by section 4C(3D) to assume contrary to the facts that the birth was in fact registered, the only way in which effect can be given to section 4C(3) is I should, finally, notice two objections urged against this analysis, neither of to treat the registration condition in section 5(1)(b) as being inapplicable in cases where citizenship is claimed by descent from a mother.
which I would accept.
The first objection is that it leads to unacceptable discrimination between those born before and after the 1948 Act came into force on 1 January 1949.
This is because claims to citizenship by descent from a mother by persons born before 1 January 1949 are governed by section 4C(3)(b) and (c) of the 1981 Act (as amended).
These provisions deal with claims based on section 12(2) (5) of the 1948 Act, which provide subject to certain conditions for persons who were British subjects immediately before the commencement of the 1948 Act to become Citizens of the United Kingdom and Colonies on the commencement date.
The status of British subjects immediately before 1 January 1949 was governed by the 1914 Act, which contained provisions for citizenship by descent similar to those of the 1948 Act.
Section 4C(3)(b) and (c) of the 1981 Act (as amended) provides for Assumption B to be made where an applicant was born before 1 January 1949.
Assumption B is that the law in force before 1 January 1949, ie section 1 of the Act of 1914, provided for a nationality status to be acquired by descent from the mother on the same terms as from a father.
For this purpose, section 4C(3C) of the 1981 Act (as amended) provides that a nationality status is acquired by descent where its acquisition depends on the nationality status of one or both parents and does not depend upon an application being made for registration as a person who has that status.
The Advocate General submits that in the case of persons born before 1 January 1949 this rules out claims to citizenship by descent through the female line based on reading section 1(1)(b)(v) of the 1914 Act (which applied a condition of registration for any person born outside His Majestys dominions) in accordance with Assumption B.
The Inner House rejected this argument because section 1(1)(b)(v) of the 1914 Act did not require anything that could properly be described as an application for registration.
An application, they thought, suggested an appeal to discretion whereas registration of the birth of an eligible child was a right.
They concluded that subsection (3C) must be taken to refer to the registration of a person as having British nationality by naturalisation under regulations envisaged by section 19(1) of the 1914 Act.
This may be so, although it is right to point out that section 1(1)(b)(v) of the 1914 Act is the only statutory provision in force before 1 January 1949 which referred to registration as a requirement for British nationality by descent.
I should, however, prefer not to decide this point.
It does not affect Ms Romeins case.
For the purposes of this appeal, it is enough to point out that the provisions of subsection (3C) referring to the claims of those born before 1 January 1949 and those of subsection (3D) referring to the claims of those born after that date are in different terms.
If there is any difference between the treatment of the two categories under section 4C of the 1981 Act (as amended), it arises from differences in the language of the two subsections.
It is not anomalous.
The second objection is that failing to apply the registration condition to those claiming under section 4C would lead to a different form of gender discrimination, because claimants through the female line would be free of the registration condition whereas claimants through the male line under the previous law were not.
In other words there would be a difference of treatment between (i) persons who could have been registered as citizens because their fathers were citizens, but for whatever reason were not, and can do nothing about it, and (ii) persons who could not have been registered because their only claim was through their mother, in relation to whom no registration condition arises.
I do not regard this as anomalous either.
There is no discrimination between applicants, whether by gender or otherwise.
There was historic discrimination between their parents, since a father was held to transmit his citizenship to his children while a mother was not.
Section 4C simply corrects the subsisting consequences for their children of this historic discrimination.
There is no question of current discrimination.
Disposal
I would dismiss the appeal and affirm the decision of the Inner House, albeit for the rather different reasons which I have given.

Output:
Under section 5(1) of the British Nationality Act 1948 the general rule was that British citizenship was available to a person by descent if his or her father was a citizen of the United Kingdom and Colonies at the time of the persons birth.
But, if the persons father was himself a citizen by descent only, then unless either the person was born in a British controlled territory or the father was in Crown service at the time of the birth, it was normally a condition under section 5(1)(b) that the persons birth should be registered at a British consulate within a year.
Citizenship by descent could not be transmitted through the female line.
Regulations permitted a British consul to register a birth only if the child was eligible for British citizenship.
The Respondent, Shelley Elizabeth Romein, was born in the USA in 1978.
The 1948 Act was in force at that time.
Ms Romeins father was a US citizen with no personal connection to the UK.
Her mother had been born in South Africa and was a citizen of the United Kingdom and Colonies by descent, because her father (Ms Romeins grandfather) had been born in the UK.
Ms Romeins mother swore an affidavit in which she said that, while pregnant with her and in South Africa, she contacted the British consulate in Johannesburg to enquire about British citizenship for her unborn child.
She was correctly told that the child was ineligible because her only claim by descent was through her mother.
The British Nationality Act 1981 removed the restriction to descent through the male line for those born after 1 January 1983 (subject to a five year transitional period).
The 1981 Act was amended retrospectively in 2003 and 2009.
Section 4C of the amended 1981 Act, as it stood when Ms Romein applied for citizenship and as it now stands, requires applications for citizenship to be dealt with on the assumption that the law had always provided for citizenship by descent from the mother on the same terms as it provided for citizenship by descent from the father.
However, in 2013 when Ms Romein sought to take advantage of the change, her application for citizenship was rejected because she was unable to satisfy the condition of registration within a year.
The reason why she was unable to do so was that although the law was now deemed at all material times to have allowed claims to citizenship by descent through the female line, at the time of Ms Romeins birth in 1978 the staff of British consulate, acting entirely properly under the law as it actually was, would have refused to register her birth because she was ineligible for citizenship.
Ms Romein applied for judicial review of the decision refusing her citizenship application.
The Lord Ordinary dismissed that application for judicial review.
Ms Romein appealed to the Inner House of the Court of Session which allowed her appeal, quashed the refusal of her citizenship application, and remitted her citizenship application for reconsideration.
The Supreme Court unanimously dismisses the appeal, although for reasons other than those given by the Inner House.
Lord Sumption gives the judgment, with which Lady Hale, Lord Reed, Lord Hodge and Lady Black agree.
The refusal of Ms Romeins citizenship application, notwithstanding the assumption in section 4C, on the ground that the consular staff would have properly refused to register her birth is a paradoxical result, calling for scrutiny [3].
There are logically only three possible solutions to this conundrum [9].
The first approach is that Section 4C requires one to assume not only that the law had always provided for citizenship by descent through the female line, but that consular officials at the time in fact acted on that basis.
This is Ms Romeins case, which the Inner House substantially adopted [9(1)].
This involves formidable difficulties.
First, the counterfactual assumption that the consular officials would have registered the birth is inconsistent with section 4C(3D), according to which it is not to be assumed that the registration requirement was met.
The Court cannot accept the view of the Inner House that section 4C(3D) serves only to cast on the applicant the burden of proving his her of claim without the assistance of any presumption of fact.
Subsection (3D) does not say that.
Moreover, the applicant would bear the burden of proving his or her claim anyway.
Second, there is a conceptual problem about making the operation of section 4C dependent on an enquiry conducted years later into the question of whether a parent would have wished or intended or attempted to take advantage of a then non existent right.
Third, if the counterfactual assumption includes an assumption about the steps which the parents would have taken with a view to obtaining British citizenship for their children, then it would be open to an applicant to seek citizenship by descent on the basis that the mother would have moved to a British controlled territory for the birth, or that a parent would have entered or continued in Crown service in time for the birth.
It seems extremely unlikely that Parliament expected the operation of section 4C to depend on that practically unanswerable question.
Subsection (3D) appears to have been added precisely to rule out such unrealistic enquiries [10].
The second approach is that section 4C requires one to assume only that the law had always provided for citizenship by descent, but not to make any assumption that the facts were other than they actually were.
This is the Advocate Generals case, which the Lord Ordinary substantially adopted.
This accords with the literal words of section 4C, but its result is that citizenship by descent through the female line would be available under section 5(1)(b) of the 1948 Act only where persons were registered by mistake or in defiance of the regulations.
It is difficult to see why Parliament should have intended to help only them.
The Court cannot accept the suggestion that the intention behind section 4C was to allow claims to citizenship by descent from a woman only in cases where citizenship followed automatically from certain specified circumstances and was not dependent on a person taking steps, such as registering a birth.
Section 4C as drafted would be an extraordinary way of doing that.
Parliament is highly unlikely to have had any such intention.
It would have significantly undermined the purpose of section 5(1)(b) of the 1948 Act for no discernible reason [9(2) 11].
The solution is to treat the registration condition in section 5(1)(b) as inapplicable in applications for citizenship by descent from the mother.
This is the only way to give effect to section 4C(3), given that section 4C(3D) precludes any counterfactual assumption that the birth was registered [9(3) 12].
There are two objections to this solution.
The Court accepts neither.
The first is that it is said to lead to unacceptable discrimination between those born before and after the 1948 Act came into force.
The Court prefers not to decide this point.
It does not affect Ms Romeins case.
It is enough to point out that, if there is any difference between the treatment of those two categories of people, it arises from the wording of the 1981 Act (as amended) [13 14].
The second objection is that this solution leads to a different form of gender discrimination, because claimants through the female line would be free of the registration condition whereas claimants through the male line under the previous law were not.
This is not anomalous either: there is no current discrimination between applicants.
There was historic discrimination between their parents.
Section 4C simply corrects the remaining consequences [13, 15].