What happens if you realize that your lawyer has given you bad advice or that his inaction has penalized you? You can assign it. But, even if the judge gives you reason, he will consider that you have only lost a chance to be well advised and will only compensate you partially. This notion of loss of chance often arouses misunderstanding. It intervenes, in particular, each time a litigant has suffered damage due to the failure of a professional to fulfill his duty to inform or advise. A few examples help to better understand this concept:
- The banker and the duty to advise
Take, to begin with, the case of a borrower, Mr. X, who has taken out insurance that is supposed to cover him in the event of illness with his bank’s partner insurer. The day he fell ill, the insurer refused to cover the monthly payments for his loan, on the grounds that his illness was excluded by his contract.
Mr. X attacks his bank, for breach of his duty to advise. The magistrates give him reason: the banker should have enlightened him on the“mismatch” of the group insurance contract to his situation. But they do not condemn the banker to pay him the compensation refused by the insurance.
The magistrates consider, in fact, that there is a “uncertainty on the attitude that the client would have had, correctly advised: would he have found a more suitable contract? Would he have taken it? Would this one have played without limitation? Failing to know, they conclude that the client has only “lost a chance” to have subscribed to an insurance adapted to his needs.
However, according to the accepted formula, compensation for the loss of chance “cannot be equal to the advantage that this chance would have provided if it had materialized”. The magistrates therefore only grant a percentage of the amount that would have been received, in the event of subscription to the right contract. The calculation of this percentage, which is totally opaque, is also disconcerting.
The Poitiers Court of Appeal thus judged, on June 29, 2021, that Crédit Agricole should not have let its client, a man over 50 with health problems, subscribe to an insurance contract from the CNP excluding all illnesses, and not having covered his total incapacity for work resulting from a heart attack. It considers that the victim’s loss of opportunity should be set at “25% of his damage” (i.e. some 100,000 euros, for a loan of 650,000 euros).
On February 9, 2021, for a similar problem (borrower suffering from lumbosciatalgia, not covered by CNP during his temporary work stoppage), the Reims Court of Appeal considers that the loss of opportunity must be set at “10% of the amount remaining due under his mortgage”, i.e. 10,900 euros (while the uncovered maturities represented double).
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