From failed claim to ineffective representation: the QFC Court’s adoption of the loss of chance doctrine

On 15 March 2026, the Qatar Financial Centre Civil and Commercial Court Appellate Division (the “QFC Court”) refused two applications: (i) for permission to appeal and (ii) for permission to admit fresh evidence. The Applicants sought to challenge judgments of the First Instance Circuit dismissing their claims and awarding costs against them.

The Court expressly noted that “their lawyers had not properly adduced evidence which may have enabled them to do so". It went further, identifying a potential claim against those lawyers for “the loss of a chance of bringing a claim against N”.  In doing so, the Court effected a deliberate juridical shift: it reframed the relevant harm, not as the investment loss itself, but as the loss of a procedurally viable opportunity to pursue an arguable claim.

The loss of chance doctrine

The Court did not hold that competent litigation would have guaranteed success. Instead, it identified a distinct juridical injury: the loss of a real and valuable litigation opportunity caused by professional failure. This reflects the orthodox structure of a loss of chance analysis.

Importantly, the doctrine was not deployed as a primary measure of damages in the underlying investment dispute. Rather, it was recognised as a residual remedy for professional negligence. This preserves the finality of the original proceedings while acknowledging that negligent representation may give rise to a separate and compensable loss.

The Court’s reasoning also reflects a clear causal chain. Available evidence was not obtained or properly presented, the evidential record remained deficient, the claims failed, and adverse costs followed. In complex financial litigation, it is plainly foreseeable that such omissions may deprive a party of a real chance of achieving a more favourable outcome.

Consistency with established principles

The approach aligns with established common law authority. In Perry v Raleys Solicitors [2019] UKSC 5, the UK Supreme Court confirmed that the loss of a litigation opportunity is, in principle, compensable, subject to the claimant establishing threshold elements before the court assesses the value of the lost chance. Similarly, in Edwards v Hugh James Ford Simey Solicitors [2018] UKSC 0132, the Court treated the lost opportunity itself as the relevant asset, emphasising disciplined counterfactual analysis. Earlier authority, including Fitzpatrick v Batger & Co Ltd [1967] EWCA Civ J0317-2, reflects the same principle, observing - in an instructive tone - that a litigant whose claim failed as a result of solicitor neglect possessed an “unanswerable claim” against his solicitors 

Comparable reasoning exists in civil law systems. French jurisprudence recognises that the loss of a chance (perte de chance) gives rise to a right to reparation where the lost opportunity was real and measurable. The compensable loss is not the certainty of success, but the lost probability of achieving a better outcome, assessed at the time of the missed opportunity rather than with hindsight provided the chance lost was certain, direct and foreseeable. The Jurisprudence of the French Cassation Court further refined that lost chance is measured according to the probability of success at the time, not by looking at what happened in later proceedings.  In some cases it held that the loss is measured by the probability of success of the unexercised remedy, requiring reconstruction of the debate that should have occurred.

The QFC Court’s formulation is consistent with these principles. The certainty lies in the loss of the opportunity itself, not the outcome of the underlying claim. The Court held that the Applicants failed because no admissible evidence was adduced to rebut the  defence and linked that failure directly to professional omissions. These were not mere defects in presentation, but the reason the necessary evidence was not before the Court. The causal chain was clear: evidence was not obtained, the record remained deficient, the claim and appeal failed, and adverse costs followed. In complex financial litigation, it is plainly foreseeable that such failures may deprive a party of a real chance of achieving a more favourable outcome.

Institutional responsibility and professional standards

The Court’s tone reflects institutional responsibility rather than sympathy. As an international commercial court, it enforces strict evidential and procedural discipline. At the same time, access to justice requires that litigants are not left without remedy where failure is attributable to professional negligence rather than lack of merit. The loss of chance doctrine reconciles these concerns.

This approach is consistent with recent QFC jurisprudence emphasising professional responsibility, including cases on defective advocacy and reliance on fictitious authorities. Taken together, these decisions show a court defining the boundaries of the profession: insisting on diligence, rejecting procedural shortcuts, and locating remedies for lawyer error where they properly belong.

Conclusion

The Court declined to rescue the Applicants from the consequences of defective representation, but recognised that those consequences may themselves be legally actionable. By identifying a potential claim for the “loss of a chance”, it confirmed that the destruction of an arguable litigation opportunity through professional default may constitute compensable harm. This preserves procedural rigour while ensuring that justice is not exhausted by the mere dismissal of the underlying claim.

The decision underscores that the courts will not infer loss in complex financial disputes without proper evidential foundation; evidential preparation and procedural compliance are integral to the merits. Where a claim fails due to litigation shortcomings, the appropriate remedy may lie against legal representatives, framed as a loss of a chance claim, often accompanied by adverse costs.

More broadly, the judgment situates the QFC Court within an established international framework recognising loss of a litigation opportunity as a distinct head of damage in professional negligence. It also carries an institutional message: in a transnational commercial court operating under evidential complexity and procedural pressure, the judicial function extends beyond resolving disputes to safeguarding the integrity of the litigation process and defining the professional standards expected of advocates.