Professional Negligence Claims against Solicitors and Other Professionals
What is a Professional Negligence claim?
All professionals have obligations in connection with the advice or services which they provide.
Often there is a written as well as an implied contract between the parties. For example, where a Solicitor is instructed to represent a client seeking compensation following an accident or where clinical negligence may have occurred. In those circumstances, a Solicitor will have an obligation to comply with the terms of his contract. Those terms may be expressly set out in the terms of any contract or letter of engagement. There may also be additional terms which are implied. This may include where a professional has held himself out to have certain expertise, to provide a standard of service of a sufficient standard to have reasonably been expected for someone having that expertise.
Sometimes, a professional may still be liable for a claim if having acted negligently or below the standard to have been reasonably expected of someone having a particular expertise, even though there was no contract in place or the services were provided free of charge. This would include for example, treatment via the NHS or where a client, when represented by a Solicitor, had the benefit of Legal Aid or legal expense insurance.
Examples of Successful Claims against Professionals
We have a specialised team of experienced lawyers who have extensive experience of successfully recovering damages for professional negligence in varied disciplines. This includes having pursued claims against:-
- Chartered Accountants;
- Laser surgery clinics;
- Consultants, including plastic surgeons;
- Botox providers.
Although we propose to now provide more information with regard to a claim against a Solicitor, many of the comments and observations below also apply to claims against other professionals as well.
Can you sue a Solicitor for Negligence?
Our experienced team of qualified lawyers have extensive experience of successfully recovering damages in professional negligence claims against Solicitors who have acted negligently and in breach of contract when pursuing clinical negligence and accident claims on behalf of their clients. Examples of such legal action against Solicitors include:-
- Failing to properly advise with regard to limitation;
- Failing to advise on funding options including the availability of legal aid;
- Not undertaking all necessary enquiries;
- Instructing inappropriate experts;
- Failing to appreciate long term effects of injuries;
- Failing to advise as to provisional damages;
- Under settling claims;
- Failing to bring a claim against all appropriate parties
- Missing court deadlines.
When is a Solicitor Liable for Professional Negligence?
A Solicitor is required to exercise reasonable skill and care. In the event that the work undertaken falls below the standard that is reasonably expected, a claim might result if a financial loss is suffered. In order to successfully bring a claim against a negligent solicitor, it is necessary to overcome various preliminary obstacles. These include:-
- To ensure that the claim is not out of time;
- Whether the Solicitor owed a duty of care or was in breach of contract;
- There was a breach of duty or contract.
Assuming it is possible to overcome these obstacles, it is then necessary to establish that as a result of that breach, material financial loss or damage has been suffered as a consequence.
Complaints against Solicitors
Before suing a Solicitor for professional negligence, it may first be appropriate to make a formal complaint although it is important to ensure that the time limit for issuing any proceedings is not missed.
All Solicitors are required to have a procedure for handling complaints. Every Solicitor should inform their clients of their service standards, proposed charges and their complaints procedure at the outset.
If after having made a complaint you are still dissatisfied with the response, you can then take your case to the Legal Ombudsman.
The Legal Ombudsman will deal with all aspects of poor service, including:-
- Delayed or unclear communication;
- Problem with regard to fees;
- Loss of documents.
The Legal Ombudsman can:-
- Order that the Lawyer or firm provide an apology;
- Order that the Lawyer or firm refund all or part of their fees;
- Order the Lawyer or firm return documents; and
- Pay compensation the complainant has lost due to poor service.
The Legal Ombudsman’s investigators aim to resolve cases quickly and informally by helping the complainant and the Lawyer or firm to try and come to a resolution. However, if they are unable to do so, the Ombudsman can then be asked to make a decision. Those decisions are legally binding and can be enforced to the Courts, if necessary.
It is possible to contact the Legal Ombudsman by:-
- Calling them on 0300 555 0333;
- Visiting the Legal Ombudsman website; or
- Emailing them at email@example.com
When Should You Report a Solicitor to the Solicitors Regulation Authority
Sometimes, it may be necessary to report a negligent Solicitor or his or her firm to the Solicitors Regulation Authority (‘SRA’) which regulates how Solicitors should carry on in practice. The SRA do not have the power to award compensation for poor service, or to reduce or refund any legal fees. However, it is possible to report any matters to them which relate to where it is suspected that a Solicitor or firm regulated by them has breached an SRA principle. You can also report a Solicitor or firm for non payment of professional fees.
If the SRA have closed a firm of Solicitors and you believe that the firm owes you money, you may be able to make a claim from the SRA Compensation Fund.
Time Limits for Making Claims against Solicitors
Although there may be exceptions, the general rule is that it is necessary to issue court proceedings for professional negligence within 6 years after the breach of contract or negligent act takes place. It is therefore important to note that whereas in a claim for compensation for personal injury, including clinical negligence, such claims ordinarily have to be issued within 3 years of the date the injury or negligent act took place, if a Solicitor acts negligently in relation to the handling of such a claim, the limitation period is 6 years from the date the cause of action arose.
How Do You Get Compensation?
To be successful with such a claim, it would be necessary to demonstrate that the professional owed a duty of care, there was a breach of that duty and this caused a material loss. It is not sufficient to merely establish that the service which was provided was sub- standard or poor. Rather, it is necessary to establish on what is known as the balance of probability, i.e. it was more likely than not, that the service provided fell below the standards to be expected of a reasonably competent Solicitor having the expertise which was to be expected.
How Much Can You Claim?
If you believe that you have suffered loss or damage as a result of the negligence or breach of contract of a Solicitor, it is necessary to also prove again on the balance of probabilities that such loss was caused as a direct and foreseeable result of the negligent actions of the Solicitor.
Often the quantification of such damages can be very difficult and involves a “missed opportunity”. Further, a Claimant cannot recover double damages and would only be able to claim compensation for any additional loss which may have been incurred.
What happens if a Barrister is Negligent?
It is not uncommon for Solicitors to instruct Barristers to assist and provide advice as well as legal representation. Often Barristers, like Solicitors, specialise in certain areas of the law. It is common to compare the relationship between a Solicitor and a Barrister akin to that of a GP and a Consultant.
It used to be the case that Barristers could be instructed by Solicitors and although this invariably remains the practice, particularly in relation to claims seeking recovery of compensation for personal injury and clinical negligence, it is now possible for clients to instruct Barristers directly.
Although historically it was very difficult for a Claimant to successfully sue a Barrister for professional negligence, following a leading decision in a particular case, Barristers lost immunity which previously prevented them from being sued and it is now being held that a Barrister, like any other professional, is required to undertake his or her duties with proper skill and care. Clients are entitled to rely upon the advice which they receive from a Barrister and if as a result such advice was negligent and results in a material financial loss, it may be possible in certain circumstances to recover damages. Many of the same principles apply as with legal action against Solicitors and other professionals.
What about the cost of bringing such claim?
The experienced professional negligence team at Minton Morrill will be able to provide various alternative funding options to investigate and pursue claims against Solicitors and other professionals. This will include the possibility of entering into conditional fee agreements should the claim satisfy our funding criteria.