Solicitor negligence claims
The quality of legal services and advice can vary tremendously. Whilst most minor errors or omissions are unlikely to have major consequences, on occasion a solicitor’s negligence can cause a client serious financial loss.
Solicitor negligence can manifest in procedural oversights, such as missing dates or failing to file documents. It can also be more substantive, such as giving the wrong advice or the pursuit of a misconceived argument. Either can result in a client suffering financial loss.
Solicitor negligence can occur both in the context of contentious instructions (e.g. litigation) and non-contentious instructions (e.g. a conveyance). Our civil and commercial litigation solicitors have extensive experience of pursuing solicitor negligence claims. Below we answer some of the most frequently asked questions.
What is a solicitor negligence claim?
It is a civil claim for compensation arising from a negligent act or omission by solicitors that has caused a client to suffer loss. It is a type of ‘professional negligence’, which in turn is a sub-species of ‘negligence’. Negligence is a ‘tort’: a civil wrong.
When is a solicitor liable for negligence?
Your solicitors owe you a duty of care to provide legal services to the standards of a reasonably competent solicitor. If these standards are not met, they are said to have breached that duty. A claim for negligence may be established if you can prove that you suffered loss as a consequence, and that it was a ‘reasonably foreseeable’ result of the negligence.
What losses can be recovered?
Losses must be a direct result of the negligence (i.e. they would not otherwise have occurred) and reasonably foreseeable. It is for a claimant to prove, on evidence, that the negligence has caused them actual loss; the court will not entertain speculative assertions of loss that may have occurred anyway.
Damages in a solicitor negligence claim involving a litigation matter might include money wasted on legal fees, money paid to the opponent as a result of an adverse costs order, and/or compensation which was not recovered from an opponent.
Damages in a non-contentious matter will depend on the nature of the instruction. For example, negligent advice on a property’s title might attract an award of damages which reflects the difference in the value between what the client thought they were purchasing and what they have actually purchased. A failure to include appropriate clauses in a contract may attract a claim for financial loss arising as a result of the exposure.
Can I recover damages for distress, inconvenience and upset arising from negligence?
Not normally. Loss should normally be financial (or quantifiable in such a way).
How do solicitor negligence claims arise in contentious matters?
Any number of reasons, including missing key dates (including limitation dates), failing to file documents on time or at all, poor quality submissions, inaccurate advice or omitting to provide a client with important information/advice that would have materially affected their decision-making. In litigation, a solicitor’s failings might cause a client to lose a claim that should have succeeded. Alternatively, bad advice may cause a client to pursue a weak case they would never have brought had they been properly advised.
The cost of losing or abandoning a claim is normally significant, with the unsuccessful party being ordered to pay the successful party’s legal costs. This is in addition to missing out on compensation they may have been entitled to, had the claim succeeded.
Finally, a solicitor may wrongly advise a claimant to under-settle a claim (accept too little) or a defendant to over-settle a claim (offer too much).
I lost my case, can I sue my solicitors for negligence?
You cannot sue your solicitors simply because your claim failed. Litigation is inherently risky, and a claim can fail for any number of reasons (a claim that goes to trial normally fails because a judge prefers the other party’s evidence or legal argument, not because of a lawyer’s negligence). A negligence claim may arise where a solicitor has made a mistake which is fatal to a claim and means it fails or it has to be abandoned/settled unfavourably. A negligence claimant must establish the causal link.
What is a duty to mitigate loss?
A claimant in a negligence claim has a duty to mitigate loss. This means that they must try and take steps to limit their loss after a negligent act/omission. If they fail to do this, they may be unable to recover damages for losses which could have been avoided had reasonable steps been taken to limit the same.
In litigation, this can pose difficulties. If a solicitor’s negligence injures a claimant’s prospects of success it may or may not be appropriate to seek to compromise the claim. If they do so too readily, a solicitor (or insurers) defending a negligence claim may argue that they should have continued with the claim or sought a more favourable settlement. Equally, continuing with a weakened claim may mean the overall liability is much greater if it is ultimately dismissed (because of the additional legal costs on either side). Again, a defendant in a negligence claim may criticise such a course of action.
Given this often invidious choice, if your solicitors have been negligent it is normally advisable to seek an urgent second opinion from independent solicitors before compromising a claim.
Can I sue my opponent’s solicitors for negligence?
No, there is no ‘duty of care’ between you and your opponent’s solicitors.
How do negligence claims arise in non-contentious matters?
In a non-contentious matter, a client will typically go to a solicitor for advice or help with a particular situation, such as buying a property. If a solicitor fails to properly execute a client’s instructions with skill and care and causes the client loss as a result, then a negligence claim may arise. In conveyancing, this might occur because the client has been misadvised as to precisely what they are buying (for example, there might be restrictions or conditions on a property’s title that reduce its value and/or means that it cannot be used as desired).
Other examples of where negligence may occur is where solicitors are instructed to advise a client on a transaction, contract, or business or employment relationship. If the advice is inaccurate or inappropriate to the circumstances, this may expose the business to loss.
Are solicitor negligence claims worth pursuing?
Generally speaking, a good claim is often worth pursuing as solicitors are normally obliged to have insurance to cover such claims. Thus, if a claim is meritorious, there is a good prospect that the solicitor will seek to settle it at an early stage. Equally, if the claim is successful, there is likely to be a good prospect of claimants recovering their losses and the majority of their legal costs. That is not to say that such claims are not defended, at least initially, and weak claims are likely to be robustly defended. Solicitors – particularly litigators – are generally well accustomed to criticism, including unjust criticism (they are often the easiest person to blame when things go wrong).
How long do I have to bring a negligence claim?
After a certain period of time, a claim for negligence will become ‘time-barred’ or ‘statute-barred’. This is normally an absolute defence to a claim. This is called ‘limitation’. The primary limitation period in negligence claims is six years from the date of the negligence. A potentially longer secondary limitation period may apply: three years from the date of discovery of the negligence - or the date it ought to have been discovered. In practice it can often be difficult relying on the secondary period as the court may decide you ought to have discovered the negligence sooner. There is a ‘long-stop’ limitation period of 15 years.
The law of limitation is complicated and you should seek legal advice as soon as you believe you may have suffered loss as a result of negligence.
I have not suffered any loss, but am dissatisfied with my former solicitors and believe that their service was poor. Do I have any remedy?
You may be able to make a complaint to the Legal Ombudsman’s Office. The office has the power to award compensation for distress and inconvenience (as well as for rectifying errors and the cost of remedial action). If your solicitors’ charges are unreasonable you may also be able to challenge these via the Legal Ombudsman’s Office or by a process called ‘solicitor-client detailed assessment’. We will be able to advise you on these options in consultation.
Why should I instruct Brett Wilson LLP?
In short, to ensure that you have the best team fighting for you and to maximise your prospects of success. Our work and client care is of the highest standard. Every matter has partner involvement. We work with a range of top barristers, to suit most budgets.
Litigation can be stressful, time consuming and costly. Therefore at the outset of your case we will conduct a cost benefit analysis with you. We will talk you through this process. We offer honest and pragmatic advice to our clients.
How do I instruct Brett Wilson LLP?
Get in touch with one of our professional negligence solicitors by sending us an email, completing our online enquiry form or calling us on 020 7183 8950. If emailing or using the online form, please provide a short outline of your situation.
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