Can I sue my divorce solicitor?

Our professional negligence team are often asked, ‘can I sue my divorce solicitor?’ The simple answer is that a claim can be brought against your divorce solicitor if they have made a fundamental error in the way they have handled your case, resulting in you suffering direct financial loss. In this article we look at some of the specific issues that arise when a negligence claim is made against a divorce solicitor.

For a free assessment of your case call our legal helpline on 0808 139 1595 or send brief details of your divorce solicitors negligence claim to us at [email protected]

making a claim against a divorce solicitor

Divorce is unpleasant.  Even in amicable divorces there are bound to be arguments as the parties try to reach agreement on dividing the assets, whilst in the most bitter of divorces, each party is strongly motivated to ‘beat’ their partner, thereby fueling the hostility.  Invariably, the parties don’t get everything they want simply because a compromise has to be reached. But sometimes, just sometimes, it is the divorce solicitor who gets it wrong. 

It needs to be made clear at the outset that simply because someone does not get all that they wanted, it does not mean that the solicitor has been negligent.  For you to sue a divorce solicitor they must have acted in a way that falls below the expected professional standards. Furthermore, their error must have caused you a financial loss.

Divorce negligence case study

Let us give an example.  In a case we recently dealt with, the divorce solicitor failed to get a profesional valuation of the husband’s pension.  He worked out what he thought the value of the pension pot was and calculated what the wife would receive.  A settlement was reached based on his assumptions.  However his figures were wrong. His client received less than half of what the solicitor believed she would get. The solicitor’s mistake resulted in his client suffering serious financial loss and accordingly a negligence claim was made for compensation.

Mistakes can happen 

Against the background of parties fighting over the same assets with escalating legal costs eating in to those assets, pressure is placed on divorce solicitors to keep the costs down. Shortcuts are often taken but this can result in things going terribly wrong once the dust settles.

A divorce solicitor also needs to keep a level head amid all the emotion of a relationship breakdown. It is imperitive that they retain sight of the bigger picture. Failure to do so can lead to errors being made.

Even if a fair settlement has been reached, there is still room for mistakes to arise. For example a negligently drafted settlement agreement can lead to financial loss at a much later stage.

So, can I sue my divorce solicitor?

Having started a new life following a divorce, it will take a brave soul to want to get embroiled in a fresh legal dispute. However, if your finances have suffered as a result of a solicitor’s mistake then you may have no option.

We deal with cases on a no win, no fee basis where the value of the claim exceeds £10,000 and are always happy to provide a free preliminary case assessment. If you tell us what your divorce solicitor has done wrong and how much financial loss has been suffered as a result of their mistake then we will review whether it is a case we can help you with.

We specialise in claims against solicitors. Call us on 0808 139 1595 or email us at [email protected] for a free initial assessment of your case.

 

Claiming compensation for stress and inconvenience

Is it worth all the stress? Claiming compensation for stress and inconvenience in a professional negligence case

Ask any professional negligence lawyer what their FAQs are and undoubtedly queries about stress and inconvenience will be high on that list. But under English law, can someone actually recover compensation for stress caused by the conduct of a negligent professional?

Victims of professional negligence are frequently surprised to learn that legal claims for compensation for stress and inconvenience stemming from negligence are uncommon. The reason for this is that the courts have been reluctant to allow such claims for public policy reasons.

In one famous ruling a judge stated:

“A contract-breaker is not in general liable for any distress, frustration, anxiety, displeasure, vexation, tension or aggravation which his breach of contract may cause to the innocent party. This rule is not, I think, founded on the assumption that such reactions are not foreseeable, which they surely are or may be, but on considerations of policy.”

However, the bar to claims for stress and inconvenience is not absolute. If the main reason to use the services of the professional was to obtain ‘pleasure, relaxation, peace of mind or freedom from molestation’ then compensation can be awarded.

This concept of ‘pleasure, relaxation, peace of mind or freedom from molestation’ was reinforced in the case of Farley v Skinner. In this case the claimant had instructed a surveyor to complete a report on the property he was looking to purchase. The claimant put in an extra request for the surveyor to report on the effect of aircraft noise from the nearby airport (London Heathrow). The surveyor reported that while he could not guarantee zero effect, the property was not subject to aircraft disturbance frequently and was not on any flight path. However, he did not identify that the property was only a few kilometres from a stacking beacon and that at busy times planes waiting to land circled almost directly above the claimant’s home. The Judge ruled that in that case the claim was exceptional and that compensation for stress and inconvenience could be awarded..

In a recent case Shaw v Leigh Day, the question of stress and inconvenience was considered in relation to a solicitor’s negligence case. In this matter the solicitor had been instructed to represent the clients at an inquest into a relative’s death. The Court ruled that the level of emotion involved was high and unique making this different from other legal processes. If a solicitor is retained to put evidence before the coroner and jury but fails to carry out their job with sufficient diligence, the client would never receive the comfort they required. So again this case was deemed as falling within the exceptional circumstances range, where compensation could be awarded.

In general therefore while claims for stress and inconvenience are not common, they can can be pursued in limited circumstances. In most cases such claims are made in conjunction with claims for more conventional financial loss arising from the negligence, so they form one element of a larger claim.

If you are interested in claiming compensation for stress and inconvenience in a professional negligence case and believe that it falls within the exceptional circumstances highlighted then give us a call on 0808 139 1595 or email us at [email protected]

Can I sue my injury solicitor?

Our professional negligence team are regularly asked, ‘Can I sue my injury solicitor?’ In this article Emma Slade looks at one particularly common cause for complaint; the injury settlement that is far too low.

For a free case assessment call our legal helpline on 0808 139 1595 or send brief details of your injury solicitor negligence claim to us at [email protected]

A personal injury solicitor has a duty to correctly quantify the value of your claim. If they make a mistake and advise you to accept a figure that amounts to insufficient compensation then you may wish to consider a negligence claim against them. There are a number of reasons why an injury solicitor might make a mistake. It is unusual (though not unheard of) for an injury solicitor to simply get the wrong figure for a particular injury; telling you that a broken arm is ‘worth’ a few hundred rather than a few thousand pounds for instance. Mistakes resulting in the under settlement of an injury claim tend to arise from a misunderstanding of more complex legal principles that dictate what you are entitled to claim for and how much can be claimed.

By way of illustration, take the legal principle known as the ‘egg shell skull rule’.

So there you are, in the supermarket, minding your own business, trying to decide between free range eggs and organic ones, when a shopping trolley crashes into the back of you.  Now while I could start making puns about being trolleyed (you may groan if you wish), something like that can hurt.  You may even suffer a bruise or perhaps a laceration or two, but the reality is that serious injury is unlikely. But what if the resulting injuries do develop into something far worse?  Osteoarthritis or scoliosis of the spine?  Spinal stenosis leading to cervical radiculopathy (“pinched nerve”) or some other unpronounceable medical condition?  It seems a bit extreme. These are injuries that are far more likely to result from a high-impact car accident, as opposed to being “trolleyed” (sorry!).  But if before your egg-buying foray you were hale and hearty and you are now crippled you will inevitably feel aggrieved. So, what are you entitled to claim for when a relatively ‘minor’ accident results is serious injury?  Can you really claim for the full extent of your injuries?

The simple answer is, yes, you can. It is the eggshell skull rule that allows the claim to be made.  In criminal law, it is usually known by the adage, “you take your victim as you find them”. It means that if you give your victim a mild blow to the head but he has an unusually brittle skull, then even if the blow would not have harmed any other individual, you would still be responsible for any damage resulting to your victim, including brain injury or even death.  So long as some harm is foreseeable as a result of your action, then you will be liable for all harm.

However, one exception to this in a personal injury claim is where the claimant had a pre-existing condition.

We get a lot of calls from people asking, ‘can I sue my injury lawyer?’ when they feel their claim has been undersettled. They are often left in considerable pain following an accident and cannot understand why they have received so little compensation. The legal explanation for the low award could be the presence of a pre-existing medical condition. This is a condition that would have eventually shown itself in the future (regardless of the accident) and has simply been brought forward in time because of the accident.  In these circumstances you can only claim compensation for the period the condition has been exacerbated by.

Let me give an example:

Mr Roberts had been an enthusiastic football player in his youth, but in his exuberance had broken an ankle.  It had healed very well without causing him any problems.  Thirty years later though, whilst crossing a road, a car collided with him causing a number of (minor) injuries to the same ankle he had injured as a youth.  Unfortunately, although to all intents and purposes the old injury had healed, x-rays showed that there were already the first symptoms of osteoarthritis having developed in the ankle and the experts concluded that, if the accident hadn’t occurred, Mr Roberts would have been limping in three years time anyway.  So Mr Roberts was only awarded compensation for the three years by which the osteoarthritis had been exacerbated. 

It can be a bitter pill to swallow, particularly when there are no obvious symptoms prior to the accident, but there is no reason to say the solicitor has been negligent or that the claim has been under settled in these circumstances. 

However, where such cases can be undersettled is in the opposite situation: where the injury seems out of all proportion to the accident itself and does not stem from a pre-existing condition.  Chronic Regional Pain Syndrome is one such example where something that is relatively minor can trigger excruciating pain.

I will give you another example here on a case I had the pleasure in assisting the then Coroner of my home county when I was a mere trainee solicitor many years ago.  In that instance, our client was involved in a rear-end shunt.  It should have resulted in minor whiplash but instead, his consequential injuries were phenomenal and quite rare.  It started in his lower legs where his nerves and skin became hyper-sensitive and it gradually extended up his body.  It was quite extreme: even a whisper of a breeze across his skin had him in agony.  It resulted in him being largely wheelchair-bound and subsequently bedbound, needing 24/7 care and adapted accommodation for him and his carers.  A minor shunt had therefore devastated his life.

He made a compensation claim and the other side fought tooth and nail to establish a connection between his symptoms and a pre-existing medical condition.They were unsuccessful and eventually settled his claim for a seven figure sum.

These are extreme examples, but they illustrate that injuries aren’t always what they seem at first glance. Valuing an injury claim calls for specialist expertise and a good grasp of all the relevant legal principles. If an injury solicitor doesn’t investigate a case properly, perhaps by failing to obtain medical evidence linking a claimant’s medical condition to the accident, then the risk of under settlement arises.

If you feel that your personal injury claim has been significantly under settled, we are always happy to consider whether you can sue your injury solicitor.  If there is no evidence they have got anything wrong we may not be able to help, but if they have, well then, “the yolk’s on them”: we will be more than happy to assist.

Emma Slade is a solicitor in our professional negligence department specialising in negligence claims against solicitors on a no win, no fee basis. We offer a free case assessment service. Submit brief details by email to [email protected] or call us on 0808 139 1595.

Can I sue a solicitor for negligence?

When we are asked, ‘Can I sue a solicitor for negligence?’ there are 5 important questions that need to be considered:

1. Has the solicitor been negligent?

2. Have you suffered financial loss?

3. Have you mitigated your loss?

4. Is the claim within the time limits?

5. Is it worth pursuing?

We will look at all these points below.

Has the solicitor been negligent?

This is the first and most obvious question. To sue a solicitor, you have to show that they owed you a duty of care and then acted in breach of that duty.

It will be evident in most instances whether or not a solicitor owes you a duty of care, but it isn’t always straightforward. For instance, if the solicitor was acting for someone else or the work was done free of charge no then legal duty of care to you may arise.

A solicitor’s breach of their duty of care is what most people mean when they talk about ‘negligence’. The test to determine whether there has been a breach of the duty of care is simple: has the conduct of the solicitor fallen below the standard to be expected from a reasonably competent solicitor?  This question needs to be carefully considered. Just because you lost your case doesn’t mean your solicitor was wrong in his advice.  Or if you didn’t get the outcome you had hoped for or the amount you were seeking, then it doesn’t necessarily follow that your solicitor was negligent.  There is a long running joke: put four lawyers in a room and you’ll get five different opinions! 

Have you suffered financial loss?

This is the part that most people forget. The solicitor may have made a mistake, but unless that error has actually caused you financial loss, you won’t have a claim.  And it must be direct financial loss.  If there has been an intervening event that has caused the loss or the loss would have been suffered even if the solicitor had not breached their duty of care, then the claim is likely to fail.

Have you mitigated your loss?

All claimants have a duty to take reasonable steps to ‘mitigate’ their loss. By this, we mean taking reasonable action to minimise the financial impact of the solicitors negligence.  But what is a reasonable course of action?  What if, to mitigate, it is going to cost a lot of money or take too much time?  And how do you know that what you have done is ‘reasonable’?

The costs of attempting to mitigate the loss are recoverable from the negligent solicitor, even if the attempt at mitigation ultimately fails.  But if your chosen course is considered to be unreasonable, you won’t be able to recover those costs. You therefore need to choose your course wisely.

As for what is considered reasonable, the Courts have said that if it would be too costly or complicated to bring mitigating action, then you do not have to take that course of action just to protect the solicitor from the consequences of his own carelessness.  But if there is a reasonable course of action, then if you don’t take it your claim will be reduced. Determining what is reasonable or unreasonable will differ from case to case.

It is a thin line you have to tread. Be careful when considering what action you think can be taken either by you (or even the negligent solicitor) to rectify the matter.  If it can be done reasonably, then you should follow that route as far as possible.

Is the claim within the time limits?

If you are going to issue court proceedings, you need to make sure you do so in time.  Failure to comply with the Limitation Act 1980 means your case will be statute barred and you will not be able to recover any compensation.

Put simply, you need to bring a solicitors negligence claim within 6 years of the negligent act.  Usually you can identify fairly easily when the negligence occurred. It might be the date of a report, a key date that has been missed, a failed completion etc.

But what if you were unaware there has been an error until after the six years?  Not all mistakes are immediately obvious. Some only come to light much later. In these situations you can rely on s14A Limitation Act. This is known colloquially as the “date of knowledge” limitation or DOK.  With DOK claims, you have three years from the date you ought reasonably have been aware of the error to bring a claim.  Whilst sometimes this may be fairly simple to identify, in others you can easily fall foul of the “reasonable” part.  Take for example the situation where cracks are observed in a concrete base: do you use the date that you noticed the cracks or the date that your expert tells you the builder negligently poured the concrete?

Is it worth pursuing?

A court judgment is only worth the piece of paper it is written on unless the debtor is good for the money.  Solicitors are obliged to have Professional Indemnity Insurance in place against the possibility of a negligence claim being brought against them, but this does not necessarily mean that the insurance company has the money (in recent years, a major PII firm was declared insolvent and unable to satisfy any claims) or that the solicitor even reports the matter to the insurers.

You also need to consider the overall value of your claim.  If your claim is worth less than £10,000, it will fall into the Small Claims Court where, regardless of whether you win or lose, you will have to bear your own legal costs.  If you choose to instruct a solicitor, the costs of doing so will invariably exceed the value of the claim itself.  It is only if the claim exceeds the Small Claims Court limit that you are entitled to recover some of your legal costs if you are successful.

This segues neatly into the next point: if your claim is not in the Small Claims Court, you have to face the possibility that if you lose your claim, you may be responsible for the other side’s legal costs.  Are you sure therefore that your claim is going to stand up to scrutiny?  Do you have insurance to protect you against such a claim?

How we can help you sue a solicitor for negligence

If having read this brief article you feel you have a case where you can sue a solicitor for negligence and you would like specialist assistance then we will be happy to help. We deal with claims against solicitors throughout England and Wales and are experienced in handing a broad range of cases, from rights of way errors to claims being struck out, from conveyancing mistakes to cyber fraud.

We will assess your claim free of charge.  All we will need from you is some basic information  about your case, particularly in relation to the 5 questions above. Provided there are sufficient merits in the case and the value of the claim exceeds the Small Claims Court limit, we would be happy to consider assisting on a no-win no-fee basis. We may also be able to offer you insurance against the risk of a costs order being made against you.

If this is of interest, then please contact us on 0808 139 1595 or email us at [email protected]

Can I claim compensation if my solicitor missed a limitation date?

Compensation Claims for Limitation Date Negligence

The limitation period is the length of time you have to issue a legal claim in court before the case becomes statute barred. For professional negligence claims for example, the basic period is six years from the date of the error. For most personal injury claims it is three years.

That might sound straightforward enough, but as with many legal principles, it isn’t quite that simple. In the case of the professional negligence claim, not all mistakes are immediately apparent. Some don’t come to light until much later. In these situations the limitation period is three years from the ‘date of knowledge’. This then raises a new question as to when the date of knowledge was.

Identifying the correct limitation date can therefore require considerable legal knowledge and insight, particularly as different areas of law have different limitation dates. 

Limitation periods are vitally important. If a limitation date is missed it can have fatal consequences for the legal case. More often that not there is no way back for the claimant after missing a limitation date and their chance of pursuing justice evaporates.

It is therefore not surprising that solicitors have sleepless nights worrying about limitation dates. Regrettably mistakes are made, leaving the solicitor’s client asking, ‘Can I claim compensation if my solicitor made a time limit error?’

To answer that question we will usually need to look at the specific facts of the case. However, in general if a solicitor fails to advise you on the need to issue court proceedings to avoid missing a limitation date it is likely that you will be able to claim compensation from them.

Below are some examples of recent cases involving solicitors who have missed a limitation date, leading to compensation claims being made against them.

Personal injury claim limitation date missed

A woman was travelling by plane and suffered injury when an air hostess ran over her foot with a trolley. The woman went along to a solicitor to bring a claim for her injuries. The solicitor got the airline’s insurance company to admit liability at a very early stage. It was then just the amount of compensation to be paid that was the subject of debate. As the claim got closer to the standard three year limitation period for an injury claim, the solicitor protected his client’s case by issuing court proceedings. This stops time from running and prevents the case from becoming statute barred.

The solicitor then received a letter from the airline’s solicitors, pointing out that the claim was out of time. The accident claim was statute barred under the Limitation Act.  The claimant’s solicitor had not realised that claims for an injury that occur either on a plane or on a ship have a two year limitation period, not three.

The solicitor was then sued for being negligent. He had to pay his client the compensation she would have been awarded for her PI case if the injury claim hadn’t gone wrong.

Solicitor’s Personal Guarantee time limit error

Mr D’s company had an overdraft with the bank. As it was a small company, the bank insisted that Mr D sign a personal guarantee. This was about seven or eight years ago. The company subsequently folded and the bank called in the guarantee.

Mr D went to see his solicitor who scoffed at the claim saying that the guarantee was over six years old and so the bank was out of time.

At the solicitor’s insistence, Mr D defended the bank’s court proceedings. Unfortunately he lost and had to meet the guarantee and pay all the banks legal costs as well. Why? A guarantee has a twelve year time limit which commences on default of the contract – not from the date the guarantee was entered into. Again the solicitor faced a compensation claim from his client.

Standstill Agreement error results in solicitor missing limitation date

A gentleman had problems with a negligent conveyancing solicitor, so instructed another firm to bring a claim against them. The first thing the new solicitors noticed was that, at the time they were instructed the limitation period on the claim was about to expire. The new solicitors contacted the original firm and invited them to enter into a Limitation Standstill Agreement, which they agreed to do. 

A standstill agreement, for all intents and purposes, extends the limitation period by agreement between the parties. The agreement was drawn up and was said to last for three months.  At the end of the three months, the limitation period would expire unless another agreement was entered into, which is exactly what the parties did.  They used the same agreement as before, just updating it.  In fact, they did it a total of four times, extending the limitation period each time.

For various reasons, the client had to instruct a new firm of solicitors and chose us. His solicitors sent the file over to us. There were four standstill agreements, all back to back, which had extended the limitation period. However, on closer inspection, we noticed that there was a mistake. The Standstill Agreements had all been carefully drafted stating that they related to a claim that our client was going to bring against his former conveyancing solicitors for purchase of “5 Mawdsley Avenue”. The problem was that he had actually purchased “75 Mawdsley Avenue”.

Such a tiny, little mistake; such huge consequences. The Standstill Agreements were invalid. The limitation period therefore expired ages ago. The second set of solicitors had been negligent and we were instructed to pursue a negligence claim against them.

How we can help you claim compensation if your solicitor has missed a limitation date

We hope these case studies have helped you understand how limitation works and the problems that can arise. If you think your solicitor has missed a limitation date, contact us now to arrange a free case assessment. Call 0808 139 1595 or email us at [email protected]

How do I sue my solicitor? The legal steps

If you are contemplating a claim because your solicitor has made a mistake, then you need to consider a number of important legal issues, and steps to take, that will have a direct impact on the process of suing a solicitor.

My solicitor has been negligent, what can I do?

This is usually the starting point of any negligence claim against a solicitor. Lawyers often refer to this as the ‘breach of duty’. A solicitor will owe a duty of care to his clients. When that duty has been breached then negligence will follow. The solicitor’s duty of care will vary from case to case according to the type of work being undertaken, the extent of the retainer and the experience of the client.When assessing whether a solicitor has been negligent it is common to compare the solicitor’s conduct with the standard to be expected from a reasonably competent solicitor. 

Has my solicitor messing up resulted in me suffering financial loss?

To sue your solicitor it is important to consider what financial loss has been suffered as a direct result of the solicitor’s bad advice. In particular it is vital to determine whether or not the case falls within the ambit of the Small Claims Court. The small claims court limit is currently £10,000 (November 2018). If you go to a small claims court then only limited legal costs are likely to be recoverable. This means that it is generally uneconomic for the claimant to appoint a solicitor to handle the case. Where the value of the claim exceeds the small claims court limit the economics change due to the fact that legal costs are recoverable from the other side. This makes it more viable for solicitors to deal with the claim. And the greater the value of the claim, the more viable it is for solicitors to be retained.

It is also important to bear in mind that direct financial loss must be suffered. If there has been an intervening event that has caused the loss, or the loss would have been suffered even if the solicitor had not breached their duty of care, then the claim is likely to be prejudiced.

How to make a claim against a solicitor on a no win no fee basis

If your solicitor has let you down and you would like to pursue a claim on a no win no fee basis then we will be happy to assess your case, free of charge. In order for us to be able to take your case on under a no win no fee agreement we will need to establish that:

  1. your solicitor has acted in beach of their duty of care
  2. you have suffered financial loss as a direct result of that negligence
  3. the claim has a value that is above the small claims court threshold

If you feel that your case would be eligible for no win no fee funding then you are welcome to contact us for a free case assessment.

Call 0808 139 1595. Or send brief details of your case to us at [email protected]

Use this handy ‘Claim Sheet’ for making a claim against a surveyor

If you are making a claim against a surveyor it is important to identify the key facts of the case at the outset. This will help you to establish liability against the surveyor and identify the losses you wish to include in the compensation claim.

To assist you with this we have prepared a short ‘Surveyors Negligence Claim Sheet‘.

You can use the Surveyors Negligence Claim Sheet as an aide memoir and it will help you to gather together key facts of the case.

If you are thinking about making a claim against a surveyor and would like us to give you a free initial assessment of the legal merits of the case and its suitability for no win, no fee funding, then simply complete the claim sheet and return it to us by post or email.

Each surveyors negligence case is different, so it’s important to bear in mind that a ‘one size fits all’ claim sheet like this can never be more than a general guide. You should therefore add any additional information you think might be relevant to your case. If you are not sure what to put in one of the boxes then simply leave it blank and move on to the next one.

We are able to assist with making a claim against a surveyor on a No Win, No Fee basis, where the financial loss suffered by you is more than the County Court ‘small claims’ limit which is currently £10,000. We can deal with claims that have a value of less than £10,000, but only on a privately funded basis.

If you encounter any problems when filling in the claim sheet then just give our free legal helpline a call on 0808 139 1595.

Click here to download the Surveyors Negligence claim sheet. This is an interactive PDF so you can so you can fill it in, save it, and simply email to [email protected], no need to print or scan.

Use these handy ‘Claim Sheets’ for making a negligence claim against a solicitor

When making a negligence claim against a solicitor it is important to identify as early as possible the key facts of the case. This will help you and your legal team to establish liability against the solicitor and identify the losses you wish to recover.

To assist you with this we have prepared a few short ‘Solicitors Negligence Claim Sheets’.

The claim sheets are a handy aide memoir and will help you to marshal the key facts of the case so they can be presented in a way that will best support your solicitors negligence claim.

If you are thinking about making a negligence claim against a solicitor and would like us to provide an initial assessment of the legal merits of your case or its suitability for no win, no fee funding then please complete the claim sheet below and send it to us by post or email for review.

Every case is different, so please bear in mind that a ‘one size fits all’ claim sheet like this is merely a guide. Please feel free to add any additional information you think is relevant  to your case. And if you are not sure about what to put in a particular box then you can leave it blank and go on to the next section.

We are able to assist with making a claim against a solicitor on a No Win, No Fee basis, where the financial loss suffered as a direct result of the negligence exceeds £10,000, which is the current small claims court financial limit.

If you run into any difficulties when completing the form, please call our free legal helpline on 0808 139 1595.

The handy claim sheet PDFs below are interactive, so you can fill it in, save to your computer, or device, and email to [email protected], no need to print or scan.

Making a professional negligence claim against a solicitor: Truth and “alternative facts”

WALKING THE LINE: balancing the duty to the client and the court.

In another instalment of Emma Slade’s blog, she discusses the probity of the legal profession in the context of a making a professional negligence claim against a solicitor where there are “alternative facts”.

Do you remember the mocking and drubbing that Kellyanne Conway, Counsellor to President Trump, received in the press and on social media at the beginning of 2017 when she described what was an obvious falsehood as “alternative facts”?  If it wasn’t so painful, it would be quite amusing really.  Generally though, lawyers get a bad press in these situations. There is an almost automatic assumption that we are strangers to the truth, always ready to give a false colouring to the facts and generally dissemble and equivocate.  It might be a popular picture of lawyers, but it doesn’t reflect the reality in my experience.

I am not going to say that all solicitors are whiter than white.  I once knew a solicitor who, because he couldn’t get his client to sign a witness statement by the deadline, photocopied the client’s signature from a letter and pasted it on the signature line.  He was inevitably caught out though when the client went in the witness box.  The barrister asked the client whether that was his signature (“yes”) and could he confirm the contents of the statement?  I am sure the solicitor in question must have invented facepalming at the instant his client said, “never seen it before in my life”.  True story.

But outright lying?  No.  Even setting aside the moral arguments, a solicitor is an officer of the Senior Court of England & Wales and our primary duty is to the Court.  As much as a client may think a solicitor is a “hired gun”, ruthlessly advancing their case at the expense of others, that is not the true position.  If a client tells his “brief” that he is guilty but then provides a ‘not guilty’ plea in court, the lawyer can no longer represent the client.  He cannot even dissemble or equivocate over it.

The reason this blog entry has come about is because of an enquiry I received this morning about making a professional negligence claim against a solicitor; and it was a tricky one.  I can see why the caller was cross, but ultimately he was expecting the solicitor to – how shall I say it? – ‘embrace the truth with frivolity’. He didn’t dress it up, the caller wanted to sue the solicitor.

We all know about care home fees – if you own a property but need to go into a care home, the local authority can sell your home and take the funds to assist with the cost of that care.  The property must belong to the patient for the local authority to lay claim to its value, so some people enter into a Trust Deed, giving their property to their nearest and dearest, usually the children.  If the purpose of that transfer though is purely to put the property beyond the reach of the local authority and to avoid those fees, then the transaction can be reversed; if there is a genuine reason for the trust being set up, then the trust cannot be undone and the value of the property cannot be touched.

The caller this morning was saying that his trust had indeed been reversed because when the Local Authority called for his solicitor’s file, an attendance note said that the purpose of the trust was to avoid care home fees. 

Now obviously, I have not seen that note and I would be surprised if it was as unequivocal as that.  I would expect the note to contain, amongst other things, considerable advice from the solicitor about anti-avoidance remedies that a Local Authority has and to have advised his client accordingly.  But the caller was somewhat agitated that the solicitor had failed to cover up the real reason for the trust.

I can understand his frustration – he had clearly hoped to protect his monies to be able to leave them to his loved ones – but it surprised me that he genuinely believed that his solicitor should have been economical with the truth, possibly even going so far as to put “alternative facts” in his attendance note.

It is disappointing that lawyers have got such a bad rap for alleged dishonesty – I don’t know whether that it is a case of one bad apple spoiling the barrel or something we have inherited from our American cousins – but I am not sure who was more surprised about my conversation: me, because the caller thought a solicitor should lie to protect his client; or the caller when I told him “absolutely no way”.

If you require help with making a professional negligence claim against a solicitor, then call our free helpline on 0808 139 1595 or email us direct at [email protected]

 

Can I sue my solicitor for breach of the Solicitor’s Code of Conduct?

In the context of solicitors negligence claims, how important is a breach of the Solicitor’s Code of Conduct and will a solicitor be negligent if they fail to comply?

Solicitors negligence claims specialist, Emma Slade, is frequently asked, ‘can i sue my solicitor for breach of the Solicitor’s Code of Conduct?’. In this short article she considers whether failure to comply with the Solicitors Code of Conduct is tantamount to a negligent act.

The historic position – breach of the Code was not sufficient in itself

It has long been established that to bring a negligence claim against a solicitor, you have to show that the solicitor acted in a way that no reasonably competent solicitor with similar qualifications and experience would have done.  It’s known as the Bolam test.  But how do you establish how a reasonably competent solicitor would have acted?

As readers will probably be aware, solicitors are governed by the Solicitors Regulation Authority who regularly update the “Solicitor’s Code of Conduct” – a guide to professional conduct within the profession.  The current edition is 2011 although there have been earlier ones, its predecessor being in 2007.  A leading judge has stated that the guide, “embraces the conduct expected of a normally careful and skilful solicitor by his or her own governing body.”

It is probably a surprise therefore to read that the judge went on to say, “I have, however, come to the conclusion that a breach of the Guide cannot ipso facto and of necessity be negligent.”

The facts in that case were rather distressing.  The Claimant brought proceedings via her daughter [G], against her former solicitors.  Mrs Johnson had been a longstanding client of the firm and so they knew her and her family very well.  Unfortunately, Mrs Johnson’s mental capacities deteriorated quite rapidly, unbeknownst to G.  When G did find out, she also found out that all her mother’s savings and capital had been dissipated by her younger brother [A] in pursuit of “a secret and expensive indulgence, which, by its very nature… was too embarrassing for [G] to discuss.”  The solicitors were immediately contacted by G and A to obtain an Enduring Power of Attorney for their mother where Mrs Johnson’s mental capacity was discussed.

The first act complained of by the Claimant was that the solicitors – in breach of one of the fundamental principles of the Guide to Professional Conduct for Solicitors (as it then was) – did not check for themselves that Mrs Johnson had capacity to either instruct that such a document be prepared, that she had capacity to understand and sign such a document or check that it was validly executed.

The second act complained of was that subsequently, the solicitors accepted the brother’s instructions to sell some valuable land that belonged to Mrs Johnson.  Although the brother produced the signed Attorney, the solicitors failed to notice that the document made it clear that any decision had to be made jointly with his sister and happily accepted instructions from A only.  What they did notice though was that the document was undated and in a moment of misguided altruism, inserted the date themselves.

The inevitable happened. The land was sold (at an undervalue) and the money transferred to Mrs Johnson who gave three-quarters of it to her son. 

Court proceedings were therefore brought against the solicitors for, amongst other things, failing to satisfy themselves that the instructions for the sale of the land were the wishes of Mrs Johnson and failing to satisfy themselves that she had capacity to give such instructions.  In both instances, the Claimant relied upon breaches of the Code which resulted in the Court concluding that, breach on its own could not be conclusive of liability for negligence.  There has to be something else.

The Legal Services Act

This case was decided in 1995.  Since then we have had the Legal Services Act and specifically s176 which says that:

“A person who is a regulated person in relation to an approved regulator has a duty to comply with the regulatory arrangements of the approved regulator as they apply to that person.”

In short, a solicitor is now under a statutory duty to comply with the Code of Conduct.

Once again though, this can cause uncertainty because there is still a range of acceptable conduct within the guide itself.  You only have to read the Code to see that there are now “objectives” to be reached based upon guiding “principles”.  So what happens in those instances?

The latest decision on negligence and breach of the Solicitor’s Code of Conduct

This was considered briefly in the Court of Appeal decision of Hollins v Russell & Others.  That case was actually dealing with the enforceability of conditional fee agreements (CFA) but the Court also gave guidance to costs judges where there were allegations that the CFA was unenforceable because of breaches of statutory provisions.  The details do not need to be set out here but the Court identified the problem above: the question of whether something satisfies a statutory regulation is one of degree.  Obviously, sufficiency will depend on the circumstances of each individual case but ultimately, it was concluded that conditions are met when there has been substantial compliance with what is required or at least, no material departure from it.

Again, that probably isn’t overly helpful from a solicitors negligence claims perspective, but fortunately, paragraph 107 of the judgment is.  The Court suggested that the following was the key question:

Has the particular departure from a regulation … either on its own or in conjunction with any such other departure… had a material adverse effect either upon the protection afforded to the client or upon the proper administration of justice?  If the answer is ‘yes’ the conditions have not been satisfied.  If the answer is ‘no’ then the departure is immaterial and (assuming that there is no other reason to conclude otherwise) the conditions have been satisfied.”

The conclusion therefore is that if a solicitor has materially failed to comply with the SRA Code of Conduct since implementation of the Legal Services Act 2008, then it will be considered a breach of statutory duty.  Prior to then, failure to comply was not per se a breach of duty of care but if it was reasonably foreseeable that failure to comply would lead to a loss, then breach would still be found.

As for the Johnson case, the Court did ultimately find that the solicitors had been negligent.  There were too many markers that should have alerted the solicitors to the fact that all was not well – for example, the fact that the witness to Mrs Johnson’s signature was a registered mental nurse – and that whilst failure to check their instructions with Mrs Johnson herself was not, of itself, negligent, given the circumstances of the case, they had failed in their duty to protect her.

Can I sue my solicitor for breach of the Solicitor’s Code of Conduct on a no win, no fee basis?

If you have suffered direct financial loss exceeding £10,000 as a result of a solicitor failing to comply with the SRA’s Code of Conduct we will be happy to provide you with a free case assessment.

If the case has good prospects of success we will consider whether it is suitable for funding on a no win, no fee basis.

Emma Slade is a solicitor and partner in our professional negligence department. She specialises in solicitors negligence claims. Submit brief details by email to [email protected] or call us on 0808 139 1595.

An important update from proneg.co.uk

We wish to reassure everyone that we are maintaining a full service during the coronavirus crisis.

All our lawyers are working hard for our clients and can be contacted by telephone, email and video.

We are continuing to operate our popular free legal helpline service on 0808 139 1595.

Enquires can also be sent to us at [email protected]