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Disclosure of documents

Disclosure of documents and ‘fishing expeditions’

A “PAD App” is an application to the court for pre-action disclosure of documents.  During court proceedings, the parties will have to disclose to each other any documents that they have pertaining to their case, whether it supports their case or the other side’s case.  The problem is though that to get to that stage, you have to issue a court claim and to avoid the claim being struck out before it gets to the disclosure stage, the claimant has to show that they have a reasonable claim.  But if they don’t have the evidence, they can’t get to that stage.  It’s a paradox.

PAD Apps were introduced to circumvent this problem and provided the applicant met the criteria as set out in CPR 31.16, you were in theory able to get the disclosure brought forward.

When PAD Applications were first introduced, they seemed to be a great step forward for litigators: here was a method by which you could seemingly force your opponent to provide documents before court proceedings began which could possibly help you establish your case and possibly foreshorten proceedings.  Yes, there were a few steps that you needed to overcome like showing that the applicant and respondent were likely to be party to subsequent proceedings, but it would overcome the difficulty that a lot of claimants seemed to face: knowing there was a case but not having the evidence to support it.  But whilst the facility is there, being successful in a PAD Application is becoming increasingly more difficult – with more costs orders being made against the losing party.

In one recent case Brown -v- JMW Solicitors LLP [2022] 2848 (SCCO) the court made it clear that they are not going to allow the system to be abused and let the claimant go on a hunt for evidence without substantiating why they felt there was a case.  Or in legal parlance, the Court was not going to let the claimant go on a “fishing expedition”.

In Brown, the Claimant had used the services of the defendant to bring a successful personal injury claim with the fees of that claim being funded under a no win, no fee agreement supported by ‘after the event’ insurance.  Once the claim was concluded, Brown instructed checkmylegalfees.com (CMLF), a costs recovery outfit which seeks to challenge legal fees in such claims, especially the £644 insurance premium Mr Brown had to pay in this instance.  CMLF claimed that the fee was “less than clear” and after the defendants refused to release a copy of the insurance policy itself, CMLF made a PAD App to get the policy released.  They seemed to be claiming that the fee was some sort of secret commission and, as there had been previous case law ordering a defendant firm to provide such information, CMLF felt justified in making the application.  Surprisingly, CMLF did not lodge any evidence of note in support of the claim including details of why they considered there had been any impropriety on the part of JMW Solicitors LLP.

Costs Judge Rowley was not impressed with the application.  Whilst he accepted that the Claimant was in a Catch-22 situation of requiring the information to substantiate their claim, he felt that their application was a “paradigm example of a fishing expedition”.  Specifically, he stated that:

“It is a basic tenet of litigation that he who asserts must prove. In the situation before me, the claimant’s position is that he does not even need to assert let alone prove commission may be in issue. He simply has to say that the premium is disputed without putting forward any grounds for doing so. Mr Dunne described the claimant as being trapped in a Catch-22 situation. He needed information from the defendant in order to be able to put forward his case: however the defendant refused to provide that information without the claimant’s case having been set out….

The PAD disclosure of documents application therefore failed.

For those who follow costs law, it will be realised that this is the second setback for CMLF in as many weeks with the recent decision of Belsner v CAM Legal Services Ltd criticising, amongst other things, the firm’s business model.

Even so, Brown is not unique in its finding with other, similar applications being unsuccessful as the courts turn down such requests in obvious fishing expeditions.  In short, if you are going to make an application for disclosure of documents, think carefully about your suspicions and whether such an order is truly necessary.  It could backfire and you could be facing a costs order.

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What is a professional?

Who is classified as a professional in the context of a professional negligence claim?

We are specialist professional negligence claim solicitors. If you need initial guidance on making a claim then contact our national helpline for a free review and details of no win, no fee funding.Call 0333 888 0403 or email us at [email protected]

The first thing to consider when you are thinking about bringing a professional negligence claim is the definition of a ‘professional’.

Although there is no definitive definition of a ‘professional’, or a fixed list of ‘professions’,  there are some important points to bear in mind when bringing a professional negligence claim. These include:

  • Whether the person was required to complete a professional qualification to do their job? A prime example here is a solicitor, who is required to go through multiple stages of learning to become a qualified, practicing solicitor.
  • Does the person have insurance? It is good practice for professionals to have indemnity insurance since their positions come with high financial risk. If a surveyor is negligent, it could cost them tens of thousands of pounds in compensation, so, not only is it common practice for them to have insurance to cover these costs, many professional bodies make it a requirement for membership that PII is maintained.
  • Are they regulated by a professional standards board? Again, using the solicitor example, all solicitors are regulated by the Solicitors Regulation Authority (SRA). These regulatory bodies will set standards for all professionals falling within their jurisdiction and non-compliance with those standards could be strong evidence of negligence.

The distinction between a professional person and someone who is not a professional is very important because professionals are held to a much higher legal standard, meaning any minor deviations from that standard could be deemed to be negligent if it can be shown that another reasonably prudent professional would not have acted in the same way. For non-professionals the bar is set much lower. The courts will not generally expect a non-professional to act the same way that a professional would in the same situation.

A list of the main types of professional negligence claim we deal with can be found here: https://www.sleeblackwell.co.uk/legal-services/professional-negligence.

Those who do not constitute professionals for our purposes are:

Doctors and other medical practitioners are considered professionals, but legal claims against them are treated separately to other professionals, falling under the term ‘medical negligence’. We have a separate specialist team dealing with medical negligence cases https://www.sleeblackwell.co.uk/legal-services/medical-negligence-claims)

If you have a claim against someone who can be regarded as a professional and your financial losses exceed £10,000 then contact us about making a professional negligence claim on a no win, no fee basis. Call 0333 888 0403 or email details to us at [email protected]

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Tax avoidance negligence

Tax avoidance negligence: Can a tax avoidance advisor be liable to a third party?

For guidance on making a tax avoidance negligence claim contact our free legal helpline by phone or email. Call 0333 888 0403 or email details to [email protected]

Andrew Thornhill QC provided advice to three limited liability film distribution partnerships regarding tax relief.  As part of the marketing strategy, this advice was provided to a number of investors who then invested money into what they believed would be a tax relief scheme.  Unfortunately, the schemes were later shut down by HMRC who refused the tax relief sought, causing the investors “dire financial consequences”.  The investors sued Andrew Thornhill QC for negligence in McLean & Others -v- Thornhill .

Not unsurprisingly, the tax avoidance negligence claim was dismissed.

The main reason for it being dismissed is that Thornhill was providing advice to the film distribution partnerships, not the investors.  As such, he did not owe the investors a duty of care.  Whilst it was accepted that, being a leading tax QC in England & Wales, Thornhill’s advice would carry great weight, it was considered not to be reasonably foreseeable that potential investors would rely solely on his opinion.  Alongside the opinion, all investors were strongly advised to consult their own tax advisers and – importantly – on subscribing to the investments, were warranting that they had relied only on the advice of their own professional advisers.

A second argument raised by the investors was that no reasonably competent tax QC would have reached the conclusion Thornhill did.  Thornhill had stated that he had “no doubt” that the investment would generate profits in the early 2000s and, given his standing, seemed to be an “unequivocal endorsement” which was said to be “as effectively as good as an advance ruling from HMRC”.  Fortunately, the court disagreed with the claimants, concluding that there was a range of opinions that at tax QC could have:

in cases concerned with tax avoidance schemes, that generally means identifying the basis of challenge made by the revenue and the arguments presented by them in support of that challenge.  That does not mean, however, that the reasonably competent tax QC is required to anticipate all possible approaches the revenue might take”.

This case is a useful reminder of the duty of care owed by one party to another and the duty that a tax advisor has to possible investors.  Having said that though, the stand out feature of the case is the advice that the investors should consult their own tax advisers, a point that the judge considered “critical”.  In addition, in this instance, all the proposed investors were seasoned investors and had some understanding of the investment scene.  Without the recommendation to seek their own advice and with less sophisticated investors, the outcome may have been different.

We specialise in tax avoidance negligence claims. Contact us for a free review of your case.

 

 

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Negligence claims for a contract error

Claiming compensation for a contract error

To find out if you can claim compensation for a contract error call our legal helpline for a free case assessment and details of no win, no fee funding. Call 0333 888 0403 or email details to [email protected]

Are you interested in claiming compensation for a contract error? Contract errors are unfortunately very common and they account for more than a quarter of claims against solicitors in company and commercial law.

Contract drafting errors frequently arise as a result of changes to instructions prior to completion, a problem that can be exacerbated by poor record-keeping by the solicitor. Busy commercial solicitors can also find that their judgment and attention to detail slips when they are overstretched, stressed or fatigued. In some cases practitioners succumb to the temptation to cut corners, especially on ‘routine’ contracts, making errors as a direct result of their complacency.

To avoid claims for a contract error, lawyers are encouraged to establish the full facts of a transaction at the outset, carefully define the scope of the retainer with the client (agreeing what issues the solicitor is required to advise on), and then to regularly review progress of the transaction as it progresses Commercial lawyers should also apply their minds to potentially adverse scenarios that might put their client at risk. What if the other party becomes insolvent; or the property price falls (or rises); or the exchange rate changes during an international transaction?

IT can also be used to avoid claims for a contract error, with effective drafting software now widely available to law firms.

However, despite the existence of modern technology drafting mistakes continue to occur, resulting in compensation claims being made against solicitors. If you believe that your solicitor has made a mistake when drafting a contract and you have lost out financially as a result, then we are here to help.

We deal with solicitors negligence claims nationwide and are experienced in claiming compensation for contract error cases. We will be happy to provide an assessment of your case free of charge, together with details of no win, no fee funding. Call us now on 0333 888 0403 or email details of your claim to us at [email protected]

 

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Help for litigants in person

We offer help for litigants in person making a professional negligence claim

Our professional negligence team provide help for litigants in person making a professional negligence claim. You can call upon our help as and when you need it, limiting your responsibility for paying legal costs to the time we spend dealing with a specific issue, rather than the whole case from start to finish.

Are litigants in person really on an equal footing?

The law requires courts to ensure that parties in litigation are on an “equal footing” and that “everyone is entitled to a fair… hearing”.  So surely, with this in mind, when a litigant in person is opposing a party who has full legal representation and seemingly unending resources, the court should play fair and try to level the playing field?

Yes.  But not quite as much as you would think.

This complex relationship was considered by the High Court in the case of Axnollar Events Ltd -v- Brake and others where the defendants, finding themselves as litigants in person, asked the claimants to provide them with a hard copy of the trial bundle without charge.  Faced with refusal, they asked the Court to intervene.

The claimants had brought proceedings against two defendants. Initially, the defendants were represented by lawyers, but funds ran out and they became litigants in person. 

The Directions specified that the trial bundle was to be supplied in electronic form.  However, the defendants complained that, with poor internet connection and lack of resources, they would need a paper copy. The claimants said that they could provide it but the defendants would have to pay their charges for copying the bundle and sending it by courier. The defendants said they were unable to afford those charges and applied to the court for a variation of the order.

To be fair, by the time the hearing occurred, the claimants had provided the paper bundle, but they had also sent a bill along with it.  The defendants felt that it was unfair and wanted the bundle to be provided without charge.

Years ago parties had always been responsible for preparing their own trial bundle. The claimant would send the defendant an index and the defendant then had to prepare their own copy, hoping that the page numbers would marry up.  New rules were then introduced putting responsibility on the claimant but they didn’t specify who should pay the cost.  The court therefore concluded that there was no requirement to provide a hard copy trial bundle free of charge.

The defendants made much of the fact that they were litigants in person and did not have the resources, or even the funds, to arrange for a copy of the bundle to be provided.  In response to this the judge said:

“I remind myself that, absent specific provision made in the rules, the position of a litigant in person is the same as that of a represented litigant, and it is generally not right to give advantages to litigants in person which are not given to represented litigants.”

He also quoted the case of Barton v Wright Hassall:

“At a time when the availability of legal aid and conditional fee agreements have been restricted, some litigants may have little option but to represent themselves. Their lack of representation will often justify making allowances in making case management decisions and in conducting hearings. But it will not usually justify applying to litigants in person a lower standard of compliance with rules or orders of the court.” 

The judge concluded that:

some expenditure by each of the parties is unavoidable.  Equipping yourself with the necessary papers for the trial process is part of that.”

So what about the “equal footing” that the rules refer to?  He dealt with that also:

Equal footing does not mean that litigation cannot take place unless all parties have equal resources

Ouch!

Professional help for litigants in person making a professional negligence claim

At a time when legal fees can be unaffordable for the average person – especially in claims that fall into the small claims court, where costs generally cannot recovered even if you win – it is understandable why many people feel they have no choice but to become litigants in person.  The courts will accommodate litigants in person, but only to a certain extent; their role is to ultimately enforce compliance with rules. The reality is that, in many instances, litigants in person will be at a disadvantage.

Here at Slee Blackwell, we recognise that. So, if the merits of a case are good and the value of the claim is substantial (ideally well above the £10,000 small claims court limit) then we are always happy to consider the possibility of no win, no fee funding.

In cases where it is not financially feasible for us to take on the case completely, we offer a service where we can assist you on an ad-hoc basis.  You will deal with the claim on a day-to-day basis and when you get to a point where you need help, we are there to assist you. You then pay our charges for the time we spend dealing with the specific issue and not the whole case.

If you would like to know more about the help for litigants in person that we offer or wish to discuss your options then please do not hesitate to call our free legal helpline and speak to either Emma Slade or David Paull on 0333 888 0403 or email us at [email protected]

Guide

Claiming compensation for a short lease

Can I claim compensation for a short lease?

To find out if you can claim compensation for a short lease call our legal helpline for a free case assessment and details of no win, no fee funding. Call 0333 888 0403 or email details to [email protected]

You may be able to claim compensation for a short lease if your conveyancing solicitor failed to advise you about the problems commonly associated with short leases when you purchased your leasehold property.

Many properties in the UK are leasehold, particularly flats and apartments. Leases are granted by the freeholder of the land for a specific period. Leases are often granted for 999 years, which doesn’t cause any issues when you come to sell them on as there will be plenty of time remaining. However, some leases are granted for much shorter periods. this means that when they are sold on, the remaining term of the lease may be very short; as short as 80, 70 or even 60 years.

If you buy a short lease then it is likely that you will have difficulty is selling it on unless you pay for the lease to be extended. Lease extensions can cost a lot of money, and the shorter the lease is, the more money it will cost. You must also own a property for two years before you can extend.

This expense needs to be factored in when you are purchasing the property. It is therefore important that you are made aware of this when you buy. Most conveyancing solicitors will draw this issue to their client’s attention. This gives the buyer the opportunity to renegotiate the purchase price or withdraw from the transaction. It also allows you to ask the seller to serve a lease extension notice on the freeholder before you buy so that you can extend the lease without waiting two years.

However, lawyers do sometimes fail to warn their clients that the lease they are acquiring is short. When this happens then the unwitting purchaser may be able to claim compensation for the short lease from their solicitor.

The amount of compensation will vary from case to case. It may be the amount it costs to extend the lease or it could be the difference in value between the price you paid for the property and its actual value, taking into account the short lease.

We deal with solicitors negligence claims nationwide and are experienced in claiming compensation for a short lease. We will be happy to provide an assessment of your case free of charge, together with details of no win, no fee funding. Call us now on 0333 888 0403 or email details of your claim to us at [email protected]

 

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Conveyancing mistake

When a conveyancing mistake is made are you entitled to claim compensation?

If you are looking for experienced solicitors to deal with a conveyancing error then call our free helpline for a case assessment and details on no win, no fee funding. Call 0333 888 0403 or email brief details to us at [email protected].

A conveyancing mistake can be costly. Buying a house or a flat is probably the single most expensive purchase you will ever make, so you need to make sure that it is handled properly and that all the important legal issues are carefully considered.

The kitchen extension:  Is it legal?  Is there planning permission?  Building regulations approval?

The driveway: Does it belong to you?  Does your neighbour have a right to use it?  

The garden.  Do you own it?  Are the boundaries correct?

The septic tank:  Who is responsible for it?  Does it comply with current regulations?  Can anyone else use it and if so, what is their contribution to its upkeep?

There are a huge number of legal questions that need to be considered when buying a property. Most people would never stop and think about many of them; which is why you use a solicitor to think of them for you.

In the vast majority of cases the purchase of a property will go ahead smoothly without any hiccups. However, things do sometimes go wrong and a conveyancing mistake occurs.  The solicitor may for instance fail to notice that planning permission for the kitchen extension was never granted. Or someone starts driving over your property as a Right of Way wasn’t noticed.  Or the water pipes burst and you suddenly find yourself responsible for their replacement as ownership of the pipes was overlooked.  

In each of those instances, if the problem had been noticed before you completed on the purchase you would have had the choice to pull out of the transaction, negotiate a reduction in the price or obtain an insurance policy to protect you.  If the conveyancing mistake has denied you those options and you are now out of pocket as a result, you may be able to claim compensation by bringing a professional negligence claim against the solicitor who carried out the conveyancing.

We operate a free legal helpline for people who have suffered a financial loss exceeding £10,000 as a result of a conveyancing mistake. You can call us on 0333 888 0403 or send an email with brief details to [email protected]

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Solicitor messed up my divorce

My solicitor messed up my divorce. Can I claim compensation?

We are regularly contacted by people complaining, “my solicitor messed up my divorce.” If you are in that position and would like to know where you stand then contact us for a free case assessment and details of no win, no fee funding.

Divorce is never a pleasant experience, so when it goes wrong the effect can be devastating. 

As with most legal disputes, an element of compromise on both sides is needed in order to reach a settlement. This means that people rarely walk away from a divorce feeling 100% satisfied. However, while that sense of dissatisfaction is in most cases an unavoidable consequence of the divorce process, occasionally the outcome is made worse by the actions of a solicitor.

What can go wrong during the divorce process?

There is much that can go wrong during a divorce which can in turn lead to significant financial loss being suffered. Examples include:

  • Under-settling the financial claim;
  • Failing to identify a matrimonial asset;
  • Failing to prevent dissipation of matrimonial assets;
  • Incorrect valuation of assets, especially property and pensions;
  • Failing to comply with a Court order leading to all or part of a claim being struck out;
  • Incorrectly drafting any settlement agreements or court orders; and
  • Failing to implement a Court Order.

Can I sue the solicitor who messed up my divorce?

If your solicitor (or barrister) messed up and caused you financial loss, then yes, you may be able to bring a compensation claim on the basis of negligence. 

But bear in mind that simply because you did not receive all that you had hoped for, it does not necessarily mean that your legal team were negligent.  You will have to prove that they acted in a way that no reasonably competent solicitor or barrister (with similar qualifications and experience) would have done. Furthermore, you have to show that your losses stem from that negligence and not from any other causes.

How we can help

If you are thinking of making a compensation claim against the solicitor who messed up your divorce and you have suffered loss exceeding £10,000 then you can contact us for a free initial discussion. We will look at what you think the solicitor got wrong and the loss you have suffered as a result. If there are grounds for a claim then we will be happy to consider working on a no-win no fee basis.

Call us on 0333 888 0403 or email [email protected] for a free initial assessment of your case.

 

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Claiming compensation for the wrong financial advice

Claims for being given the wrong financial advice

If you have been given the wrong financial advice and would like to know if you can claim compensation, then contact us for a free case assessment and details of no win, no fee funding.

If you want to look after your hard-earned money then professional financial planning is an absolute must.  You may need advice on where to invest your savings, how to plan for your retirement or opportunities of reaping a better return on your assets.  While some people go to their accountant for this advice, others use the specialist services of an independent financial planner (IFA).  In most instances, that advice works out well, but occasionally it doesn’t.  That’s when consideration needs to be given to whether your loss is attributable to the inevitable fluctuations of the market or wrong financial advice.

Examples of wrong financial advice include:

  • Misunderstanding the risk profiles, resulting in the money of a cautious investor being put into high risk investments;
  • Encouraging people to enter into risky investment schemes without the relevant warnings or explaining the implications;
  • Suggesting a tax avoidance scheme which HMRC subsequently close down;
  • Promoting inappropriate investment schemes without checking their provenance or performance history;
  • Failure to ensure that the investor can actually afford the investment; and
  • Recommending unsuitable pensions and Self Invested Personal Pensions (SIPPS).

Whatever form the wrong financial advice takes and whatever loss it leads to, if the IFA failed to advise you to a suitable, professional standard, then they could be negligent and liable to pay you compensation.  

We specialise in financial negligence. So, if you feel that you have been let down by your your IFA, then call us and we will be happy to discuss your claim with you.   We can also look at funding options, including the availability of a no-win, no-fee. Do not delay in calling though: negligence claims do have strict time limits and they can quickly pass.

To discuss claiming compensation for wrong financial advice on a free, no-obligation basis, please call Emma Slade on 0333 888 0403 or email [email protected] .  We are here to help.

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Construction projects gone wrong & the role of Project Managers

Professional negligence solicitor, Emma Slade, looks at construction projects gone wrong and project manager negligence

For expert advice on construction projects gone wrong and project manager negligence contact us for a free case assessment and details of no win, no fee funding.

There is a multitude of reasons why a construction project may go wrong and end up in a legal dispute.  Poor workmanship, poor design and poor timetabling are all common.  But what about poor supervision?

Anybody involved in a build project will undoubtedly have heard of a JCT Contract.  In fact, there are a suite of contracts that have been prepared by the Joint Contracts Tribunal and have been created to “facilitate the process of delivering a building project. In simple terms they set out the responsibilities of all the parties within the process and their obligations to each other”.

One of the recommendations in a JCT Contract is to appoint a contract administrator (or a project manager under NEC Contracts) who will be the client’s representative throughout the project and is there to oversee the works themselves.  Customarily, the role will go to the likes of a surveyor or an architect, but it can be any number of professions.

However appointment of a project manager is no guarantee that things will run smoothly. Unfortunately there are lots of examples of construction projects gone wrong even where a project manager has been hires to oversee things.

Construction projects gone wrong and negligence cases involving project managers can include the following:

  • Failure to ensure the contract is signed;
  • Failure to notice or report on defects;
  • Failure to comply with the timetable;
  • Biased decisions;
  • Allowing an overrun on costs;
  • Negligently issuing Interim or Final Certificates;
  • Failure to ensure insurance was in place; and
  • Recommending unreliable contractors.

And where negligence occurs, invariably a financial loss results: an overrun on the project; additional build costs; inability to recover against the main contractor; having a build fail due to incompetence are all common claims.

We are professional negligence solicitors specialising in construction projects gone wrong & project manager negligence claims on a national basis. We offer various funding options including No Win, No Fee.

For guidance on construction projects gone wrong or negligence claims involving a project manager call our free legal helpline on 0333 888 0403 or email details of your case to us at [email protected]

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This website www.proneg.co.uk has been in operation for more than 20 years, making it one of the longest established professional negligence resources available on the internet.

It is run by Slee Blackwell Solicitors LLP, an award-winning firm of solicitors specialising in professional negligence law. We have been awarded Lexcel accreditation by The Law Society for excellence in client care and the firm is included in the independent guide to the legal profession, The Legal 500.

We exclusively represent claimants and provide a nationwide service throughout England and Wales. We are usually able to offer No Win, No Fee funding where the prospects of success are good, and the value of the compensation claim exceeds £25,000.

A member of our specialist team will be happy to provide you with a free assessment of your case. Simply contact us by phone or email.

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