We deal with a range of negligence cases against personal injury solicitors, including claims that arise when a mistake by a solicitor leads to the case being lost or ‘struck out’. However, in this article Emma Slade looks at one particularly common cause for complaint; the injury settlement that is far too low.

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 0333 888 0403.

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 the claim 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 to 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 five questions above. Provided there are sufficient merits in the case and the value of the claim exceeds the Small Claims Court limit (£10,000 as at September 2022), we would be happy to consider assisting on a no win, no fee basis.

Please contact us on 0333 888 0403 or email us at [email protected]

Has your solicitor missed a limitation date?

Can I claim compensation if my solicitor missed a limitation date? Find out by calling our free legal helpline for a case assessment and details of no win, no fee funding on 0333 888 0403 or emailing us at [email protected].

If your solicitor has missed a limitation date it is likely that you will be entitled to recover compensation. However, there are a number of legal points that will need to be considered before a claim can be made.

First, has the limitation date actually been missed? 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 always quite that simple and identifying the correct limitation date and confirming that it has definitely been missed can require considerable legal expertise.

Where it is confirmed that the limitation date has been missed, the consequences for the case van be fatal. More often than not there is no way back for the claimant after missing a limitation date and their chance of pursuing justice evaporates.

Regrettably mistakes are frequently made, leaving the client then asking, ‘Can I claim compensation if my solicitor missed a limitation date?’

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.

Case study 1: 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.

Case study 2: 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.

Case study 3: 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 dates work 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 0333 888 0403 or email us at [email protected]

How do I sue my solicitor if they make a mistake?

If you are contemplating a claim because your solicitor has made a mistake, then you can contact us for a free assessment of your claim and details of No Win, No Fee funding. Call 0333 888 0403 or send brief details of your case to us at [email protected]

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’s mistake 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 (September 2022). 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 some 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.

However, it is only commercially viable for us to work on a No Win, No Fee basis where the value of the claim exceeds £25,000.

It is also important to bear in mind that the financial loss you are claiming must be direct. 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 losses may not be recoverable

How to make a claim against a solicitor on a No Win, No Fee basis

If your solicitor has caused you to suffer financial losses in excess of £25,000, 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; and
3. the claim has a value that is in excess of £25,000.

If you feel that your case would be eligible for No Win, No Fee funding then contact us for a free case assessment.

Call 0333 888 0403 or send brief details of your case to us at [email protected]

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 (September 2022) £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 0333 888 0403.

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.

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 a free initial assessment of the legal merits of your case and 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 0333 888 0403.

Making a professional negligence claim against a solicitor, doesn’t necessarily involve alleging that the solicitor has been dishonest. Most negligence claims arise fro ‘honest mistakes’, without any suggestion that the solicitor has acted disingenuously. Case of outright dishonesty are relatively rare.

There is a popular picture that lawyers are strangers to the truth, always ready to give a false colouring to the facts and generally dissemble and equivocate, 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 0333 888 0403 or email us direct at [email protected]

 

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 Solicitors 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.”

So, can I sue my solicitor for breach of the Solicitors Code of Conduct? On the basis of this ruling, 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 Solicitors 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. For a free assessment of your claim please submit brief details by email to [email protected] or call us on 0333 888 0403.

Making a building defects claim? Use our handy ‘Building Defects Claim Sheet’

We specialise in building defect claims nationwide. To find out where you stand call our free legal helpline on 0333 888 0403 or send an email to [email protected]

If you wish to make a building defects claim then it is important to identify as early as possible the key facts of the case that will help establish liability and the losses you wish to recover.

To assist you with this we have prepared a short Building Defects Claim Sheet. It is a useful aide memoir and will assist you in marshalling the key facts so that they can be presented in a way that will best support your case.

If you are thinking about  making a building defects claim or simply want to know what your options are then we can provide you with an initial assessment of the legal merits of your case and its suitability for no win, no fee funding. Simply complete the claim sheet below and send it to us by post or email. We will then get back to you with our thoughts and recommendations.

Every case is different, so please bear in mind that a ‘one size fits all’ claim sheet like this can only a rough guide. You should therefore feel free to add any additional information that you think is relevant. And if there are any questions you are uncertain about then leave them blank and pass on to the next section.

We are able to deal with claims on a No Win, No Fee basis where the financial loss incurred as a direct result of the negligence exceeds £10,000 – the current Small Claims Court financial limit. Regrettably we cannot provide a free assessment of claims under this value.

If you run into any problems completing the form please call our free legal helpline on 0333 888 0403 and we will guide you through it.

We specialise in dealing with building defect claims and negligent survey cases nationwide. For further details of the services we offer call us on 0333 888 0403 or send an email to us at [email protected]

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Following a divorce, Mrs Minkin negotiated a financial settlement with her husband without input from a solicitor.  She was a chartered accountant by profession so obviously knew her way around a spreadsheet or two and felt pretty able to understand what was going on.  Even so, she had a few doubts about it and took advice from a solicitor who suggested that maybe, the agreement wasn’t as fair as she had thought.  Even so, Mrs Minkin decided to continue with the settlement agreement.  She and her ex-husband lodged a Consent Order with the Court but it was rejected for drafting errors.  To assist with correcting the errors, Mrs Minkin instructed Landsberg t/a Barnet Family Law.  Her instructions were clear: please re-draft the order so it will be approved by the Court.  They did; it was; job done.

Mrs Minkin then had a change of heart and sued her solicitors for professional negligence.

She argued that Landsberg had been negligent for failing to advise her that the settlement probably wasn’t a good one for her.  The Court found against her.  Now setting aside the fact that Mrs Minkin’s instructions were very limited (“please re-draft the order”) and the fact that she had had previous advice on the suitability of the settlement, the Court also concluded that she was a “sophisticated client”.  She was an intelligent woman who had qualified and practised as a chartered accountant, she was well versed in litigation and she understood complicated legal concepts.  There were also copies of emails and other correspondence in the Trial Bundle which showed she had a good grasp of the issues and was clearly competent.  In other words, she did not need as much help, assistance and advice as someone with less familiarity with matrimonial litigation. 

The court concluded that while a solicitor has a duty to give advice that is reasonably incidental to the retainer, that duty is dependent upon the character and expertise of the Client in question.  It is all fact dependent though.  An experienced business person will not wish to pay for advice for something  they already know; an impoverished client will not wish to pay for something that they cannot afford; an inexperienced client will expect to be warned of the risks which may be apparent to the solicitor but not to the client.

So what about my “sophisticated clients”?

Both clients are bringing professional negligence claims against their solicitor. And in both cases the defendants are arguing that the standard of legal advice they were required to give was lower because the clients were educated and knowledgeable – ergo the clients have no valid claim.

One of them is a lady who trained as a barrister, spent years in the industry as a practising solicitor and her correspondence was erudite and precise.  They say she did not need as much advice given about the prospects of settling a legal action.  Like an onion though, peel off the layers and you get a different story: she did a college course to be a barrister but never practised as one.  She then trained as a solicitor in the Middle East in an area of law that had nothing to do with litigation and for a total period of less than three years.  Her correspondence was littered with requests for legal advice and clarification.

The second is one is in my opinion even more tenuous.  She runs a publication company producing information directories.  Someone was trying to pass themselves off as being affiliated to her business and she wanted it stopped.  She instructed solicitors but no advice was given to her about obtaining an injunction or, importantly, that by delaying an application for an injunction her chances of getting one would reduce.  They claimed that she was an intelligent businesswoman and therefore they did not need to give her that advice, even though she has no previous experience of seeking an injunction.

In both cases, neither solicitor appears to have made any effort to establish the extent of their client’s knowledge and experience, or either discussed with them or let them know in writing that they would be limiting their advice.

I am sure that both my clients are flattered to be considered ‘sophisticated’, but in both instances, I think it would be a stretch to call them Minkin-sophisticated.  It is going to be interesting though, to see how the solicitors in each instance continue with their line of defence  Either way, I will continue to provide my sophisticated clients or – given my argument – not-so-sophisticated clients, a sophisticated service!