My surveyor has made a mistake, what can I do?

For guidance on surveyor mistake compensation claims contact our free legal helpline. Call 0333 888 0403 or email us at [email protected] with brief details of your claim.

Surveyors, just like any other professional, make mistakes. Sometimes the surveyor’s mistake can have far reaching consequences for their client and result in substantial financial loss. When this occurs you will probably want to think about making a legal claim for compensation. The aim of compensation is to cover the financial losses you have incurred as a direct result of the surveyor mistake. This may reflect the degree to which your property’s value has been diminished by the mistake or the cost of remedial works.

What type of surveyor mistake can I claim for?

There are a number of common mistakes that surveyors make. One particular category is ‘failure to warn’. This is where the surveyor has a duty to report to their client on the condition of a property but fails to identify a serious problem. This includes failing to warn that:

• a property has subsidence;
• there is a structural defect;
• the property has a damp problem;
• the property contains asbestos;
• there is dry rot; and
• it is affected by Japanese Knotweed.

Surveyors can also make a mistake in relation to:

• valuing a property;
• measuring a property; and
• failing to consider adverse rights affecting a property, such as a right of way.

How should I go about making a surveyor mistake claim?

If your surveyor has made a mistake then we would recommend that you seek immediate legal advice from a specialist solicitor. The solicitor will need to consider whether the mistake is likely to amount to ‘negligence’ in the strict legal sense of the word and what financial loss can be recovered.

Are there any time limits I should be aware of?

Yes. The standard limitation period is 6 years from the date of the surveyor’s mistake, or 3 years from the date you first discovered the mistake. However time limits are complex and professional advice should always be taken.

How we can help you with your surveyor mistake claim.

We specialise in surveyor negligence cases on a nationwide basis. We operate a legal helpline which you can contact for a FREE case assessment. Call 0333 888 0403. Alternatively you can email us at [email protected] with brief details of your proposed claim.

No Win, No Fee funding.

We deal with surveyor mistake claims on a No Win, No Fee basis. We will assess the merits of your case and if it is suitable we will give you details of our No Win, No Fee option.

 

Don’t delay in bringing a tax avoidance scheme claim

If you are looking for solicitors who specialise in tax avoidance scheme claims then do not delay in contacting us for a free case assessment.

Following the flurry of media interest in the wake of the Paradise Papers, HMRC has responded by cracking down on so called tax avoidance schemes.

It remains the case that tax evasion is illegal whereas tax avoidance is not. However the line between the two is often blurred and can change from one day to the next depending on the interpretation of HMRC and the Courts.

A recent legal decision has highlighted the risk that tax avoidance schemes pose and the consequences for financial advisors, accountants and solicitors who provide negligent advice. The case also underlines the importance of bringing a tax avoidance scheme negligence claim before limitation expires.

The case in question is Halsall & Ors v Champion Consulting Ltd & Ors. It involved an allegation of negligent advice on a “charity shell” scheme and a “Scion” film scheme, both designed to avoid a liability to pay tax.

The claim succeeded on liability and on causation. This meant that the defendant’s had been negligent and their negligence had caused loss to be suffered. However the claim failed on limitation and was accordingly dismissed..

In summary, the defendant advised the claimants that the film scheme had a 75% chance of being successful, whereas the Court, having heard from an expert on that point, adjudged that the prospects of success were not more than 50%. As a result the claimants would have won the case but for the fact that the Court decided the claim had been issued too late. In other words the case had been brought out of time as the limitation date had already expired. The claim therefore failed completely.

There are two limitation periods that can apply to professional negligence claims. The first is six years from the date that you have a cause of action (i.e. the negligence that results in you having a claim) and the second is three years from the date that you have knowledge that you have a claim; whichever is later. Both limitation periods are subject to a maximum limitation period of 15 years from the cause of action. The three year period is designed to cover a scenario where a claimant may not know that they had a claim when the negligence initially occurred and provides them with the opportunity to pursue a claim, even if they are outside the standard six year period.

In the Halsall case, the claimants brought their claim after the six year period had expired, relying on the three year ‘date of knowledge’ period. Unfortunately for the claimants the Court decided that the three year period started before they thought it did. As a result their claim was brought too late and so failed.

The test for when the three year period starts to run is not straightforward and can turn on the facts of each individual case. The “date of knowledge” in this case was at the point at which the claimants knew enough for it to be reasonable to begin to investigate further. The claimants did not have to know for certain that the scheme would definitely fail. A claimant must simply know enough for it to be reasonable to investigate further. There needs to be something which would reasonably cause the claimant to start asking questions about the advice they were given. The Court concluded that as a result of correspondence from HMRC stating that they did not accept the claimants were due the tax relief sought and that HMRC had grounds to challenge both the losses and the relief claimed, the claimants knew enough for it to be reasonable to begin to investigate further, even if they did not know whether HMRC were correct or not.

The message that this case sends in relation to limitation and tax avoidance scheme claims is a straightforward one: It remains the case that as soon as a claimant thinks that they have a claim for negligence then they should get legal advice immediately. A claimant has a duty to take reasonable steps to try and mitigate their loss or, if possible, avoid any loss arising from the negligence. It is therefore vital to ensure that any professional negligence claim is brought in time and if necessary before those steps have been completed.

It may well be the case that the claimants entered into correspondence with HMRC to try and avoid or reduce their liability or to appeal or otherwise challenge the decision. However taking those steps, whilst they may have been necessary to mitigate loss, do not have any impact on the actual limitation date. The same message applies whatever type of professional negligence claim you wish to pursue. Get legal advice as early as possible.

You can read here an article we have written on tax avoidance scheme claims and the legal duties owed by an advisor to third parties.

We specialise in bringing tax avoidance scheme claims and offer a free case assessment service. Simply submit brief details of your claim by email to [email protected] or call us on 0333 888 0403.

We are often approached by worried people asking, “What can I do if my case is struck out by the court.” We look at what can be done when disaster strikes

We specialise in negligence claims against solicitors, dealing with cases that have been struck out due to a legal error nationwide on a No Win, No Fee basis. For a free assessment of your case call freephone 0333 888 0403 or email us at [email protected]

What does it mean if a case is struck out?

The legal term ‘struck out’ fills most lawyers with dread. In simple terms, when a case is struck out it means that it has been dismissed by the court and cannot be pursued any further. Unless the court agrees to reinstate the case it is the end of the line for that legal action. The consequences of this can be devastating. Not only will the party be denied the opportunity of continuing with their case, but they may also end up having to pay their opponent’s legal costs as well as their own.

Striking out can apply to a claim that is being made or a defence to a claim. If the claimant’s case is struck out then their claim is lost. If a defence is struck out then the claim can no longer be defended and judgement could be entered.

The court’s power to strike out a case

A court can strike out a statement of case under Civil Procedure Rules where it appears to the court that:

1. There are no reasonable grounds for bringing or defending a claim;
2. The case is an abuse of the court’s process or is likely to obstruct the just disposal of the proceedings; or
3. There has been a failure to comply with a rule, practice direction or court order.

A ‘statement of case’ in civil proceedings is a document in which a party sets out the facts of their case, detailing the merits of the case and the issues they intend to rely on in the legal proceedings.

A claimant’s statement of claim, the defendant’s defence and any counterclaim, are all statements of case. They allow the parties and the court to identify the issues in dispute and assist the judge in reaching an informed decision about the case.

Statements of case should be drafted to enable the parties and the judge to see the parties’ position on the issues in dispute. The document should set out the whole picture as concisely as possible.

The consequences of a case being struck out

The court’s power to strike out a statement of case is a draconian one.

When a party’s statement of case is struck out their legal position in the proceedings is likely to be fundamentally and irreparably prejudiced. If they are a claimant it could mean that their claim is lost. If they are a defendant it could mean that their opponent will be able to enter judgment against them.

There are also important cost consequences following a striking out order. A party whose statement of case is struck out in its entirety is likely to be ordered to pay their opponent’s costs. In long running litigation these legal costs may amount to a considerable sum.

What you can do if your case is struck out

Where you have retained a solicitor to act on your behalf and discover that your case has been struck out you then you may wish to consider the reasons behind the striking out. If you find that your case has been struck out because of something your solicitor has done, or has failed to do, then you could well be entitled to pursue a claim against the solicitor for compensation for professional negligence. This will give you an opportunity of recovering your losses, which may include:

1. The value of the case that has been struck out;
2. The legal costs that you are ordered to pay to your opponent; and
3. Your own wasted legal costs.

We will be happy to review your case. We can offer guidance on pursuing a compensation claim against your solicitor and may be able to recommend steps that we can take on your behalf to reduce or limit the damage to your position.

If you are representing yourself as a litigant in person and have been threatened with an application to strike out then you may benefit from seeking urgent legal advice from a qualified lawyer.

No Win, No Fee strike out claims

If you wish to pursue a compensation claim against a solicitor because an error made by them has resulted in your case being struck out, then we will be happy to consider whether we can deal with it on a No Win, No Fee basis.

So, if your case has been struck out and you feel that your solicitor has been at fault then call our legal helpline for a free assessment of how we can help, and details of No Win, No Fee funding. Call 0333 888 0403 or email us at [email protected]

A:         God only thinks he’s a doctor!

Apologies to all doctors out there, but in its awkward way this Christmas cracker joke makes my point for me: as much as we would like it to be otherwise, professionals are not as infallible as we, or they, would like to think.  Mistakes can be made, particularly when advice is sought on issues which are finely balanced.  In those instances, should a professional warn you that he could be wrong?  It would seem so.

The leading case on this is the 2001 Court of Appeal decision in Queen Elizabeth’s School Blackburn Ltd –v- Banks Wilson Solicitors (a firm).  In that case, the school (QES) had purchased property from their neighbour, C, that they intended to develop.  A clause was included in the contract that any new development was not to be “greater in height than the buildings now existing”.  Unfortunately, QES did not inform their architect of this clause and the drawings showed a building taller than C cared for.

In October 1994, one of the school governors (W) asked the school’s solicitor about the height restriction.  W told the solicitor that C had been querying it and had even attended the site for a meeting with QES.  The solicitor told W that he felt that the height restriction wasn’t to the roofline but to the height of the chimney pots.  In February 1995, he confirmed his view in writing and at a later meeting on site, the solicitor told W that there was a “strong argument” that the ridge line was not the height marker.  He was apparently asked whether he could “guarantee that his advice was correct” but the solicitor – as all good lawyers are wont to do – said that whilst “he had confidence in his advice… nothing was certain in litigation and he could give no guarantee as to how the court might view the matter.”

Unfortunately, discussions with C did not go well and to avoid any possibility of a breach, QES instructed their architects to amend their plans.  In so doing, QES incurred more expense, significantly more than they would have had done if, they argued, the solicitor had been more circumspect in his advice in October 1994. 

QES therefore made a solicitors negligence claim for compensation.

At first instance, the judge dismissed the solicitors negligence claim on the basis that the solicitor’s advice was correct in law (although the Court accepted there was a risk that other courts might have taken a different view) and as a result the solicitor had not been negligent. 

The decision was successfully appealed. Not only did QES disagree with the judge’s interpretation, it was clear from his remarks that the decision about the meaning of the height covenant was ambiguous, which even the solicitor seems to have accepted by the fact that he could not guarantee that his advice was correct.  Importantly, the Court of Appeal concluded that the solicitor knew there was likely to be a dispute with C over the clause and that there was a risk about the construction of the clause.  He should have been more circumspect in his advice in October 1994 and warned of the risk. Because he didn’t do this the solicitors negligence claim was successful..

There have been other cases dealing with this point, but the most recent one has been the Court of Appeal decision in Barker –v- Baxendale Walker Solicitors (a firm) which affirms its previous decisions.  In this case, the claimant (B) placed his company shares into a trust so that upon his death, the trust monies could be used for the benefit of his children.  The scheme was intended to avoid payment of Capital Gains Tax and Inheritance Tax but unfortunately, it failed in its intentions as it turned on the interpretation of a specific clause under the Inheritance Tax Act 1984: to avoid paying IHT, his children could not be “connected” with B but at what date was the connection to be taken?  The date the shares were transferred into the trust or the date of B’s death?  The defendants who had been promoting the scheme to B, argued that it was the latter.  They were wrong.

The Court took the view that the defendants had been marketing an aggressive tax avoidance scheme which ran contrary to the purpose of the Act.  Given that there has been a long history of litigation where courts have been reluctant to uphold artificial tax avoidance transactions such as this, BW should have given a significant health warning when promoting this scheme and to warn B that there was always a risk the scheme wouldn’t work they way they had hoped.

But should such health warnings be given all the time?  Surely it would undermine a client’s faith in their adviser if all advice given came with cautious caveats?  Lord Justice Sedley summed it up best:

“Clients, I know, want two inconsistent things. They want confident advice on which they can act, and they want cautionary advice about the risks of doing so. It is a solicitor’s unhappy lot to have to try to satisfy both requirements simultaneously”

Very true.

However, what is clear from the cases dealing with this is that all of them are fact specific and dependent on the facts of the individual case. 

Secondly, the arguments for each side were very finely balanced and open to interpretation and the client should have been made aware of this.  It seems to me therefore that when giving advice, a solicitor (or other professional) should point out risks to any client and to urge caution.

Lawyer:            If you want my honest opinion…

Client:              I don’t want your honest opinion, I want your professional advice.

Enough said.

For free initial guidance on making a solicitors negligence claim, call us on 0333 888 0403 or email us at proneg.co.uk

For a very long time, barristers had what is known as “immunity from suit”.  It was a policy decision that a barrister could not be sued for negligence.  One of the main reasons was that as a barrister is an Officer of the Supreme Court, their duty is owed primarily to the Court and secondly to their client.  It was considered that if a client could sue their barrister, this may cause a conflict of interest and the barrister may find it difficult to be completely honest with the Court for fear of being sued.

Over time, this immunity was chipped away until a House of Lord’s case in 2000 said it was time to lift that immunity. people expected the floodgates to open for claims against barrister’s whose advocacy skills were negligent, but that has never happened.

Although in theory you can bring a claim against a barrister for negligent advocacy in a criminal trial, there are still a number of hurdles to overcome, especially where a criminal conviction has been the result.

First and foremost is the fact that challenging a criminal conviction (which includes a plea of guilty) in a civil court is, put bluntly, an abuse of process.  A conviction will only have been imposed following due process of the law and bearing in mind that to prove a claim in the criminal courts, you have to prove it “beyond reasonable doubt” (whereas in the civil courts it is only “on the balance of probabilities”) asking a civil court to override a criminal conviction would bring the administration of justice into disrepute.  The only way a civil court will therefore entertain a claim for negligent advocacy in a criminal trial is if that conviction has either been successfully appealed or successfully referred to the Criminal Cases Review Commission.

Secondly, you then need to prove that the barrister was negligent; that they acted in a way that no reasonably competent barrister with similar qualifications or experience would have done.  And this presents two problems.

1. There is a standard joke in litigation: put four lawyers in a room and you get five different opinions.  No two lawyers will think the same or act the same.  This was summed up very well by Sir Thomas Bingham MR  in the case of Ridehalgh v Horsefield  when he said:

“Any judge who is invited to make or contemplates making an order arising out of an advocate’s conduct of court proceedings must make full allowance for the fact that an advocate in court, like a commander in battle, often has to make decisions quickly and under pressure, in the fog of war and ignorant of developments on the other side of the hill. Mistakes will inevitably be made, things done which the outcome shows to have been unwise. But advocacy is more an art than a science. It cannot be conducted according to formulae. Individuals differ in their style and approach. It is only when, with all allowances made, an advocate’s conduct of court proceedings is quite plainly unjustifiable that it can be appropriate to make an […] order against him.”

Was it an error of judgment?  Or negligence?  It is a fine line.

2. Added to this is the great obstacle that anyone claiming negligent advocacy in a criminal trial will face; showing that, with a better standard of advocacy, there would have been a different outcome.

“[t]he virtual impossibility of fairly retrying at a later date the issue which was before the court on the earlier occasion. The present case exemplifies the problem. It is over 12 years since the crime was committed. Recollections (of the participants and the lawyers involved) must have faded. Witnesses have disappeared. Transcripts have been lost or destroyed. Hayes may, or may not, be available to testify. Evidence of events since the trial will be bound to intrude, as it already has. It is futile to suppose that the course of the Crown Court trial can be authentically re-created.”

In short, it isn’t easy too sue a barrister for negligence in relation to advocacy in a criminal trial, particularly in cases where the original conviction came out of the magistrate’s court.  Unknown to many, the magistrate’s court does not record its proceedings so it is impossible to establish what was said, by whom and whether the advocacy was undertaken negligently or not.  Added to that, the Claimant runs the risk that the same conclusion will be reached by the latter court, albeit on alternative evidence that was provided in the original court.

So if you have been wondering, “Can I sue my barrister?” and you would like to know where you stand, then give us a call on 0333 888 0403 or send an email with details of your case to [email protected]

Making a solicitors negligence claim

In this instalment of Emma Slade’s entertaining professional negligence blog, Emma looks at a solicitors negligence case that didn’t end well for the claimant. If you would like Emma to assess the merits of your solicitors negligence claim to ensure that you do not encounter similar problems then contact us for a free review. Call us on 0333 888 0403 or email us at [email protected] for a FREE case assessment and details of No Win, No Fee funding.

I used to watch Laurel & Hardy re-runs as a kid. Those black and white movies featuring the hilarious comic duo, made so much better as you could easily foresee what disaster was going to befall them. “The Music Box” was a particular favourite, with the pair trying to deliver an expensive piano up a large flight of stairs in yet another slapstick adventure. You just know the piano is going to fall back down the stairs and you are pretty sure there is an easier way to get the gift delivered to the premises. It is that sort of premonition I had when reading about the solicitors negligence case of Khanty-Mansiysk Recoveries Ltd –v- Forsters LLP which has recently been decided by the Court of Appeal.

I literally winced when I started reading the case. So much so that I had to go back and get a copy of the High Court judgment as well just to see if it was as obvious as I was seeing it.

Forsters LLP (F), a firm of solicitors,  were instructed by a company, Irtysh Petroleum plc (Ir) in relation to the purchase of shares in a Russian company which had an oil exploration licence in the Khanty-Mansiysk region of Russia. Between January 2007 and June 2010, F acted for Ir in the transaction and ultimately sent Ir an invoice for “professional services” for the period “January 2007 to June 2010”. Ir did not pay the invoice as it disputed the amount charged. F eventually issued proceedings against Ir and one of its directors who had given a personal guarantee for the costs. Ir entered into negotiations with F whereby an agreement was entered into.

It was the terms of the agreement that led to my Laurel & Hardy moment. Here are the main ones:

“2.1 This Agreement and the terms set out herein shall be in full and final settlement of all or any Claims which the Parties have, or could have had, against each other (whether in existence now or coming into existence at some time in the future, and whether or not in the contemplation of the Parties on the date hereof)… “

“Claims” was defined as follows:

“… any claim, potential claim, counterclaim, potential counterclaim… whether known or unknown, suspected or unsuspected, however and whenever arising in whatever capacity or jurisdiction, whether or not such claims are within the contemplation of the Parties at the time of this Agreement arising out of or in connection with the Action or the invoice dated 1 July 2010 addressed to [Irtysh] by [Forsters] and referred to in the Action”.

Please tell me you can see what is coming! In 2015, Ir went into liquidation and KMR bought Ir’s claims against F from the liquidators. KMR then brought a solicitors negligence case against F as it turned out that F had apparently failed to ensure that, when Ir purchased shares in the Russian company, there was no enforceable obligation on the seller to transfer the shares to Ir and the shares had never actually been transferred to Ir! The damages claimed were in excess of £70M. F immediately referred to the settlement agreement and said that KMR could not sue them. Even though no-one had realised F had been negligent at the time of entering the agreement; the definition of Claims included all those “whether known or unknown, suspected or unsuspected”.

KMR tried relying on BCCI –v- Ali . I don’t want to ramble on too much but it is worth looking at. In brief, Mr Ali had entered into a compromise agreement with BCCI following redundancy. A year later, BCCI went into liquidation as a result of corrupt management, such corruption stigmatising former employees in finding new employment. In 1998, the House of Lords decided that a claim for “stigma damages” was a legally permissible claim, albeit not previously seen in English law. Mr Ali wanted to claim “stigma damages” even though his compromise agreement stated that no claims could be brought. In that case, the Court decided that it “should be very slow to infer that a party intended to surrender rights and claims of which he was unaware and could not have been aware”. As “stigma damages” were a new phenomenon, it couldn’t have been in the parties contemplation at the time of the agreement, so Mr Ali wasn’t bound by it.

However, when it came to this case, both the High Court and Court of Appeal disagreed with KMR’s argument that Ali applied. Whilst the compromise agreement between F and Ir dealt with the issue of F’s fees, it was clearly intended to go a lot further than that as it specifically referred to “unknown” claims and those “not in the contemplation” of the parties. It was a clause that had been drafted very widely and, unlike Ali, a claim for professional negligence is not a new area of law that could not have been known about at the time.

So the solicitors negligence case was thrown out and I am truly not surprised. As far as I can see, the settlement agreement was absolutely clear: Ir could not sue F for anything that they may or may not have done between “January 2007 to June 2010”. What I can’t understand though is the thinking behind such a wide clause. Surely someone could have foreseen this to be a problem and specifically excluded negligence? Clearly not. But then we get to the ironic part. KMR aren’t going to be able to sue the solicitors who drafted the agreement for Ir. As I mentioned above, Ir are in liquidation and so the right to any such claim vests in the liquidators. KMR had already obtained an assignment of Ir’s claim against F and I suspect they paid a pretty penny to get those rights. Can they afford to do it again? And so, you can understand why I winced at the Laurel & Hardy-esque type scenario as I read those judgments, moreso when I realised the ending. Only one thing to say: “that’s gotta hurt!”

If you have been the victim of solicitors negligence and would like to know whether you are entitled to bring a claim for compensation call our specialist team on 0333 888 0403 or email us at [email protected] for a FREE case assessment and details of No Win, No Fee funding.

Professional negligence solicitor Emma Slade looks at a question she is often asked, ” Can I sue my solicitor?’

There aren’t many responses to a solicitors negligence claim that would cause me to do a double-take, but when I read a Letter of Response this week and saw what the Defendant was trying to argue, it made me blink.  Twice.

For those not already “in the know”, a Letter of Response is a stage in the Pre-Action Protocol for Professional Negligence where the defendant sets out why they believe the claim against them is unlikely to succeed: A ‘Defence’ in other words

In this particular instance, I had written a Letter of Claim to the Defendants (D), who are a firm of solicitors, saying that my Client (C) had instructed them to see whether or not C had a claim.  There was some urgency about C’s request as they were concerned that a former employee had stolen some valuable information belonging to C and was trying to profit from it.  Unfortunately, D sat on the matter for a considerable period of time before doing anything and by then, the damage had been done.  I was therefore saying that D had been negligent in failing to act swiftly after they were instructed and so the loss my client suffered was their fault.

Even though there is correspondence on D’s file confirming that they would “advise on merits” of the claim, the two-blink inducing response was that they did not consider themselves “formally instructed” by C until they had sent out their Client Care letter some seven months later.  As a result, they said they did not owe C any legal obligations (a ‘duty of care’ as lawyers call it).  Because a Defendant cannot be considered negligent unless they owe a ‘duty of care’ D said that our claim was unfounded.

In over twenty two years of practice, I have yet to receive a Letter of Response which goes along the lines of ,“Oops, terribly sorry. We got it wrong. When do you want the cheque?”  Defendants defend, its the natural response, even when they have to clutch at straws, but I certainly didn’t expect this defence.

Why is that? It would appear logical that until a solicitor sets out the terms of their retainer, a contract hasn’t been established, so the solicitor doesn’t owe the client a duty of care.  But can that be right?

Put simply, no.

If we look at contract law, whilst it is ideal to have a written contract (or in this instance, Terms & Conditions of Business), it is not critical.  The Courts will look at the actions and intentions of the parties.  This was established as a legal principle as far back as 1885 in the case of Bean –v- Wade but can be summed up by saying that a contractual retainer may arise:

“In a situation where the parties act as if the relationship of solicitor and client existed, although there is no express agreement to that effect, the court will readily hold that there is an implied retainer to be inferred from the parties’ conduct.”

But what about in tort?

In the 1990 case of Caparo –v- Dickman, the House of Lords, set out a three stage test:

(i)               Could harm be foreseeable if the solicitor did not take care?

(ii)              Did the parties have a sufficiently close relationship (proximity)?

(iii)             Is it fair, just and reasonable to impose that liability?

In each of those instances, I would say “yes” so far as my case was concerned.  C had gone to D for advice and given the facts of the case, if D did not act with reasonable speed, C’s case would be prejudiced.  C made it clear that they were going to rely on the advice and given that D offered to obtain the evidence and “advise on merits”, I think that any Court would say that it was ‘fair, just and reasonable’ to impose that liability.

But that isn’t the only case I am relying on.  I could start citing cases like Hedley Byrne –v- Heller or Customs & Excise –v- Barclays Bank which make it clear that a duty of care is owed when one of the parties assumes a level of responsibility, but there is a more recent case I have plumped for: Burgess –v- Lejonvarn which is a decision out of the Court of Appeal in 2017.  In that case, an architect provided her services free of charge and so claimed she did not owe the claimants a duty of care.  The Court disagreed and said:

“the fact that the services were gratuitously provided did not mean that they were informal or social in context and the services were all provided in a professional context and on a professional footing.”

Accordingly, the architect owed the claimant’s a duty of care.

Once I got over the eye-blinking trauma, I drafted a lengthy letter to go back to D citing all of the above and inviting them to concede that, in the circumstances and in light of the case law, they did in fact owe a duty of care to my client when they agreed to “advise on merits”, rather than when they sent out their retainer letter.

I’m rather looking forward to seeing how they respond now. It could be interesting.

Emma Slade is a solicitor and partner in our professional negligence department who specialises in bringing negligence claims against solicitors. We offer a free case assessment service, so if you have been wondering “Can I sue my solicitor?” then find out by sending brief details of your case to us by email at [email protected] or calling us on 0333 888 0403.

Making a dental negligence claim for having the wrong tooth extracted

To make a dental negligence claim for wrong tooth extraction on a no win, no fee basis contact our free legal helpline on 0333 888 0403 or email us at [email protected]

The dental profession has for some time been committed to reducing the risks associated with dentistry, with an increased emphasis on improving patient safety.

Even with the most stringent safeguards in place, dental negligence is unlikely to ever be eliminated altogether. However dentists do recognise that relatively simple steps can be taken to materially reduce the risk of it recurring.

According to a report in the British Dental Journal (BDJ) one area that has been identified as requiring urgent improvement is the problem of dentists extracting the wrong tooth.

The term ‘wrong tooth extraction’ is used to describe situations where a dentist has the patient’s consent to remove a particular tooth (one that may be infected or beyond repair) but goes on to remove another tooth; one which is perfectly sound and healthy.

The full extent of the problem in the UK is unknown, but it is clearly a serious issue for the dental profession and gives rise to a significant number of dental negligence claims each year.

In a bid to reduce the incidence of wrong tooth extraction dental experts have highlighted a number of safeguards that can be relatively easily and inexpensively implemented.

This includes the provision of professional educational programmes alongside risk reduction procedures such as checklists, the clear marking of surgical sites,  the use of patient assisted identification and the implementation of patient safety guidelines.

According to the BDJ report, the factors which increase the risk of wrong tooth extraction include:

• suboptimal checks and/or cross checking of relevant clinical information,
• unclear diagnosis,
• unclear documentation,
• ambiguity regarding notation of molar teeth,
• orthodontic extractions, and extractions where there are multiple carious teeth and
• extractions in the mixed dentition.

With improvements in professional education and the implementation of risk reduction measures it is hoped that the problem of wrong tooth extraction will diminish.

Patients who have suffered the ordeal of wrong tooth extraction and wish to know where they stand legally may contact our free legal helpline on 0333 888 0403 or email us at [email protected] for a free case assessment.

What can I do if my dentist has made a mistake?

If your dentist has made a mistake then get in touch with us for a free case assessment. Call 0333 888 0403 or email us at [email protected]

Private and NHS patients alike are entitled to receive a good standard of treatment from their dentist. Very occasionally however, mistakes are made and patients suffer as a result.

This includes cases where a dentist extracts the wrong tooth, causes nerve damage or incorrectly administers anaesthetic.

Dental mistakes occur during both routine treatment and more specialist procedures involving root canal surgery, wisdom teeth and dental implants. Dentists can also let their patients down by failing to make a correct diagnosis in relation to gum disease, oral cancer and periodontal disease or by misinterpreting X-Rays.

When dental treatment goes seriously wrong the patient may be entitled to claim compensation for dental negligence.

We offer a nationwide  no win- no fee dental negligence claim service and operate a very popular free legal helpline.

Victims of dental negligence can call us on 0333 888 0403 and speak to a lawyer specialising in medical and dental negligence claims.

If we feel that your dentist has not used an acceptable level of skill and care in carrying out the treatment and this has resulted in injury then we will consider the legal steps open to you, including making a claim on a no win – no fee basis.

We can also make arrangements for an independent dentist to review your treatment and provide an ‘expert report’ to support your claim.

In addition to receiving compensation for your ‘pain and suffering’ we can also claim medical expenses and the cost of future dental treatment, along with lost earnings and other out of pocket expenses.

So, if you think your dentist has made a mistake and would like to know if you can make a dental negligence claim then call our free helpline on 0333 888 0403 or email us at [email protected]

Professional negligence solicitor, Emma Slade, looks at negligent tenancy agreement claims

If you need expert guidance on making a negligent tenancy agreement claim then contact our free legal helpline. We specialise in negligence claims and deal with cases nationwide on a No Win, No Fee basis. Call freephone 0333 888 0403 or email us at [email protected]

When I had finished writing the last blog, I suddenly remembered a claim that I did quite a few years ago which was similar but different, if you know what I mean? I will tell you a bit about the law first; get that out of the way, before getting on with the story.

The Housing Act 1988 brought in two new types of tenancy agreement: an Assured Tenancy and an Assured Shorthold Tenancy.  An Assured Tenancy could be for any length of time provided the property was the tenant’s main home, the landlord did not live there and rent was paid.  To get a tenant out of the property, the landlord has to prove “grounds” for getting rid of him: non payment of rent, breach of the tenancy agreement etc.  An Assured Shorthold Tenancy (AST) is slightly different.  It is for a minimum period of 6 months and at the end of the tenancy, the landlord simply has to serve a two month notice which terminates the tenancy.  If the tenant does not get out, the landlord can issue proceedings in court called Accelerated Possession Proceedings.  It is simply a paper exercise with no need to attend court.  Provided the court is satisfied that the tenancy is an AST, the tenancy has expired and proper notice has been served, the court must give a possession order.

When this law came into force it was a bit of a revelation as the previous types of tenancy had not been easy beasts to handle.  There was only one fly in the ointment.  In order to create an AST, before the tenancy was entered into, the landlord had to serve a Notice on the tenant telling him that the tenancy he was about to enter into was an AST.  It was called a section 20 Notice.

Section 20 notices caused huge problems; define “before” for starters.  Is it the day before?  Or immediately before signing? The Housing Act 1996 (which came into effect on 1st October 1996) amended this and dispensed with s20 Notices for ASTs.

So that was the law at the time that I took on this case.

My client – who I will call Bob – and his wife had a very large house in Stockport which, following all their kids leaving home, had become too large for them.  Rather than sell up, they split the house into three and created three flats, the upper two flats they intended to let out.  This was in early 1996.

They found two tenants. Michael had the upstairs flat and they entered into an AST with him.  Tenants for the middle floor came and went until eight months or so before I was instructed, Irina, an Eastern European immigrant moved in.  Her English was pretty poor and she did not know anybody locally so Bob and his wife took her under their wing.  They did all they could to help her.  Michael they did not particularly like, thinking him a bit of an oddball, but he had been staying in the flat for a number of years by now and they had never had any trouble from him.  He always paid his rent on time, was quiet and was never a disturbance.  Odd, but a model tenant.

Irina tried to make friends with him but unfortunately, on one occasion, Michael misunderstood her overtures.  It frightened Irina and she ran downstairs to see Bob and his wife, in tears.  After that, whenever she met Michael, despite the fact that he did not do anything or in any way try to harm or frighten her (something which she later admitted to the police), she became upset and relied more and more upon Bob and his wife.

This went on for a little while and Bob and his wife became increasingly worried for their young protégé.  One evening, Irina was particularly upset and Bob and decided that that young whippersnapper, Michael, had to go.  His presence was upsetting his little family.

The next day, he took the AST to the firm of solicitors which had drafted the document to obtain possession.  Unfortunately, the solicitor who had acted was newly qualified so was not aware of the requirements of a s20 Notice, Michael’s AST having been entered into before 1st October 1996.  The possession claim failed as she had not attached a copy of the s20 Notice.

Bob came to me at that stage as he could not understand how they had lost and wanted to know if he had a negligent tenancy agreement claim against the firm of solicitors, who he felt should pay his legal costs for the wasted application.  I looked at it and realised why the claim had been thrown out.  I asked Bob for a copy of the s20 Notice that had been served.  He didn’t know what I was talking about so I told him what a section 20 Notice was.

A few days later, a s20 Notice arrived through the post.  Looking at it though, it was dated after the AST had been entered into: it was therefore invalid.  Michael did not have an AST, he had an Assured Tenancy and as by Bob’s own admission, he was a model tenant, it would be almost impossible to get rid of him.  I called Bob up and told him the bad news.  He told me he would look through his documents again.

A couple of days later, I got another s20 Notice through the post.  It was identical to the first one – even the signatures – but it looked like Bob had been playing with the tippex.  The new date and the missing dots of the line underneath gave it away!  Bob denied it at first but ultimately, he agreed that the notice could not be relied upon.

In desperation, we called for the original solicitor’s file to see if the notice was in there.  It wasn’t, but the brilliant thing about it was that there was no evidence that one had ever been drafted or sent to Michael or even advice to Bob that one had to be served.  Nothing.  Nada.

Bob was ‘lucky’.  We could now sue the solicitors for the negligent tenancy agreement and recover compensation for Bob’s losses.  As I said, Michael had been a model tenant so we could not get him out for breaching his tenancy agreement.  In the end, Bob had to purchase Michael’s security of tenure.  Michael therefore got a nice lump sum to go and move elsewhere and Bob was compensated by his solicitors for all his losses.

Once the negligence settlement was reached, I got chatting with the litigation solicitor on the other side.  It seemed that Bob had originally instructed his conveyancing solicitor to do the AST.  The conveyancer did not have any experience in Landlord and Tenant law but thought “how hard can it be?”  Turns out, a lot harder and a lot more expensive than he had anticipated.  The moral is very clearly, “don’t dabble in things you don’t understand!”

But that is not the end of the story. Bob and his wife had gone through all this to try and help their young friend. Ironically though, after it was all over, Irina decided Stockport was not for her and returned home.  I believe Bob and his wife had also had enough so sold the house and bought a bungalow close to their daughter.

For expert guidance on negligent tenancy agreement claims call our free helpline on 0333 888 0403 or email us at [email protected]