When we are asked, ‘Can I sue a solicitor for negligence?’ there are 5 important questions that need to be considered:
1. Has the solicitor been negligent?
2. Have you suffered financial loss?
3. Have you mitigated your loss?
4. Is the claim within the time limits?
5. Is it worth pursuing?
We will look at all these points below.
Has the solicitor been negligent?
This is the first and most obvious question. To sue a solicitor, you have to show that they owed you a duty of care and then acted in breach of that duty.
It will be evident in most instances whether or not a solicitor owes you a duty of care, but it isn’t always straightforward. For instance, if the solicitor was acting for someone else or the work was done free of charge no then legal duty of care to you may arise.
A solicitor’s breach of their duty of care is what most people mean when they talk about ‘negligence’. The test to determine whether there has been a breach of the duty of care is simple: has the conduct of the solicitor fallen below the standard to be expected from a reasonably competent solicitor? This question needs to be carefully considered. Just because you lost your case doesn’t mean your solicitor was wrong in his advice. Or if you didn’t get the outcome you had hoped for or the amount you were seeking, then it doesn’t necessarily follow that your solicitor was negligent. There is a long running joke: put four lawyers in a room and you’ll get five different opinions!
Have you suffered financial loss?
This is the part that most people forget. The solicitor may have made a mistake, but unless that error has actually caused you financial loss, you won’t have a claim. And it must be direct financial loss. If there has been an intervening event that has caused the loss or the loss would have been suffered even if the solicitor had not breached their duty of care, then the claim is likely to fail.
Have you mitigated your loss?
All claimants have a duty to take reasonable steps to ‘mitigate’ their loss. By this, we mean taking reasonable action to minimise the financial impact of the solicitors negligence. But what is a reasonable course of action? What if, to mitigate, it is going to cost a lot of money or take too much time? And how do you know that what you have done is ‘reasonable’?
The costs of attempting to mitigate the loss are recoverable from the negligent solicitor, even if the attempt at mitigation ultimately fails. But if your chosen course is considered to be unreasonable, you won’t be able to recover those costs. You therefore need to choose your course wisely.
As for what is considered reasonable, the Courts have said that if it would be too costly or complicated to bring mitigating action, then you do not have to take that course of action just to protect the solicitor from the consequences of his own carelessness. But if there is a reasonable course of action, then if you don’t take it your claim will be reduced. Determining what is reasonable or unreasonable will differ from case to case.
It is a thin line you have to tread. Be careful when considering what action you think can be taken either by you (or even the negligent solicitor) to rectify the matter. If it can be done reasonably, then you should follow that route as far as possible.
Is the claim within the time limits?
If you are going to issue court proceedings, you need to make sure you do so in time. Failure to comply with the Limitation Act 1980 means your case will be statute barred and you will not be able to recover any compensation.
Put simply, you need to bring a solicitors negligence claim within 6 years of the negligent act. Usually you can identify fairly easily when the negligence occurred. It might be the date of a report, a key date that has been missed, a failed completion etc.
But what if you were unaware there has been an error until after the six years? Not all mistakes are immediately obvious. Some only come to light much later. In these situations you can rely on s14A Limitation Act. This is known colloquially as the “date of knowledge” limitation or DOK. With DOK claims, you have three years from the date you ought reasonably have been aware of the error to bring a claim. Whilst sometimes this may be fairly simple to identify, in others you can easily fall foul of the “reasonable” part. Take for example the situation where cracks are observed in a concrete base: do you use the date that you noticed the cracks or the date that your expert tells you the builder negligently poured the concrete?
Is it worth pursuing?
A court judgment is only worth the piece of paper it is written on unless the debtor is good for the money. Solicitors are obliged to have Professional Indemnity Insurance in place against the possibility of a negligence claim being brought against them, but this does not necessarily mean that the insurance company has the money (in recent years, a major PII firm was declared insolvent and unable to satisfy any claims) or that the solicitor even reports the matter to the insurers.
You also need to consider the overall value of your claim. If your claim is worth less than £10,000, it will fall into the Small Claims Court where, regardless of whether you win or lose, you will have to bear your own legal costs. If you choose to instruct a solicitor, the costs of doing so will invariably exceed the value of the claim itself. It is only if the claim exceeds the Small Claims Court limit that you are entitled to recover some of your legal costs if you are successful.
This segues neatly into the next point: if your claim is not in the Small Claims Court, you have to face the possibility that if you lose your claim, you may be responsible for the other side’s legal costs. Are you sure therefore that your claim is going to stand up to scrutiny? Do you have insurance to protect you against such a claim?
How we can help you sue a solicitor for negligence
If having read this brief article you feel you have a case where you can sue a solicitor for negligence and you would like specialist assistance then we will be happy to help. We deal with claims against solicitors throughout England and Wales and are experienced in handing a broad range of cases, from rights of way errors to claims being struck out, from conveyancing mistakes to cyber fraud.
We will assess your claim free of charge. All we will need from you is some basic information about your case, particularly in relation to the 5 questions above. Provided there are sufficient merits in the case and the value of the claim exceeds the Small Claims Court limit, we would be happy to consider assisting on a no-win no-fee basis. We may also be able to offer you insurance against the risk of a costs order being made against you.
If this is of interest, then please contact us on 0808 139 1595 or email us at [email protected]