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A couple of articles have recently come to my attention in the Law Society Gazette to do with ‘cannibalism’, a phrase coined by a defendant lawyer to describe a new form of litigation: claimant lawyers suing claimant lawyers.
It seems to have started off with an apparently new raft of claims where solicitors are being sued for under-settling personal injury cases. Personally, I cannot say that it is a “new” influx of cases - I have been dealing with under-settled claims for quite a while now – but I suspect that, with the new regime of fixed fees in PI claims, the number of negligent injury settlements is likely to increase. Whilst it may seem like a good idea to keep a cap on legal costs, the fact that they are so low, with correspondingly tight profit margins, it is easy to see how corners can be cut leading to claims being under-settled. However, whatever the pressures the lawyers are working under this can never be acceptable practice and practitioners have to appreciate that professional negligence claims will surely follow.
But it seems that the new breed of cannibalism isn’t stopping there. A large national law firm has recently run an article stating that they are now going to be actively pursuing professional negligence claims against solicitors who fail to give proper costs advice to their client, both about methods of funding and protective insurance policies.
Again, this is not new. The Solicitors Code of Conduct makes it very clear that at the outset of a retainer, a solicitor must discuss with a client the best way to fund a case and how to protect themselves against an adverse costs order where they have to pay the other side’s costs. Although a solicitor is not obliged to take on a case on a no-win, no-fee basis, they do have an obligation to advise the client that other firm’s may be prepared to offer this in the form of a conditional fee agreement. Importantly, the solicitor should be advising about insurance, both insurance the client may already have (legal expenses insurance) or insurance that can be purchased specifically for the claim (‘after the event’ insurance). If the client subsequently loses their case and is faced with a huge costs bill, there could be a claim against their solicitor for their failure to give this advice. Indeed, I have a case on my desk at this very moment where the solicitors failed to advise about conditional fee agreements, failed to ask if the client had any insurance (and when it transpired they did, failed to tell the client that they did not have to change solicitors like the insurers demanded), failed to take out ATE insurance until two days before the trial and failed to make sure the cover was sufficient.