Construction projects gone wrong & the role of Project Managers

Professional Negligence solicitor, Emma Slade, looks at construction projects gone wrong & the role of Project Managers

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

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

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

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

Contruction projects gone wrong and negligence cases involving Project Managers can include the following:

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

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

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

For guidance on construction projects gone wrong or negligence claims involving a Project Manager call our free legal helpline on 0808 139 1595 or email details of your case to us at [email protected]

No Win, No Fee surveyor claim

Case study of a successful No Win, No Fee surveyor claim

We specialise in No Win, No Fee surveyor claims. Call us for a free case assessment on 0808 139 1595 or send brief details of your case to us at [email protected]

Our client appointed a surveyor to carry out a full structural survey of a property they wished to purchase. The client happened to be present when the survey was carried out and was told that asbestos might be present in the artexing. However this warning was not mentioned in the written report. The client tried to follow it up with the surveyor, but their emails went unanswered and their telephone number was blocked.

After moving in, the client had new central heating installed. When plumbers entered the floor void they found large piles of asbestos. An asbestos report was immediately obtained and this found evidence of asbestos in:

  • the fireplace;
  • the kitchen cupboards;
  • lagging to pipework under the ground floor; 
  • lagging to pipework under the first floor; and
  • lagging in the attic void.

We agreed to take on the No Win, No Fee surveyor claim. But when we presented the claim to the surveyor he argued that structural surveys do not need to cover asbestos and that certain areas of the property where unreachable. This was despite the fact that he had mentioned the problem to our client himself at the inspection. The surveyor also tried to argue that it was our client’s fault for not following up on their ‘roadside’ conversation.

However, we countered that the RICS’s definition of a structural survey states that asbestos should be mentioned. No competent surveyor would have failed to detect the presence of the asbestos in the property and had the survey report included reference to this then the client would have followed it up. There had obviously been either a mistake/oversight when the inspection was done, or the inspection was not done at all.

Our arguments succeeded and the claim was settled out of court with our client receiving compensation.

If you are looking for a solicitor who is experienced in surveyor claims to handle your No Win, No Fee case call us for a free case assessment or send details to us by email and we will get straight back to you.

Homebuyers survey missed asbestos

Case study of a successful compensation claim made because a Homebuyers survey missed asbestos

Our client instructed a surveyor to carry out a Homebuyers survey on a property he wished to purchase.  The surveyor carried out an inspection and submitted his Homebuyers survey report. It made reference to Artex on the ceilings and the presence of plasterboard, but the report gave no indication that they posed a problem. Nor was any recommendation made for further investigations to be carried out at the property. Accordingly our client proceeded with his purchase.

Having moved in he commenced some building works. This led him to discover that the walls were in fact made of asbestos cement and that many of the rooms in the house had asbestos both in the ceilings and in the walls.  By the time this was discovered the asbestos had been disturbed. As a result our client and his family had to vacate the premises immediately.

We agreed to pursue a compensation claim on a No Win, No Fee basis based on the allegation that the Homebuyers survey missed asbestos.

The surveyor argued that by referencing the possibility of asbestos in his report this was sufficient warning of the existence of asbestos in the property. Furthermore, he said that he could not have ascertained whether the walls contained asbestos of not.

This defence was rejected by us. Even the most superficial inspection of the walls by a competant surveyor would have given an indication of their likely composition. Furthermore RICS guidelines are specific in that a surveyor must positively identify the risk of asbestos and recommend that it be investigated by an asbestos specialist if the surveyor is not qualified to investigate it themselves. 

The case ultimately settled out of court with out client receiving a satisfactory level of compensation for the losses suffered by him.

If your survey missed asbestos and you are looking for experienced professional negligence solicitors to make a surveyor’s negligence claim on a No Win, No Fee basis then call our free legal helpline for a case assessment on 0808 139 1595 or send brief details of your case to us at [email protected] and we will get straight back to you with our recommendations.

 

 

 

Compensation claim for a bad survey

Case study of an ongoing claim for compensation for a bad survey

We were recently approached by a gentleman who had purchased a property which turned out to be defective. He wanted to know if he was entitled to compensation for a bad survey.

He told us that a valuation had been required by his mortgage company prior to him purchasing the property purchase. A surveyor was accordingly instructed by the building society, but the surveyor’s fee was paid by the client.  No significant defects were noted in the surveyor’s report so the client felt happy proceeding with the purchase.

Shortly after moving in however, he noticed significant cracking. On investigation it was established that the bungalow he had boiught was constructed on a raft design, but due to subsidence the raft had snapped in two, splitting the bungalow down the middle and tearing it apart. 

Obviously our client was devastated and wanted to know why this defect had not been picked up by the surveyor.

When he looked into it further he discovered that there were a number of indicators that should have been spotted by the surveyor. when he carried out his inspection. If the surveyor had noticed these then the serious defect would have come to light. The telltale signs included cracking, sloping floors and doorways and evidence of previous subsidence investigations.

We agreed to pursue his compensation claim for a bad survey and work on a No Win, No Fee basis.

The claim has now been presented to the surveyor who has denied that he is at fault.  He claims that his obligation was purely limited to carrying out a valuation of the property. However both the RICS guidance and the original instructions by the building society specifically stated that he should review anything which would affect the valuation, including subsidence. Needless to say we have rejected the surveyor’s arguments and the case continues.

If you have had a bad survey and are looking for experienced surveyor negligence solicitors who operate on a No Win, No Fee basis then call our Helpline for a no obligation, free case assessment. Call 0808 139 1595 or email us at [email protected]

 

 

How much compensation can I claim for professional negligence?

One of the most frequently asked questions we receive is, ‘How much compensation can I claim for professional negligence?’

In most instances it is pretty straightforward to identify the amount of compensation that is likely to be recovered in a successful professional negligence claim. The calculation is primarily based on the financial loss that has flowed directly from the actions of the wrongdoer. 

So, if for example a solicitor misses an important time limit and your case is struck out as a consequence, then you will claim compensation for the financial losses you have incurred as a direct result of the solicitor’s carelessness. This will usually be the value of the case that has been lost, together with any wasted legal costs.

But sometimes, the compensation people want to claim can give rise to more difficult legal issues. Under English law for instance, compensation cannot be claimed for loss that is deemed to be too ‘remote’ from the error or not ‘reasonably foreseeable’. 

If you are left wondering, ‘How much compensation can I claim for professional negligence?’, then you are very welcome to call our free legal helpline. Our specialist professional negligence solicitors will be happy to give you guidance on the compensation that can be claimed in a particular scenario. While it is not always possible to identify a precise figure right at the outset, it is usually possible to establish the basic legal principles that will apply and use them to offer an informed estimation of what the compensation is likely to be.

The principles of ‘remoteness’ and ‘reasonable foreseeability’ can give rise to very complex legal disputes.  It can be difficult for someone who is not legally trained to appreciate the nuances. Indeed, even some solicitors struggle with the concepts. In the remaining part of this article we will look in greater detail at the difficulties that can arise, with particular emphasis on a recent court decision that is set to impact directly when anyone asks, ‘How much compensation can I claim for professional negligence?’

At the heart of many disputes over the level of compensation that can be recovered is the “SAAMCO” principle, named after a 1996 case which said that:

“a person under a duty to take reasonable care to provide information on which someone else will decide upon a course of action is, if negligent, not generally regarded as responsible for all the consequences of that course of action. He is responsible only for the consequences of the information being wrong.”

The facts in the SAAMCO case were relatively simple. A valuer negligently overvalued a property that the bank was going to use as security. SAAMCO claimed the negative equity on the property that had occurred as a result of a market crash.  The logic of their argument was that if the valuer had not over-valued the property in the first place, SAAMCO would not have invested in the property so that when the market crashed it wouldn’t have made even greater losses.  The courts disagreed, stating that there was a difference between “advice” and “information”.  In this instance, the valuer had merely given information on the value of the property; what SAAMCO then did with it was up to them and the valuer could not be held responsible for the consequences of the information being wrong.

Confused? It isn’t easy to immediately grasp the nuances of the judgment, particularly as there wasn’t much guidance given about the differences between “advice” and “information”.  It has always been a cause of much legal argument as to whether something is or is not “information” or “advice”.  As the Supreme Court in another case stated:

information given by a professional man to his client is usually a specific form of advice, and most advice will involve conveying information.  Neither label really corresponds to the contents of the bottle”

It is welcome relief therefore that the Court of Appeal has now made its decision in Manchester Building Society -v- Grant Thornton UK LLP [2019] EWCA Civ 40.  It is quite similar to the facts of SAAMCO.  Based on negligent advice by Grant Thornton, MBS entered into a series of fixed rate mortgages hedged against long term swaps. But as a result of the most recent financial crash, MBM had to close out the swaps, incurring significant transaction fees and losses.  In the Judgment the Court sets out the SAAMCO principle:

  1. It is first necessary to consider whether it is an “advice” case or an “information” case. This is a necessary first step because the scope of the duty, and therefore the measure of liability, is different in the two cases.
  2. It will be an “advice” case if it can be shown that it has been “left to the adviser to consider what matters should be taken into account in deciding whether to enter into the transaction”, that “his duty is to consider all relevant matters and not only specific matters in the decision” and that he is “responsible for guiding the whole decision making process”.
  3. If it is an “advice” case, then the negligent adviser will have assumed responsibility for the decision to enter the transaction and will be responsible for all the foreseeable financial consequences of entering into the transaction.
  4. If it is not an “advice” case, then it is an “information” case and responsibility will not have been assumed for the decision to enter the transaction.
  5. If it is an “information” case, the negligent adviser/information provider will only be responsible for the foreseeable financial consequences of the advice and/or information being wrong.
  6. This involves a consideration of what losses would have been suffered if the advice and/or information had been correct. It is only losses which would not have been suffered in such circumstances that are recoverable.

This clarification is going to be of immense assistance in determining whether or not a professional was providing advice and therefore how much compensation can be claimed against the likes of solicitors advising in commercial transactions, auditors and accountants.

So if you want to know, ‘How much compensation can I claim for professional negligence?’, then give us a call on 0808 139 1595 or email brief details of your case to us at [email protected] and we will provide a free initial assessment of the value of your case and the availability of no win, no fee funding.

 

Is tax payable on compensation?

Is tax payable on compensation? Emma Slade, a specialist professional negligence solicitor, considers this crucial question in relation to CGT

“In this world nothing can be said to be certain, except death and taxes.”

Benjamin Franklin.

Sadly, Franklin had the right of it and as much as we try to avoid it, both are inevitable.  There are so many different forms of tax but this article is limited to a brief consideration of the effect of Capital Gains Tax (CGT) on damages and compensation received as a result of a civil claim.

Let us start from the beginning: what is CGT?  In many respects, it is an extra form of Income Tax.  Just as you pay income tax on your earnings, so you pay CGT on any gains or profit that you may make on the disposal of an asset.  Probably the simplest example is if you buy a property for £100,000 to rent out and a few years later sell it for £150,000, you will have to pay tax on that £50,000 gain.

You also have to apply that concept to compensation.  Is compensation income?  Or is it an asset where there has been a gain?  Do you pay income tax or Capital Gains Tax?

It all comes down to whether or not the compensation arose from an asset or not.  There was a bit of a hiccup in 1985 in the Zim Properties Ltd -v- Proctor case where the court was asked to determine whether the right to sue was an asset for CGT purposes. Alarmingly, it concluded that it was.  The court took the view that damages are awarded in exchange for compensation, so the right to sue was a valuable asset upon which CGT should be charged.

This brought with it inordinate problems.  If in a professional negligence scenario, for example, your surveyor overvalues your house, a civil claim for compensation is supposed to put you back into the position as if the professional negligence had not occurred. However, under the Zim principles the Claimant would have to pay tax on that sum.  It didn’t seem fair, so fortunately, HMRC introduced ESC D33 which in effect overruled Zim.  It stated that only where there is an actual underlying asset, would CGT apply. If there is no underlying asset, no CGT would be payable.

This position was changed in 2014.  With effect from 27th January 2014, compensation that did not have an underlying asset would be exempt from CGT, but only for the first £500,000.  For amounts of compensation above this amount to be exempt, a request has to be made in writing to HMRC.

However, before the panic buttons get hit, there are many exceptions to this rule, of which the following are but a few:

  1. Damages for physical injury, distress, embarrassment, loss of reputation or dignity, unfair or unlawful discrimination and for libel or slander are all exempt;
  2. Loss of earnings are exempt, but the damages are reduced by the amount of tax that would have been payable had the Claimant been employed;
  3. Any damages awarded to an individual by reason of his trade or employment are also exempt. In other words, if you bring a claim in the Employment Tribunal or settle an employment claim via a Compromise Agreement, then the compensation aspect will be tax free; and
  4. Compensation for professional negligence claims in relation to an action in respect of a wrong or an injury is exempt.

There are two important payments though that are not exempt: taxable receipts and gains on underlying assets.

The issue of taxable receipts was considered in the case of Deeny -v- Gooda Walker.  This case arose out the Lloyd’s Names cases where the courts were asked to consider whether the damages arose out of the negligent advice given by the underwriters (professional negligence – ergo tax exempt) or whether it would be considered loss of profits.  One of the arguments used was based on the judgment in London and Thames Haven Oil Wharves Ltd -v- Attwooll:

Where, pursuant to a legal right, a trader receives from another person compensation for the trader’s failure to receive a sum of money which, if it had been received, would have been credited to the amount of profits (if any) arising in any year from the trade carried on by him at the time when the compensation is so received, the compensation is to be treated for income tax purposes in the same way as that sum of money would have been treated if it had been received, instead of the compensation.” [my emphasis]

In short, if you are claiming loss of profits, that part of your damages claim is going to be subject to Income Tax and so rather than receiving the damages net of tax like you do with loss of earnings (see 2 above), the compensation will have to be “grossed up”, ie paid in full so you can discharge your own tax liability.  It is known as the ‘reverse-Gourley principle’.

In addition, if there is an underlying asset to your claim whose disposal or deemed disposal gives rise to the damages payment, the compensation is chargeable for CGT purposes.  The only example I can find to illustrate this is that suggested by John Walters in his paper Taxation of Damages, Costs and Interest:

“For example, a property in the case of an action against an estate agent for negligent advice on sale – the compensation can be treated as proceeds on a disposal, or more likely a part disposal, of the underlying asset – i.e. the property, with the allocation of base cost and availability of reliefs and exemptions appropriate to such a disposal or part disposal.”

Personally, I do not agree that is a good example as I would suggest that “negligent advice” falls under the professional negligence exemption.  A better example might be where you are suing for, say, a loss of bargain on the purchase of an investment property.  If you buy an investment property for £150,000 and sell it the following day for £200,000, you would be paying CGT on that £50,000 gain.  It seems logical therefore that if you are suing a professional for their failure to expedite that purchase and the purchase fell through, you could expect to include in the claim, the loss of that £50,000 gain.  If that is the case, I would fully expect the HMRC to be asking for its portion of that profit in which case, any settlement made with the Defendant should be grossed up to include that liability.

As I said at the beginning of this article, this is only a very brief consideration of the question, ‘is tax payable on compensation?’ – the edited highlights really – for like all tax matters, it is never straightforward and almost always fact dependent.  Even in the Deeny case, there was dissent among the Law Lords about what constituted an income receipt as opposed to a capital receipt.  In any event, I would strongly recommend that if there is any doubt, speak to a tax adviser.

We are specialist professional negligence solicitors, representing claimants nationwide in cases of professional negligence against solicitors, accountants, surveyors and other professionals. We offer a free case assessment service. Simply submit brief details by email to [email protected] or call us on 0808 139 1606.

 

Can I sue my divorce solicitor?

Our professional negligence team are often asked, ‘can I sue my divorce solicitor?’ The simple answer is that a claim can be brought against your divorce solicitor if they have made a fundamental error in the way they have handled your case, resulting in you suffering direct financial loss. In this article we look at some of the specific issues that arise when a negligence claim is made against a divorce solicitor.

For a free assessment of your case call our legal helpline on 0808 139 1595 or send brief details of your divorce solicitors negligence claim to us at [email protected]

making a claim against a divorce solicitor

Divorce is unpleasant.  Even in amicable divorces there are bound to be arguments as the parties try to reach agreement on dividing the assets, whilst in the most bitter of divorces, each party is strongly motivated to ‘beat’ their partner, thereby fueling the hostility.  Invariably, the parties don’t get everything they want simply because a compromise has to be reached. But sometimes, just sometimes, it is the divorce solicitor who gets it wrong. 

It needs to be made clear at the outset that simply because someone does not get all that they wanted, it does not mean that the solicitor has been negligent.  For you to sue a divorce solicitor they must have acted in a way that falls below the expected professional standards. Furthermore, their error must have caused you a financial loss.

Divorce negligence case study

Let us give an example.  In a case we recently dealt with, the divorce solicitor failed to get a profesional valuation of the husband’s pension.  He worked out what he thought the value of the pension pot was and calculated what the wife would receive.  A settlement was reached based on his assumptions.  However his figures were wrong. His client received less than half of what the solicitor believed she would get. The solicitor’s mistake resulted in his client suffering serious financial loss and accordingly a negligence claim was made for compensation.

Mistakes can happen 

Against the background of parties fighting over the same assets with escalating legal costs eating in to those assets, pressure is placed on divorce solicitors to keep the costs down. Shortcuts are often taken but this can result in things going terribly wrong once the dust settles.

A divorce solicitor also needs to keep a level head amid all the emotion of a relationship breakdown. It is imperitive that they retain sight of the bigger picture. Failure to do so can lead to errors being made.

Even if a fair settlement has been reached, there is still room for mistakes to arise. For example a negligently drafted settlement agreement can lead to financial loss at a much later stage.

So, can I sue my divorce solicitor?

Having started a new life following a divorce, it will take a brave soul to want to get embroiled in a fresh legal dispute. However, if your finances have suffered as a result of a solicitor’s mistake then you may have no option.

We deal with cases on a no win, no fee basis where the value of the claim exceeds £10,000 and are always happy to provide a free preliminary case assessment. If you tell us what your divorce solicitor has done wrong and how much financial loss has been suffered as a result of their mistake then we will review whether it is a case we can help you with.

We specialise in claims against solicitors. Call us on 0808 139 1595 or email us at [email protected] for a free initial assessment of your case.

 

Claiming compensation for stress and inconvenience

Is it worth all the stress? Claiming compensation for stress and inconvenience in a professional negligence case

Ask any professional negligence lawyer what their FAQs are and undoubtedly queries about stress and inconvenience will be high on that list. But under English law, can someone actually recover compensation for stress caused by the conduct of a negligent professional?

Victims of professional negligence are frequently surprised to learn that legal claims for compensation for stress and inconvenience stemming from negligence are uncommon. The reason for this is that the courts have been reluctant to allow such claims for public policy reasons.

In one famous ruling a judge stated:

“A contract-breaker is not in general liable for any distress, frustration, anxiety, displeasure, vexation, tension or aggravation which his breach of contract may cause to the innocent party. This rule is not, I think, founded on the assumption that such reactions are not foreseeable, which they surely are or may be, but on considerations of policy.”

However, the bar to claims for stress and inconvenience is not absolute. If the main reason to use the services of the professional was to obtain ‘pleasure, relaxation, peace of mind or freedom from molestation’ then compensation can be awarded.

This concept of ‘pleasure, relaxation, peace of mind or freedom from molestation’ was reinforced in the case of Farley v Skinner. In this case the claimant had instructed a surveyor to complete a report on the property he was looking to purchase. The claimant put in an extra request for the surveyor to report on the effect of aircraft noise from the nearby airport (London Heathrow). The surveyor reported that while he could not guarantee zero effect, the property was not subject to aircraft disturbance frequently and was not on any flight path. However, he did not identify that the property was only a few kilometres from a stacking beacon and that at busy times planes waiting to land circled almost directly above the claimant’s home. The Judge ruled that in that case the claim was exceptional and that compensation for stress and inconvenience could be awarded..

In a recent case Shaw v Leigh Day, the question of stress and inconvenience was considered in relation to a solicitor’s negligence case. In this matter the solicitor had been instructed to represent the clients at an inquest into a relative’s death. The Court ruled that the level of emotion involved was high and unique making this different from other legal processes. If a solicitor is retained to put evidence before the coroner and jury but fails to carry out their job with sufficient diligence, the client would never receive the comfort they required. So again this case was deemed as falling within the exceptional circumstances range, where compensation could be awarded.

In general therefore while claims for stress and inconvenience are not common, they can can be pursued in limited circumstances. In most cases such claims are made in conjunction with claims for more conventional financial loss arising from the negligence, so they form one element of a larger claim.

If you are interested in claiming compensation for stress and inconvenience in a professional negligence case and believe that it falls within the exceptional circumstances highlighted then give us a call on 0808 139 1595 or email us at [email protected]

Can I sue my injury solicitor?

Our professional negligence team are regularly asked, ‘Can I sue my injury solicitor?’ In this article Emma Slade looks at one particularly common cause for complaint; the injury settlement that is far too low.

For a free case assessment call our legal helpline on 0808 139 1595 or send brief details of your injury solicitor negligence claim to us at [email protected]

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 0808 139 1595.

Can I sue a solicitor for negligence?

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]

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