We take a look at a very commonly asked question, ‘Can I sue a solicitor for breach of duty of care?’

We specialise in professional negligence claims against solicitors nationwide. So, for further guidance on ‘Can I sue a solicitor for breach of duty of care?’ contact our dedicated Helpline for a free case assessment and details of No Win, No Fee funding.

Does a solicitor owe their client a duty of care?

Yes, a solicitor will owe their client a duty of care. However, a solicitor will only rarely owe a third party who isn’t their client a duty of care. An example of when a duty of care can be owed by a solicitor to a non-client would be a beneficiary under a Will that the solicitor has prepared.

What is a ‘Breach of Duty’?

A breach of duty occurs when someone who owes you a legal duty to take care, such as the duty owed by a solicitor to their client, fails to do something that they should reasonably have been expected to do. It is therefore simply a failure to take reasonable care in all the circumstances.

A breach of duty by a solicitor is often simply referred to as ‘negligence’.

Common breaches of duty by solicitors include, missing a key deadline, allowing a case to be struck out, failing to protect a client’s legal interests, making an error in the drafting of a legal document, and giving a client incorrect legal advice. However, in practice the number of potential breaches of duty is almost endless, and you will find lots of case studies on this website about the claims we have successfully made.

Can I sue a solicitor for breach of duty of care?

Yes, you can. To bring a successful professional negligence claim against a solicitor you have to not only establish that a duty of care was owed and breached, but also:

• that you have suffered a loss as a result of the breach; and
• that the breach caused the damage.

How we can help you

If you would like further guidance on, ‘Can I sue a solicitor for breach of duty of care?’ then contact our free legal helpline for a review of your case.

If you have a solicitors negligence duty of care claim, and require expert guidance on professional negligence against solicitors we will be happy to provide a free case assessment and details of No Win, No Fee funding. To speak to a specialist solicitor call 0333 888 0403, or email [email protected].

Making an Asset Protection Trust claim

Negligence solicitor, Emma Slade, looks at making an Asset Protection Trust claim.

‘Asset Protection Trusts’ have increased in popularity in recent years. People are attracted to these trusts as a means of preventing assets from being used to fund care fees, or limiting liability for inheritance tax.

It normally involves the individual transferring their home, saving or investments into a trust. The principle behind the trust is that if the asset is no longer owed by the individual then it cannot be taken into consideration when, for instance, determining a liability to pay care fees at some future date.

However, while this may sound like a good idea, there are practical problems associated with Asset Protection Trusts.

For instance, local authorities might challenge the legitimacy of the trust and charge care fees in any event on the basis that the creation of the Asset Protection Trust amounted to a deliberate deprivation of capital.

The tax position is also complicated. Transferring assets into trust will be a ‘lifetime chargeable transfer’ for inheritance tax purposes, as well as a chargeable disposal for capital gains tax. This can give rise to a tax bill, both now and in the future.

Furthermore, if the individual continues to live in a property after it was ‘transferred’ then unless they pay a full market rent for the privilege, then the asset will be regarded as remaining in their estate for inheritance tax purposes. Furthermore, their  estate will lose the right to claim the valuable residential nil rate band.

There is also the issue of control. If a genuine attempt is made to transfer assets to a trust over which the individual has absolutely no control, then they will lose any right to have a say about how those assets are dealt with. This could result in them losing their home or savings if the recipient chooses not to honour any agreement with them. They could also lose out if the recipient gets divorced, becomes bankrupt or passes away. There might also be further adverse tax consequences to deal with.

Where someone suffers financial loss as a result of poor advice then they may wish to consider taking legal action. We can assist with an Asset Protection Trust claim where there is clear and verifiable financial loss exceeding £25,000.

Subject to the value of the claim we can often work on a no win, no fee basis.

So if you have suffered losses in excess of £25,000 and you would like to find out where you stand on making an Asset Protection Trust claim, and how your case could be funded, contact our free legal helpline.

Submit details of your case by email to [email protected] or call us on 0333 888 0403.

 

 

 

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Making an insolvency negligence claim

Specialist professional negligence solicitor, Emma Slade, takes a brief look at insolvency negligence, and claims against insolvency practitioners and insolvency lawyers.

Insolvency practitioners and other professionals involved in insolvency owe a legal duty of care in relation to their actions and advice and are required to act with reasonable skill and care.

For instance, they have an obligation to take reasonable steps to obtain the best price for assets that need to be realised. Other examples include errors that are made in relation to the distribution of assets, mistakes in preparing financial status reports, and failure to pursue legal claims.

When the duty of care is breached then the party suffering loss is entitled to bring a claim for compensation. However, the loss claimed must clearly flow directly from the insolvency practitioner’s breach, and not be due to some other cause outside the control of the professional.

It is often prudent to obtain an independent report from an expert witness on the conduct of the insolvency practitioner against whom the claim is being made.

Insolvency negligence claims should be commenced promptly. The primary limitation period is six years from when the cause of action accrued, or three years from the claimant’s date of knowledge. Identifying the limitation date isn’t always straightforward, so specialist legal advice should therefore be taken from independent lawyers.

We deal with insolvency negligence claims throughout the whole of England and Wales, both corporate and individual, where the financial loss arising from a breach of duty amounts to a sum that is greater than £25,000.

We will be happy to provide you with an assessment of your case free of charge, and to consider its suitability for no win, no fee funding. Call us on 0333 888 0403 or email details of your claim to us at [email protected]

 

Claiming compensation for professional negligence, rather than abatement

Solicitor Emma Slade looks at the legal distinction between claiming compensation for professional negligence and seeking abatement.

So, you have contracted with a builder to construct your much-desired extension but by the time they have finished the work, the building is dreadful. Invariably this scenario ends in a dispute between you and the builder over his charges. But what about the architect?  If the builder has built the extension according to the architect’s plans, should you still pay the architect’s bill, or can you get a reduction in those fees?  Can the fees be – and I use the technical legal term – ‘abated’?  After all, you will argue that the architect has not earned those fees.

You will undoubtedly be very surprised to hear me say that no, you may not be entitled to a reduction in those fees.

Generally, abatement is not a valid defence to a claim for payment for professional services under contract. Provided the services have been substantially performed, the fees cannot be reduced as there will still have been some merit in those services.  There may have been delay and disruption in provision of those services but that does not entitle you to claim a rebate.  This can cause a lot of surprise to some clients when explained.

But there are exceptions to the rule.

Firstly, you will note I have said that the fees cannot be abated if there has been some merit in those services.  But what if the service has been utterly worthless?  In those circumstances, there will have been a fundamental lack of consideration in the contract, so those parts of the fees relating to services that are utterly worthless can indeed be removed.

Secondly, abatement may not be the proper argument to be used – but claiming compensation for professional negligence might be!

In claims for professional negligence, if it can be shown that a similarly qualified and experienced professional would not have acted in that way (breach of duty of care) and that as a result of the professional’s actions (or lack thereof), you have suffered a loss, then a better claim would be to seek, not a reduction of their fees, but recompense for that loss.

What do I mean?

Let us go back to the architect who prepared the drawings for your much-desired extension, which ended up looking no better than a chewed-up wreck.  Presumably, the first thing you would do is engage a new architect.  So you will incur those additional fees.  You may also incur other fees in trying to remedy the build, fees on top of that which you would have incurred had the work gone well.  Provided that the architect did indeed breach his duty of care to you, you would be able to claim the additional architect’s fees and all the remedial costs.  You would still be liable for the architect’s original fees but any spend over and above that which would have been incurred had the work been carried out correctly, could be claimed as part of a claim for compensation for professional negligence.

So ultimately, whilst you may not get an abatement on the fees for the services of a professional, you can claim for your losses.  It all comes down to how you present your claim: professional negligence, not abatement.

Emma Slade is a solicitor and partner in our professional negligence department who specialises in bringing negligence claims against professionals including solicitors and architects. We offer a free case assessment service for claims with a value of more than £25,0o0. Submit brief details by email to [email protected] or call us on 0333 888 0403.

 

Did you hear the one about the underpaid solicitor?

This sounds like the beginning of a very bad joke and whilst it is not a joke, it does have a very bad ending.

In a landlord & tenant claim, the Claimant had four months within which to make an application to the Court to implement a new lease.  The basis of the application isn’t really necessary for the terms of this article but the actions of the solicitors are.  Two days before the limitation period expired, the solicitors prepared the application and arranged for it to be personally delivered to the Court.  Unfortunately, there were some renovation works going on at the Court and the Court could not accept either the papers or the payment of the issue fee but agreed that if the papers were lodged in the court post box by 2pm, it would be accepted.

The Claimant’s solicitor agreed and left the papers at the Court with a covering letter which said:

“Please accept this letter as our authority for you to deduct the court fee of £308 using our account number …”

Unfortunately, only six months beforehand, the Court fee had increased to £332.  Because the solicitors had only authorised £308, the court could not issue the claim form and returned the papers to the solicitors.  By then, limitation had expired.

The solicitors made an immediate application to the Court for relief from sanction on the grounds of an “inadvertent clerical error”.  The claim was dismissed.  The judge who considered the matter felt that this was not a failure to comply with a rule or practice direction, thus the failure not to issue within time was not an error of the Court.  Specifically, he said:

“There has been no breach of any rule, practice direction or court order and the obstacle standing in the way of the claim is not any sanction imposed by the Court but the fact that the limitation period had expired by the time the Claim Form was issued.”

The solicitors appealed but the Court of Appeal recently concluded that the Recorder’s decision was correct.

This is such an obvious error and could give rise to a claim for professional negligence.  The test when it comes to a claim for professional negligence is the “Bolam test” which arose from a clinical negligence claim but has been extended to all professional negligence claims: what would a reasonably competent professional with similar qualifications and experience have done?  If a body of similarly qualified solicitors would have done the same thing, then in all likelihood, breach of duty of care would not be established but in the factual scenario thrown up by this particular case, I think it would be difficult to defend such a claim.  Whilst I do not know the ins and outs of what occurred at the time and why the solicitor did not check the amount of the fee, it would not be difficult to say that a solicitor who holds themselves as dealing with litigation and Court claims should reasonably be expected to know the value of the issue fee.

Emma Slade is a solicitor and partner in our professional negligence department who specialises in bringing negligence claims against professionals including solicitors and limitation error claims. We offer a free case assessment service. Submit brief details by email to [email protected] or call us on 0808 139 1595.

Expert witness negligence

Cases of expert witness negligence are becoming increasingly common since a change in the law in 2011.

Until 2011 expert witnesses could not be sued for professional negligence. This was because the courts had not wanted to stifle experts in saying what was needed to be said, for fear of a negligence claim being brought against them. However, the reasoning behind the decision to lift that immunity was simple: if the expert has not been negligent, then they should have no need to fear a claim.

In negligence claims against an expert witness it is usually the party instructing the expert who brings a claim. If the claimant loses a case a costs order is usually awarded against them. The claimant can, in turn, then bring a claim to recover those costs from the expert if the expert’s negligence caused the case to fail.

However, in certain situations the opponent can also make a claim against an incompetent expert. An example of this is the case of Mr Jamil. Mr Jamil was the expert for the claimant in a professional negligence case, but it became apparent very early on in the trial that he did not understand the basic tests to be applied to determine whether there had been a breach of duty in a negligence claim.  He later said that he had suffered a mental block—the interrogation by counsel reminding him of an interrogation he had undergone in Iraq.  The judge considered this excuse to be “palpable nonsense”, while the defendants said that his incompetence had started a lot earlier than the trial.  The claimant’s solicitor and barrister had also been concerned about his ability previously, but Mr Jamil insisted that he was suitable.

In the judgment the court acknowledged that “there are plenty of not very good experts around” but in this instance, the conduct of Mr Jamil was exceptional and caused the defendant to incur unnecessary costs.  As a result, the court ordered Mr Jamil to pay the defendant’s costs of over £88,000.

This decision highlights the fact that, in many instances, an expert’s involvement can be critical to a claim – a “make or break” – and the courts are prepared to accept this: firstly by lifting immunity; and now, making a wasted costs order against an expert.  There is also a hint in the judgment that the court could have ordered a fine against an expert “to mark the court’s displeasure at his conduct.”  Not in this instance though.

It is therefore important in any claim to:

• Ensure you get an expert where one is needed
• Make sure that s/he is suitably qualified
• Make sure they have sufficient experience

If there are any doubts about suitability or ability, even during a claim, the expert should be questioned.  Whilst in this instance, the court ordered the expert pay the costs direct to the defendant, that is “highly unusual” and invariably, it is a costs order against the party who instructed the expert, who must then seek to recover them from the expert in question.

It goes without saying of course, that just because you lose a claim, it does not mean that the expert has been negligent.  As the adage goes, put four lawyers (or experts) in a room and you will get five different opinions, all of which could be just as valid.  No: to bring a claim for negligence, you have to show that no reasonably competent or qualified expert could have reasonably held that particular view.

If you have suffered substantial financial loss as a result of expert witness negligence, call us now on 0333 888 0403 or email details of your claim to us at [email protected]

 

Disclosure of documents and ‘fishing expeditions’

A “PAD App” is an application to the court for pre-action disclosure of documents.  During court proceedings, the parties will have to disclose to each other any documents that they have pertaining to their case, whether it supports their case or the other side’s case.  The problem is though that to get to that stage, you have to issue a court claim and to avoid the claim being struck out before it gets to the disclosure stage, the claimant has to show that they have a reasonable claim.  But if they don’t have the evidence, they can’t get to that stage.  It’s a paradox.

PAD Apps were introduced to circumvent this problem and provided the applicant met the criteria as set out in CPR 31.16, you were in theory able to get the disclosure brought forward.

When PAD Applications were first introduced, they seemed to be a great step forward for litigators: here was a method by which you could seemingly force your opponent to provide documents before court proceedings began which could possibly help you establish your case and possibly foreshorten proceedings.  Yes, there were a few steps that you needed to overcome like showing that the applicant and respondent were likely to be party to subsequent proceedings, but it would overcome the difficulty that a lot of claimants seemed to face: knowing there was a case but not having the evidence to support it.  But whilst the facility is there, being successful in a PAD Application is becoming increasingly more difficult – with more costs orders being made against the losing party.

In one recent case Brown -v- JMW Solicitors LLP [2022] 2848 (SCCO) the court made it clear that they are not going to allow the system to be abused and let the claimant go on a hunt for evidence without substantiating why they felt there was a case.  Or in legal parlance, the Court was not going to let the claimant go on a “fishing expedition”.

In Brown, the Claimant had used the services of the defendant to bring a successful personal injury claim with the fees of that claim being funded under a no win, no fee agreement supported by ‘after the event’ insurance.  Once the claim was concluded, Brown instructed checkmylegalfees.com (CMLF), a costs recovery outfit which seeks to challenge legal fees in such claims, especially the £644 insurance premium Mr Brown had to pay in this instance.  CMLF claimed that the fee was “less than clear” and after the defendants refused to release a copy of the insurance policy itself, CMLF made a PAD App to get the policy released.  They seemed to be claiming that the fee was some sort of secret commission and, as there had been previous case law ordering a defendant firm to provide such information, CMLF felt justified in making the application.  Surprisingly, CMLF did not lodge any evidence of note in support of the claim including details of why they considered there had been any impropriety on the part of JMW Solicitors LLP.

Costs Judge Rowley was not impressed with the application.  Whilst he accepted that the Claimant was in a Catch-22 situation of requiring the information to substantiate their claim, he felt that their application was a “paradigm example of a fishing expedition”.  Specifically, he stated that:

“It is a basic tenet of litigation that he who asserts must prove. In the situation before me, the claimant’s position is that he does not even need to assert let alone prove commission may be in issue. He simply has to say that the premium is disputed without putting forward any grounds for doing so. Mr Dunne described the claimant as being trapped in a Catch-22 situation. He needed information from the defendant in order to be able to put forward his case: however the defendant refused to provide that information without the claimant’s case having been set out….”

The PAD disclosure of documents application therefore failed.

For those who follow costs law, it will be realised that this is the second setback for CMLF in as many weeks with the recent decision of Belsner v CAM Legal Services Ltd criticising, amongst other things, the firm’s business model.

Even so, Brown is not unique in its finding with other, similar applications being unsuccessful as the courts turn down such requests in obvious fishing expeditions.  In short, if you are going to make an application for disclosure of documents, think carefully about your suspicions and whether such an order is truly necessary.  It could backfire and you could be facing a costs order.

Who is classified as a professional in the context of a professional negligence claim?

We are specialist professional negligence claim solicitors. If you need initial guidance on making a claim then contact our national helpline for a free review and details of no win, no fee funding.Call 0333 888 0403 or email us at [email protected]

The first thing to consider when you are thinking about bringing a professional negligence claim is the definition of a ‘professional’.

Although there is no definitive definition of a ‘professional’, or a fixed list of ‘professions’,  there are some important points to bear in mind when bringing a professional negligence claim. These include:

• Whether the person was required to complete a professional qualification to do their job? A prime example here is a solicitor, who is required to go through multiple stages of learning to become a qualified, practicing solicitor.
• Does the person have insurance? It is good practice for professionals to have indemnity insurance since their positions come with high financial risk. If a surveyor is negligent, it could cost them tens of thousands of pounds in compensation, so, not only is it common practice for them to have insurance to cover these costs, many professional bodies make it a requirement for membership that PII is maintained.
• Are they regulated by a professional standards board? Again, using the solicitor example, all solicitors are regulated by the Solicitors Regulation Authority (SRA). These regulatory bodies will set standards for all professionals falling within their jurisdiction and non-compliance with those standards could be strong evidence of negligence.

The distinction between a professional person and someone who is not a professional is very important because professionals are held to a much higher legal standard, meaning any minor deviations from that standard could be deemed to be negligent if it can be shown that another reasonably prudent professional would not have acted in the same way. For non-professionals the bar is set much lower. The courts will not generally expect a non-professional to act the same way that a professional would in the same situation.

A list of the main types of professional negligence claim we deal with can be found here: https://www.sleeblackwell.co.uk/legal-services/professional-negligence.

Those who do not constitute professionals for our purposes are:

• Schools
• The police
• The courts
• The Crown Prosecution Service (CPS)
• Casinos (The duty of care owed by casinos is minimal. See https://www.sleeblackwell.co.uk/legal-articles/suffered-gambling-losses-asked-self-exclude for more information.)
• Builders and other tradesmen (plumbers, electricians, plasterers etc.)

Doctors and other medical practitioners are considered professionals, but legal claims against them are treated separately to other professionals, falling under the term ‘medical negligence’. We have a separate specialist team dealing with medical negligence cases https://www.sleeblackwell.co.uk/legal-services/medical-negligence-claims)

If you have a claim against someone who can be regarded as a professional and your financial losses exceed £10,000 then contact us about making a professional negligence claim on a no win, no fee basis. Call 0333 888 0403 or email details to us at [email protected]

Tax avoidance negligence: Can a tax avoidance advisor be liable to a third party?

For guidance on making a tax avoidance negligence claim contact our free legal helpline by phone or email. Call 0333 888 0403 or email details to [email protected]

Andrew Thornhill QC provided advice to three limited liability film distribution partnerships regarding tax relief.  As part of the marketing strategy, this advice was provided to a number of investors who then invested money into what they believed would be a tax relief scheme.  Unfortunately, the schemes were later shut down by HMRC who refused the tax relief sought, causing the investors “dire financial consequences”.  The investors sued Andrew Thornhill QC for negligence in McLean & Others -v- Thornhill .

Not unsurprisingly, the tax avoidance negligence claim was dismissed.

The main reason for it being dismissed is that Thornhill was providing advice to the film distribution partnerships, not the investors.  As such, he did not owe the investors a duty of care.  Whilst it was accepted that, being a leading tax QC in England & Wales, Thornhill’s advice would carry great weight, it was considered not to be reasonably foreseeable that potential investors would rely solely on his opinion.  Alongside the opinion, all investors were strongly advised to consult their own tax advisers and – importantly – on subscribing to the investments, were warranting that they had relied only on the advice of their own professional advisers.

A second argument raised by the investors was that no reasonably competent tax QC would have reached the conclusion Thornhill did.  Thornhill had stated that he had “no doubt” that the investment would generate profits in the early 2000s and, given his standing, seemed to be an “unequivocal endorsement” which was said to be “as effectively as good as an advance ruling from HMRC”.  Fortunately, the court disagreed with the claimants, concluding that there was a range of opinions that at tax QC could have:

“in cases concerned with tax avoidance schemes, that generally means identifying the basis of challenge made by the revenue and the arguments presented by them in support of that challenge.  That does not mean, however, that the reasonably competent tax QC is required to anticipate all possible approaches the revenue might take”.

This case is a useful reminder of the duty of care owed by one party to another and the duty that a tax advisor has to possible investors.  Having said that though, the stand out feature of the case is the advice that the investors should consult their own tax advisers, a point that the judge considered “critical”.  In addition, in this instance, all the proposed investors were seasoned investors and had some understanding of the investment scene.  Without the recommendation to seek their own advice and with less sophisticated investors, the outcome may have been different.

We specialise in tax avoidance negligence claims. Contact us for a free review of your case.

 

 

Claiming compensation for a contract error

To find out if you can claim compensation for a contract error call our legal helpline for a free case assessment and details of no win, no fee funding. Call 0333 888 0403 or email details to [email protected]

Are you interested in claiming compensation for a contract error? Contract errors are unfortunately very common and they account for more than a quarter of claims against solicitors in company and commercial law.

Contract drafting errors frequently arise as a result of changes to instructions prior to completion, a problem that can be exacerbated by poor record-keeping by the solicitor. Busy commercial solicitors can also find that their judgment and attention to detail slips when they are overstretched, stressed or fatigued. In some cases practitioners succumb to the temptation to cut corners, especially on ‘routine’ contracts, making errors as a direct result of their complacency.

To avoid claims for a contract error, lawyers are encouraged to establish the full facts of a transaction at the outset, carefully define the scope of the retainer with the client (agreeing what issues the solicitor is required to advise on), and then to regularly review progress of the transaction as it progresses Commercial lawyers should also apply their minds to potentially adverse scenarios that might put their client at risk. What if the other party becomes insolvent; or the property price falls (or rises); or the exchange rate changes during an international transaction?

IT can also be used to avoid claims for a contract error, with effective drafting software now widely available to law firms.

However, despite the existence of modern technology drafting mistakes continue to occur, resulting in compensation claims being made against solicitors. If you believe that your solicitor has made a mistake when drafting a contract and you have lost out financially as a result, then we are here to help.

We deal with solicitors negligence claims nationwide and are experienced in claiming compensation for contract error cases. We will be happy to provide an assessment of your case free of charge, together with details of no win, no fee funding. Call us now on 0333 888 0403 or email details of your claim to us at [email protected]