We offer help for litigants in person making a professional negligence claim

Our professional negligence team provide help for litigants in person making a professional negligence claim. You can call upon our help as and when you need it, limiting your responsibility for paying legal costs to the time we spend dealing with a specific issue, rather than the whole case from start to finish.

Are litigants in person really on an equal footing?

The law requires courts to ensure that parties in litigation are on an “equal footing” and that “everyone is entitled to a fair… hearing”.  So surely, with this in mind, when a litigant in person is opposing a party who has full legal representation and seemingly unending resources, the court should play fair and try to level the playing field?

Yes.  But not quite as much as you would think.

This complex relationship was considered by the High Court in the case of Axnollar Events Ltd -v- Brake and others where the defendants, finding themselves as litigants in person, asked the claimants to provide them with a hard copy of the trial bundle without charge.  Faced with refusal, they asked the Court to intervene.

The claimants had brought proceedings against two defendants. Initially, the defendants were represented by lawyers, but funds ran out and they became litigants in person. 

The Directions specified that the trial bundle was to be supplied in electronic form.  However, the defendants complained that, with poor internet connection and lack of resources, they would need a paper copy. The claimants said that they could provide it but the defendants would have to pay their charges for copying the bundle and sending it by courier. The defendants said they were unable to afford those charges and applied to the court for a variation of the order.

To be fair, by the time the hearing occurred, the claimants had provided the paper bundle, but they had also sent a bill along with it.  The defendants felt that it was unfair and wanted the bundle to be provided without charge.

Years ago parties had always been responsible for preparing their own trial bundle. The claimant would send the defendant an index and the defendant then had to prepare their own copy, hoping that the page numbers would marry up.  New rules were then introduced putting responsibility on the claimant but they didn’t specify who should pay the cost.  The court therefore concluded that there was no requirement to provide a hard copy trial bundle free of charge.

The defendants made much of the fact that they were litigants in person and did not have the resources, or even the funds, to arrange for a copy of the bundle to be provided.  In response to this the judge said:

“I remind myself that, absent specific provision made in the rules, the position of a litigant in person is the same as that of a represented litigant, and it is generally not right to give advantages to litigants in person which are not given to represented litigants.”

He also quoted the case of Barton v Wright Hassall:

“At a time when the availability of legal aid and conditional fee agreements have been restricted, some litigants may have little option but to represent themselves. Their lack of representation will often justify making allowances in making case management decisions and in conducting hearings. But it will not usually justify applying to litigants in person a lower standard of compliance with rules or orders of the court.” 

The judge concluded that:

“some expenditure by each of the parties is unavoidable.  Equipping yourself with the necessary papers for the trial process is part of that.”

So what about the “equal footing” that the rules refer to?  He dealt with that also:

“Equal footing does not mean that litigation cannot take place unless all parties have equal resources”

Ouch!

Professional help for litigants in person making a professional negligence claim

At a time when legal fees can be unaffordable for the average person – especially in claims that fall into the small claims court, where costs generally cannot recovered even if you win – it is understandable why many people feel they have no choice but to become litigants in person.  The courts will accommodate litigants in person, but only to a certain extent; their role is to ultimately enforce compliance with rules. The reality is that, in many instances, litigants in person will be at a disadvantage.

Here at Slee Blackwell, we recognise that. So, if the merits of a case are good and the value of the claim is substantial (ideally well above the £10,000 small claims court limit) then we are always happy to consider the possibility of no win, no fee funding.

In cases where it is not financially feasible for us to take on the case completely, we offer a service where we can assist you on an ad-hoc basis.  You will deal with the claim on a day-to-day basis and when you get to a point where you need help, we are there to assist you. You then pay our charges for the time we spend dealing with the specific issue and not the whole case.

If you would like to know more about the help for litigants in person that we offer or wish to discuss your options then please do not hesitate to call our free legal helpline and speak to either Emma Slade or David Paull on 0333 888 0403 or email us at [email protected]

When a conveyancing mistake is made are you entitled to claim compensation?

If you are looking for experienced solicitors to deal with a conveyancing error then call our free helpline for a case assessment and details on no win, no fee funding. Call 0333 888 0403 or email brief details to us at [email protected].

A conveyancing mistake can be costly. Buying a house or a flat is probably the single most expensive purchase you will ever make, so you need to make sure that it is handled properly and that all the important legal issues are carefully considered.

The kitchen extension:  Is it legal?  Is there planning permission?  Building regulations approval?

The driveway: Does it belong to you?  Does your neighbour have a right to use it?  

The garden.  Do you own it?  Are the boundaries correct?

The septic tank:  Who is responsible for it?  Does it comply with current regulations?  Can anyone else use it and if so, what is their contribution to its upkeep?

There are a huge number of legal questions that need to be considered when buying a property. Most people would never stop and think about many of them; which is why you use a solicitor to think of them for you.

In the vast majority of cases the purchase of a property will go ahead smoothly without any hiccups. However, things do sometimes go wrong and a conveyancing mistake occurs.  The solicitor may for instance fail to notice that planning permission for the kitchen extension was never granted. Or someone starts driving over your property as a Right of Way wasn’t noticed.  Or the water pipes burst and you suddenly find yourself responsible for their replacement as ownership of the pipes was overlooked.  

In each of those instances, if the problem had been noticed before you completed on the purchase you would have had the choice to pull out of the transaction, negotiate a reduction in the price or obtain an insurance policy to protect you.  If the conveyancing mistake has denied you those options and you are now out of pocket as a result, you may be able to claim compensation by bringing a professional negligence claim against the solicitor who carried out the conveyancing.

We operate a free legal helpline for people who have suffered a financial loss exceeding £25,000 as a result of a conveyancing mistake. You can call us on 0333 888 0403 or send an email with brief details to [email protected]

 

My solicitor messed up my divorce. Can I claim compensation?

We are regularly contacted by people complaining, “my solicitor messed up my divorce.” If you are in that position and would like to know where you stand then contact us for a free case assessment and details of no win, no fee funding.

Divorce is never a pleasant experience, so when it goes wrong the effect can be devastating. 

As with most legal disputes, an element of compromise on both sides is needed in order to reach a settlement. This means that people rarely walk away from a divorce feeling 100% satisfied. However, while that sense of dissatisfaction is in most cases an unavoidable consequence of the divorce process, occasionally the outcome is made worse by the actions of a solicitor.

What can go wrong during the divorce process?

There is much that can go wrong during a divorce which can in turn lead to significant financial loss being suffered. Examples include:

• Under-settling the financial claim;
• Failing to identify a matrimonial asset;
• Failing to prevent dissipation of matrimonial assets;
• Incorrect valuation of assets, especially property and pensions;
• Failing to comply with a Court order leading to all or part of a claim being struck out;
• Incorrectly drafting any settlement agreements or court orders; and
• Failing to implement a Court Order.

Can I sue the solicitor who messed up my divorce?

If your solicitor (or barrister) messed up and caused you financial loss, then yes, you may be able to bring a compensation claim on the basis of negligence. 

But bear in mind that simply because you did not receive all that you had hoped for, it does not necessarily mean that your legal team were negligent.  You will have to prove that they acted in a way that no reasonably competent solicitor or barrister (with similar qualifications and experience) would have done. Furthermore, you have to show that your losses stem from that negligence and not from any other causes.

How we can help

If you are thinking of making a compensation claim against the solicitor who messed up your divorce and you have suffered loss exceeding £10,000 then you can contact us for a free initial discussion. We will look at what you think the solicitor got wrong and the loss you have suffered as a result. If there are grounds for a claim then we will be happy to consider working on a no-win no fee basis.

Call us on 0333 888 0403 or email [email protected] for a free initial assessment of your case.

 

Claims for being given the wrong financial advice

If you have been given the wrong financial advice and would like to know if you can claim compensation, then contact us for a free case assessment and details of no win, no fee funding.

If you want to look after your hard-earned money then professional financial planning is an absolute must.  You may need advice on where to invest your savings, how to plan for your retirement or opportunities of reaping a better return on your assets.  While some people go to their accountant for this advice, others use the specialist services of an independent financial planner (IFA).  In most instances, that advice works out well, but occasionally it doesn’t.  That’s when consideration needs to be given to whether your loss is attributable to the inevitable fluctuations of the market or wrong financial advice.

Examples of wrong financial advice include:

• Misunderstanding the risk profiles, resulting in the money of a cautious investor being put into high risk investments;

• Encouraging people to enter into risky investment schemes without the relevant warnings or explaining the implications;

• Suggesting a tax avoidance scheme which HMRC subsequently close down;

• Promoting inappropriate investment schemes without checking their provenance or performance history;

• Failure to ensure that the investor can actually afford the investment; and

• Recommending unsuitable pensions and Self Invested Personal Pensions (SIPPS).

Whatever form the wrong financial advice takes and whatever loss it leads to, if the IFA failed to advise you to a suitable, professional standard, then they could be negligent and liable to pay you compensation.  

We specialise in financial negligence. So, if you feel that you have been let down by your your IFA, then call us and we will be happy to discuss your claim with you.   We can also look at funding options, including the availability of a no-win, no-fee. Do not delay in calling though: negligence claims do have strict time limits and they can quickly pass.

To discuss claiming compensation for wrong financial advice on a free, no-obligation basis, please call Emma Slade on 0333 888 0403 or email [email protected] .  We are here to help.

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.

Construction 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 0333 888 0403 or email details of your case to us at [email protected]

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

How much compensation can I claim for professional negligence? Find out by calling our national helpline for a free case assessment on 0333 888 0403 or email details to [email protected]

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 made its decision in Manchester Building Society -v- Grant Thornton UK LLP .  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 0333 888 0403 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? 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 27^th 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.

 

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 0333 888 0403 or email us at [email protected] for a free initial assessment of your case.

 

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 0333 888 0403 or email us at [email protected]

We deal with a range of negligence cases against personal injury solicitors, including claims that arise when a mistake by a solicitor leads to the case being lost or ‘struck out’. However, in this article Emma Slade looks at one particularly common cause for complaint; the injury settlement that is far too low.

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 0333 888 0403.