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When a solicitor makes a mistake the question on everyone's lips is usually 'can I sue for negligence?'
People are often surprised to find out that even when a solicitor makes a mistake it doesn't necessarily mean that they are entitled to sue.
One of the key elements of a solicitor's negligence claim is whether the solicitor has breached their 'duty of care'. In other words, 'does the solicitor's mistake amount to a breach of their duty of care?'
To consider if a mistake amounts to a 'breach' it is necessary to look at whether it was a specialist solicitor who made the mistake, or an inexperienced one.
Solicitors will be judged by the standard of the 'reasonably competent solicitor' specialising in whatever area of law the solicitor professes to specialises in.
So, the conduct of a solicitor who specialises in a particular area of law such as property conveyancing will be considered in terms of what can be reasonably expected of a specialist conveyancing solicitor.
But where a solicitor holds themselves out as having very high levels of skill and care in their area of expertise, the duty owed will not be inreased.
Once it has been established that the solicitor's mistake amounts to a breach of duty the next hurdle to overcome is establishing what lawyers refer to as 'causal loss'.
In order to bring a solicitor's negligence claim you have to show that you have suffered financial loss. If the solicitor has made a mistake but their mistake has not resulted in any loss then compensation cannot be claimed.
For instance if a conveyancing solicitor makes an error in relation to the purchase of a property (failing to advise on a restrictive covenant for example) but the purchaser decides not to proceed with the transaction for unrelated reasons then even if the solicitor's mistake was clear cut the fact that the purchase did not proceed means that no loss was suffered.
Where loss can be established a successful claimant must also show that the loss arose directly as a result of the solicitor's mistake and not some other cause. If the loss would have arisen even if the solicitor's mistake had not occurred then the claim is unlkely to succeed. This element of a solicitor's negligenec claim is known as 'causation'. A classic example would be a solicitor making a mistake in a litigation case which the claimant would have lost anyway, even if the mistake had not occured. For instance if a claim were to become statute barred because of undue delay by the solicitor ( a clear mistake) but the claim itself had no realistic prospects of succeeding then the negligence claim will be likely to fail on causation.
It's also worth considering the value of the claim before you sue. If the loss suffered as a result of a solicitor's mistake is under £10,000 then it will be classified as a 'small claim'. This means that even if the case is successful in the small claims court you are unlikley to recover your legal costs. It is therefore rarely economic to employ the services of a solicitor in a small claim as the legal costs can quickly outweigh the value of the claim. People can end up losing most, if not all, of what they win in legal fees or even find themselves out of pocket. The likely costs and benefits of a solicitor's negligence claim therefore need to be carefully weighed up before you sue.
The key thing to remember about solicitor's negligence claims is that they usually turn on the individual facts of each case. This makes it important to seek specific guidance from a lawyer who specialises in negligence claims against solicitors. If your solicitor has made a mistake resulting in losses of more than £10,000 and you want to know if you can sue then you can call our FREE SOLICITOR'S NEGLIGENCE HELPLINE on 0808 139 1595 or email us at email@example.com