When a solicitor has made a mistake the question on everyone’s lips is usually ‘can I make a claim against them?’
People are often surprised to find out that even when a solicitor has made a mistake it doesn’t necessarily mean that they are entitled to a claim.
One of the key elements if you have been let down is whether the solicitor has breached their ‘duty of care’. In other words, does the bad advice, or action amount to a breach?
To consider if negligent action amounts to a ‘breach’ it is necessary to look at whether it was a specialist lawyer 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 professional professes to specialise 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 professional holds themselves out as having very high levels of skill and care in their area of expertise, the duty owed will not be increased.
Once it has been established that the solicitor’s mistake amounts to a negligent act the next hurdle to overcome is establishing what lawyers refer to as ‘causal loss’.
In order to bring a claim against a solicitor you have to show that you have suffered financial loss. If the blunder resulted in no loss then a claim cannot be pursued.
For instance if a conveyancing lawyer advises badly 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 malpractice 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 negligence and not some other cause. If the loss would have arisen even if the misdemeanour had not occurred then the claim is unlikely to succeed. This element is known as ‘causation’. A classic example would be being let down by a solicitor 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 claim will be likely to fail on causation.
It’s also worth considering the value of the claim. 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 unlikely 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 claim therefore need to be carefully weighed up before being pursued. We will discuss funding options with you at the start.
