What is professional negligence?
Professional negligence can be described as the failure of a professional to perform their responsibilities to the standard that is required from them, or a breach of duty of care by the professional. Examples of professional negligence can include providing a poor service, a breach of confidentiality, provision of poor advice, or failure to identify serious issues.
You may be able to bring a claim for professional negligence against anyone who claims to have expertise in a particular field, if you can prove that the service they provided fell below the expected standards and you have incurred loss or damage as a result. It is important for a professional negligence case to be successful that the causal link between the negligence and the loss or damaged can be proven.
Professional negligence claims against solicitors
Your solicitor owes you a duty of care to act with reasonable competence, and if they have held themselves out to have specialist knowledge or experience, then they will owe a higher duty of care, reflecting that specialist knowledge or experience. Falling below these standards and thereby causing you loss, damage or a lost opportunity may well mean that there is a professional negligence claim to be made against the law firm.
Legal professionals are obliged to have professional indemnityindemnity: a contractual promise to meet another party’s l... insurance in place, so if things go wrong because of their negligence, then any losses can be expected to be recovered at least to the level of the insurance. While getting things right the first time is better for all, mandatory insurance is an important safety net for those who use the legal profession, especially so if being advised on large transactions or substantial litigationlitigation: the bringing of a lawsuit or legal claim in cour....
Whether it be in relation to a conveyance, personal injury claim, litigationlitigation: the bringing of a lawsuit or legal claim in cour..., a will, tax advice or in any other legal service, if things have gone wrong then the potential liability of the legal professionals involved should be carefully explored. Of course, just because things have not gone the way you had hoped does not necessarily mean there has been negligence.
Examples of solicitor’s negligence
There are many incidents or mistakes that can be made by solicitors which could amount to professional negligence. Below are just a few examples:
- Provision of inaccurate or incorrect legal advice
- Missing a limitation date
- Instruction of inappropriate experts in a case
- Missing important deadlines, such as Court deadlines
- Under-settling a claim
- Failing to conduct proper investigations leading to unfair settlements, for example, in a divorce case
- Acting against a client’s instructions
- Failing to properly advise on funding options
- Incorrectly drafting a legal document
What can you expect to recover?
English civil law is, in general, compensatory, and a claimant can only recover what they have lost. If a negligent solicitor caused a speculative event (such as litigationlitigation: the bringing of a lawsuit or legal claim in cour...) to be lost, then the courts will often award the product of the chances of success and the likely recovery. For example, if the prospects of success in litigationlitigation: the bringing of a lawsuit or legal claim in cour... had been put at 60% and recovery was estimated at £2 million, the value of the loss of chance would be put at £1.2 million.
Of course, real life is seldom simplistic, and a detailed analysis of how the negligence has caused the losses needs to be undertaken, including a careful review of the evidence, should be undertaken before a claim is commenced. Even where a professional has been negligent, if that negligence cannot be proven to have caused the loss, then the claim will fail.
Time limits for making a professional negligence claim against a solicitor
As with all professional negligence claims, the limitation period for making a professional negligence claim against a solicitor is six years from the negligence took place, although there may be some exceptions to this rule. We would suggest that you initiate your claim as soon as possible after the negligence took place as the details will be fresh in your mind at this point, and you will be more likely to have all of the required documents at hand. Get in touch with our specialist professional negligence solicitors for initial legal advice on making a claim.
Are you likely to win your case?
As with any legal claim, a claim against a solicitor can be fraught with traps for the unwary, from limitation to risk management. On the other hand, a well-prepared and compelling claim may well be resolved reasonably quickly. It is seldom going to be in the professional’s interest to end up in a trial or for their insurer to end up paying for the costs of a trial.
That said, professional negligence claims of any description can be hard-fought where the professional is insured and has a reputation and livelihood to protect. However, those factors can also make settlement in mediationmediation: in the context of litigation and dispute resoluti..., without exposure to a public hearing, an attractive option.
Still, getting there, especially in complex cases, can require considerable time and therefore cost.
Those who engage professional advisers should think about what could happen if things go wrong before entering into a retainer or letter of instruction.
What, for example, is the scope of the solicitor’s retainer? Solicitors may exclude tax advice while giving advice on a commercial transaction, or they might narrow their responsibility just to conveying the legal title in a property purchase and not advising more widely. Also think about their insurance. Minimum cover of £2 or £3 million might sound like a lot of money, but commercial transactions and even house purchases often involve far greater sums.
Funding a professional negligence claim against a solicitor
Claims against solicitors can sometimes justify the claimant’s solicitors working on a contingent (no win, no fee) basis, and South Bank Legal may consider working, at least in part, on a contingent basis if your case looks strong and it cannot be funded through to trial otherwise.
Making a complaint against a solicitor
In some cases, an issue with the service you have received from a solicitor is best addressed as a complaint against the solicitor. For example, if you received poor service from a legal professional, but did not suffer a financial loss as a result of the service, a complaint against the solicitor should be the best approach.
It can be difficult to know whether your complaint should be left as just a complaint, or if you should make a professional negligence claim. If you have suffered a loss due to negligence, it is likely that you will be entitled to pursue a claim. Bear in mind that the maximum financial award that the Legal Ombudsman can make is £50,000.00, although this does not apply to interest or limits on fees imposed by the Legal Ombudsman.
When making a complaint, your fist port of call should be to set out your complaint to the law firm directly; all firms are required to set their complaints policies out to their clients. You should allow eight weeks for the firm to provide a response. If you do not receive a response, or if you are unhappy with the response, you may wish to escalate your complaint against the firm to the Legal Ombudsman. If you believe the behaviour of a solicitor has breached the SRA’s Code of Conduct on grounds of fraudfraud: in the context of commercial dispute resolution (as o..., dishonesty, or discrimination, you may wish to inform the Solicitor’s Regulation Authority although they cannot award you any compensation.
If you are still unsure as to whether you should make a complaint or a claim against a solicitor, contact us and we can provide information on your best course of action.
Costs issues with your solicitor
Legal costs are a specialist area often dealt with by dedicated costs lawyers. If a solicitor’s costs are excessive you can apply to have them reduced by a process called assessment (formerly taxation). There are strict time limits and there are fees to pay – and if the bill is not reduced by 20% or more you could end up paying the solicitor’s costs of assessment as well. A complaint (see above) might be a better approach in many circumstances.
The courts will usually not allow a firm’s costs claim to stifle a genuine professional negligence claim against the firm. So, if you have a professional negligence claim, and have at least commenced the pre-action procedure, any costs claim by the solicitor is likely to be stayed while the courts deal with your professional negligence claim. This is something we can assist with.
How can South Bank Legal assist?
If you have lost out because of your previous solicitor’s negligence, then you would benefit from speaking to a dispute resolution solicitor. Please feel free to contact our professional negligence team today via email at info@southbanklegal.com or telephone 0203 1266 584 for a confidential discussion.
South Bank Legal are authorised and regulated by the Solicitors Regulation Authority. We are registered in England and Wales with a registered office in London.
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