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20 May 2019

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How to Pursue Professional Negligence Claims Against Solicitors

Posted by: David Jones

We like to think that when we pay a premium price, we receive a premium service, but this is, unfortunately, not always the case. The legal world is no different and, on occasion, the service a solicitor provides may fall well below the duty of care that is owed to you.

This can cause serious problems. After all, most of us only instruct a solicitor at times of great importance, whether that be buying a house or pursuing an unfair dismissal. In these circumstances, you can’t really afford for mistakes to be made.

Still, if you do think your solicitor has acted negligently, it’s important to know there are steps you can take to recover your losses. Claiming against a solicitor can feel like an impossible task, especially if you’re not well-versed in the law, but this doesn’t have to be the case.

Before we look at how to pursue professional negligence claims against solicitors, though, you might be wondering if you have a claim at all. If this is the case, why not take a look at some examples of solicitor negligence to help you decide.

Determining Negligence

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In any negligence case, your first step should be to determine whether negligence has indeed taken place and, if so, what the scope of it is. To do this, ask yourself the following questions:

  • Is a duty owed? When you instruct a solicitor they have a duty to provide you with a standard of care and diligence. The scope of this duty will vary depending on what you instructed them to do. If you have a contract with the solicitor (usually when you have agreed terms in an engagement or client care letter), this will help you determine the duty owed, though this can also be achieved without a contract.
  • Has there been a breach? Once you’ve determined the duty owed, you need to decide whether it has been breached. What this looks like will vary from case to case, but it could be something like failing to submit documents to the court before a deadline.
  • Have you suffered a loss? Negligence claims aren’t designed to provide you with compensation, they are used to recover losses and return you to the position you would have been in had the negligence not occurred. Therefore, you need to show a loss.

If the answers to these questions are “yes”, then you could have the makings of a professional negligence claim against a solicitor. Before you head to the courtroom, though, there are steps you can take to keep the costs of your claim as low as possible.

Complaining to Your Solicitor

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Court cases are costly and time-consuming, so where you can, you should try to resolve any issues you’ve had with a solicitor directly with them or their firm.

Solicitors are required to follow the Solicitors Regulation Authority (SRA) Code of Conduct, which sets out rules to ensure clients are treated fairly and professionally, so this can be a good place to start with your complaint.

In fact, if your complaint concerns a breach of the SRA Code of Conduct, such as being dishonest, fraudulent or discriminatory, you can also report them to the SRA.

All solicitors have a process for handling complaints, so the process should not be difficult, though you will need to give your solicitor a good amount of time to resolve your complaint before you take it further.

When making the complaint, ensure you are as clear as possible about the issues you’ve encountered and how you would like them to be resolved. You should also ensure you put the complaint in a formal written letter or email.

Contacting the Legal Ombudsman

If your complaint is unsuccessful or not resolved to your satisfaction, your next step might be to contact the Legal Ombudsman.

The Legal Ombudsman can lend support on a range of issues you may have with your solicitor, including:

  • Delayed or unclear communication
  • Problems with your bill
  • Loss of documents

They can pass your case onto an investigator for assessment but, depending on the size and complexity of the case, may recommend that you use the services of a professional negligence solicitor instead.

Making a Claim

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If you need to make a claim against a solicitor without using the Legal Ombudsman, your first step should be to seek professional legal advice. Even if your claim is small enough that hiring a solicitor to pursue it in its entirety is not cost-effective, it’s still worth seeking some advice at the outset.

This is for the simple reason that every claim is different and needs to be approached in its own unique way.

If you believe your claim is sizeable, you should seriously consider using a professional negligence solicitor. While they can’t guarantee success, solicitors understandably have more experience in the law, claims tactics and court procedure so you may find hiring some help is essential to giving yourself the best chance of success.

For most negligence claims, it’s likely that your claim will begin with complying with a pre-action protocol. This involves sending a letter to the solicitor in question that outlines the legal basis for the claim and the value of the claim.

Depending on the size and complexity, you may wish to send an initial letter outlining the details of the claim, followed by a more detailed letter once the claim has been investigated further.

On these letters, you’ll need to provide a date by which they must respond.

In response, you should receive either a letter of response detailing which elements of your claim they agree or disagree with, or a letter of settlement, which should make a proposal to settle.

In the event that your claim is disputed, you may consider a form of alternative dispute resolution (such as mediation) to settle the claim out of court. If this fails, the next step is to issue court proceedings.

If the claim is worth more than £10,000, the losing party will likely be ordered to pay the costs of the winner. Therefore, you need to think carefully about the strength of your claim and whether you need professional help to win it.

If you don’t you could find yourself on the losing side with a court order to pay thousands of pounds of legal costs to the opposition.

In claims under £10,000 each party will ordinarily bear their own costs.

Time Limits for Pursuing a Solicitor Negligence Claim

If you’re considering a claim, it’s important to realise you don’t have an unlimited time to decide whether to pursue it. In fact, you typically have just six years from the point of negligence taking place or, in some cases, three years from the date of the negligence coming to light (known as the date of knowledge).

If you believe you may have a claim against a solicitor for negligence, get in touch with Glaisyers to learn more about how we can support you.

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David Jones - Partner

To discuss how Glaisyers can assist you contact David Jones on drj@glaisyers.com or via 0161 832 4666.

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