When someone instructs a solicitor, they expect high-quality advice and for that solicitor to achieve the result they were instructed to get. Sadly, for a variety of reasons, this does not always occur, and mistakes can be made. The options available in that situation will vary depending on the impact of the mistake.
If the mistake has caused delay and frustration, but not otherwise caused a specific loss, then the best option would be to make a complaint to the solicitor in question and, if necessary, the Legal Ombudsman Service. This is on the basis that the mistake is a service issue and could be resolved by a small amount of compensation.
However, if the mistake has caused a financial loss, then it may be possible to pursue a claim for professional negligence against the solicitor. There are three facets to a professional negligence claim which must be established to succeed:
- you were owed a duty of care;
- that duty of care has been breached; and
- you have suffered a loss that would not otherwise have occurred as a result of that breach.
A solicitor owes a duty of care to their client to carry out their instructed services to the level of a reasonably competent solicitor. This is distinct and different from having to be perfect.
To show that the duty has been breached, it is necessary to consider what a reasonably competent solicitor would have done and compare that to what occurred. If what the solicitor did is outside of the options that a reasonably competent solicitor would have taken, then there has likely been a breach of duty.
It is then necessary to show that but for the breach of duty the loss suffered would not have occurred. The loss could be that you have lost your claim, incurred additional costs, had to pay your opponent’s costs, or had to forego certain aspects of your claim. In some situations, mistakes are made by solicitors, but no loss is created or the loss would have occurred regardless of the mistake. In either situation there is no viable professional negligence claim as there is no loss caused by the mistake.
It is not the case that there are set awards from the court for certain types of mistakes by solicitors and instead all awards by a court will directly relate to the loss you have suffered as a result of the mistake. The assessment of loss will therefore involve considering your actual position and comparing that to what would have occurred if the negligence did not occur.
In most instances it is therefore necessary for your underlying claim be concluded (one way or the other) before such assessment can take place. However, if you think your solicitor has been negligent and your case is still ongoing it is usually best to switch to an alternate firm of solicitors to conclude your case.
Types of Mistakes
Many professional negligence claims result from missed deadlines, whether those are deadlines within an active claim, the deadline for a response or the deadline for a claim to be issued (known as limitation).
There is rarely any basis for a solicitor to argue that missing a deadline does not constitute a breach of duty. In some situations, missing a deadline causes little material impact to the claim but in others it can mean the claim, or parts of it, are no longer viable. This can create a claim for a ‘loss of a chance’.
A solicitor can breach their duty by providing incorrect advice. Such advice could be on the merits of a claim (whether good or bad), specific steps to take, offers to make or accept, documents to disclose, procedures to follow and almost any other aspect of advice given over the claim process.
It is always essential to assess what the solicitor’s options were at the time of the incorrect advice and determine what a reasonably competent solicitor could have advised, with the same information, at that time. There is only a breach of duty of the option taken falls outside that which could have been taken by a reasonably competent solicitor at that time.
Instruction of Experts
A solicitor will not breach their duty to a client if the expert evidence obtained by that solicitor does not support the client’s claim. This is because the expert’s views are of course intended to be independent and therefore outside of the control of a solicitor.
However, there could be a breach of duty if the expert has come to an incorrect view because they have been negligently instructed by the solicitor for instance because incorrect documentation or instructions were provided.
Instruction of Barristers
A solicitor is entitled to rely on the advice from a barrister they instructed. As such, if the negligent steps taken were the result of advice by a barrister, then it is not possible to claim against the solicitor. However, in such a situation, it may be possible to pursue a claim against the barrister.
As with experts, there is no breach of duty to a client if a barrister instructed by a solicitor provides an unhelpful opinion, but a solicitor can breach their duty if they fail to properly instruct the barrister, fail to select the right sort of barrister, or fail to spot an obvious error in the advice from that barrister.
Legal Expenses Insurance
Where a claim is funded by way of legal expense insurance, there can be conflict between what the client wishes to do and what the insurance will cover. For instance, the legal expenses insurance might only cover detain types of claim or certain costs.
A solicitor is not required to take steps there is no funding for but should advise a client of what options there are for the client to fund those steps.
Types of Loss
Loss of a Chance
In situations where the negligence by the solicitor has meant you lost your case or the ability to make your claim, the appropriate loss is the ‘lost chance’ to pursue your claim. The value of the lost chance is obtained by applying the chance, as a percentage, of the claim being successful if the negligence hadn’t occurred, to the value of the claim.
By way of example, if you have lost the chance of pursuing a personal injury claim for £100,000.00 that had a 60 per cent chance of success, then the value of your lost chance is £60,000.0 (60 per cent x £100,000.00).
If the negligent actions of the solicitor have caused you to incur additional costs that you have not been able to recover from your opponent in your claim, then these could be claimable from the negligent solicitor.
Likewise, if the negligent actions have caused you to have to pay your opponent’s costs, then this could be claimable from your solicitor.
Loss of Funding
If negligent actions by a solicitor mean that legal expenses insurance, or another type of litigation funding, is lost or exhausted the appropriate claimable loss is the fees paid to an alternate solicitor in then pursuing the underlying claim. It is not possible claim loss of a chance due to loss of funding.
At RHL Solicitors, we’re here to make your life easier when it comes to legal support, while providing you with an exceptionally high standard of care.
Professional Negligence Claims are often defended strongly by solicitors and their insurers and accordingly can be difficult and complex to pursue if acting in person.
We have considerable experience of dealing with a wide variety of Professional Negligence Claims and can help you through the process with expert and easy to understand advice to ensure you receive an outcome that is right for you.
If you have been let down by a solicitor and wish to explore your options, contact our specialist professional negligence team who will be more than happy to discuss the matter further.
RHL Solicitors will have no delays or waiting times in advising you on your situation and will be quick to get you the support and care you deserve.