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Suing your solicitor for professional negligence

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Sometimes, even an established professional such as a lawyer or solicitor can make a mistake that directly affects you or your business. Mistakes, whilst thankfully not that common in the UK, can mean that a wide range of claims may fail, contracts become invalid and you or your business are left picking up the pieces with the likely financial consequences that this entails.
If you have had a problem with your solicitor and you would like to find out more about making a claim for compensation, there are 4 main factors to consider:

1. Has the solicitor or lawyer actually been negligent?

It is vital to establish whether or not your solicitor may have been negligent in handling your affairs. Solicitors have a duty of care to all of their Clients, and a breach in this duty of care may well mean that they are negligent. The basic test to determine whether there has been a breach of the duty of care is simple: has the conduct of the solicitor fallen below the standard to be expected from a reasonably competent solicitor? This question needs to be carefully considered. Just because you lost your case doesn’t mean your solicitor was wrong in his advice. Or if you didn’t get the outcome you had hoped for or the amount you were seeking, then it doesn’t necessarily follow that your solicitor was negligent.

2. Is your negligence claim actually worth pursuing?

Whilst a court may decide that legally, you have ‘won’ your claim for negligence, actually receiving financial compensation is not a foregone conclusion. Solicitors are obliged to have Professional Indemnity Insurance in place against the possibility of a negligence claim being brought against them, which is a big help, but this does not necessarily mean that they can or will pay. The value of your claim is also an important factor - If your claim is worth less than £10,000, it will fall into the Small Claims Court where, regardless of whether you win or lose, you will have to bear your own legal costs. If you choose to instruct a solicitor, the costs of doing so will invariably exceed the value of the claim itself. It is only if the claim exceeds the Small Claims Court limit that you are entitled to recover some of your legal costs if you are successful.

3. Have you suffered financial loss?

To be able to make a claim, you must have suffered a direct financial loss. If there has been an intervening event that has caused the loss or the loss would have been suffered even if the solicitor had not breached their duty of care, then the claim is likely to fail. You also must demonstrate that you have mitigated (that is, taken reasonable steps to minimise the financial impact of the negligent action) your loss where possible. The costs of attempting to mitigate the loss are recoverable from the negligent solicitor, even if the attempt at mitigation ultimately fails. But if your chosen course is considered to be unreasonable, you won’t be able to recover those costs. You therefore need to choose your course wisely.
As for what is considered reasonable, the Courts have said that if it would be too costly or complicated to bring mitigating action, then you do not have to take that course of action just to protect the solicitor from the consequences of his own carelessness. But if there is a reasonable course of action, then if you don’t take it your claim will be reduced. Determining what is reasonable or unreasonable will differ from case to case.

4. Is your claim within the proscribed time limits?

The Limitation Act 1980 makes it very clear that there are strict time limits in place for you to bring a claim in the Courts. The time limit varies depending on the type of claim, but for claims against solicitors you generally need to act within six years of the date of the negligence or the date of knowledge of the negligence. Any claim older than this means your case will be statute barred and you will not be able to recover any compensation. Date of knowledge of the negligence is a key point, as not all errors are immediately obvious. Some only come to light much later - In these situations you can rely on s14A Limitation Act. This is known colloquially as the “date of knowledge” limitation or DOK. With DOK claims, you have three years from the date you ought reasonably have been aware of the error to bring a claim.

If you are thinking about taking legal action for professional negligence but are worried about the costs involved, Advantage Litigation Services have the skills and expertise to help you find a way of funding commercial litigation without risking your personal finances or those of your business. Click here to contact us today or call 0800 160 1298 to see how we can help.

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