When representing clients, solicitors and barristers are required to exercise reasonable care and skill, and they are held to the standard of a reasonably competent solicitor or barrister specialising in the area of law in which they practise and represent themselves as authorities. A litigation expert representing you in a claim against a business, for instance, will be held to the standard of a competent litigation solicitor. In this article, Professional Negligence Against Solicitors, we consider the process and mechanism involved.
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What is professional negligence?
Professional negligence occurs when a professional falls below the requisite standard of care. Establishing negligence alone is insufficient to establish liability. The key is to demonstrate that the negligence resulted in a loss (typically monetary).
To establish a negligence claim against a professional, you must demonstrate the following:
- That the solicitor owed you a duty of care not to cause the type of damage suffered. Ordinarily, a duty of care is created when you instruct or retain a lawyer to act on your behalf. A retainer, typically in the form of an engagement letter and/or terms of business, will outline what the solicitor has agreed to do for you, and their responsibilities will typically be derived from this. In addition, under common law, a solicitor owes their clients general duties. In both instances, the duties generally require a solicitor to exercise reasonable care and expertise.
- That the solicitor breached this duty of care and the requisite standard for a solicitor is not perfection. A simple error might not constitute a breach of duty. In general, a solicitor will be found negligent if he or she has not adhered to a practice recognised as proper by members of his or her profession.
- That this breach directly caused you to incur monetary loss. If you can demonstrate that a duty of care existed and was breached, you may be able to pursue your solicitor for damages if their actions caused you to sustain a direct financial loss. This is referred to as establishing cause and loss. Complex rules pertain to this matter.
When a claim has been brought and proved against a solicitor for professional negligence, the solicitor will typically have insurance to cover the losses claimed in successful cases. Additionally, they may rely on limitation of liability clauses in their terms of engagement.
What sort of losses can be recovered?
Losses must be a direct result of the solicitor’s negligence (i.e., they would not have occurred in the absence of negligence) and be reasonably foreseeable. The claimant is responsible for demonstrating, through the presentation of evidence, that the solicitor’s negligence has resulted in actual damages. The court will not consider hypothetical claims of loss that may have occurred regardless.
In a solicitor negligence claim involving litigation, damages may include money wasted on legal fees, money paid to an opponent due to an adverse costs order, and/or compensation not recovered from an opponent.
The quantity of damages in a non-contentious matter will depend on the nature of the instruction. For example, negligent advice on a property’s title could result in an award of damages equal to the difference between what the client believed they were purchasing and what they have actually purchased. The absence of suitable clauses in a contract may give rise to a claim for financial loss caused by the exposure.
How much may I sue my solicitor for?
Generally, a suit for professional negligence is a claim for damages. This compensation should place you in the position you would have been in if the solicitor had not acted negligently.
There are various methods for calculating damages in cases of professional negligence. Consider the scenario of conveyancing negligence as an illustration. In many instances, you would file a claim for the difference between the price you paid for the home and the price you would have paid if an error had not occurred. In rare circumstances, your claim may be for the full value of the home. Alternatively, you could have paid another lawyer to resolve the issue. You can then claim these additional expenses from your initial solicitor.
Claims for professional negligence against solicitors can theoretically be for any amount.
Is there a deadline for filing a claim?
Claims against solicitors must be filed (by initiating court proceedings) within specified timeframes known as limitation periods.
The typical statute of limitations is six years from the date on which the relevant cause of action accrued (which is, in broad terms, the date on which the retainer was breached or the date on which you suffered a loss; these dates may differ). This limit is referred to as the “primary limitation.” If you attempt to file a claim after this date, your solicitor may have a complete defence.
A claimant may not always realise they have sustained a loss or have knowledge of all relevant facts until after the primary statute of limitations has passed. In such situations, a claimant may be able to file a claim if they do so within three years of becoming aware of the relevant facts. This is subject to a 15-year statute of limitations from the date of the negligent act, after which any claim will be barred (with the exception of fraud or intentional concealment).
How we can help
We have a proven track record of dealing with professional negligence by solicitors. We will guide you through the process and ensure all checks are carried out swiftly and efficiently. We firmly believe that with the right solicitors by your side, the entire process will seem more manageable and far less daunting.
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How to contact our Commercial Litigation solicitors
It is important for you to be well informed about the issues and obstacles you are facing. Expert legal support is crucial in terms of reducing risk, saving you money and ensuring you achieve a positive outcome.
To speak to our Commercial Litigation solicitors today, simply call us on 0345 901 0445, or allow a member of the team to get back to you by filling in our online enquiry form. We are well known across the country and can assist wherever you are based. We also have offices based in Cheshire and London.
Disclaimer: This article provides general information only and does not constitute legal advice on any individual circumstances.
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