It is important to distinguish between situations where the claim against the original Defendant has already settled, from those where the claim has not yet settled. If your claim has not yet settled, there may still be time to ‘undo’ any damage resulting from your solicitor’s negligent advice or actions.
If your solicitor has acted in a way that is actually or even potentially negligent, they should advise you to take independent legal advice from another firm of solicitors, as there will now be an actual or potential conflict of interest between you and your solicitor. That said, it is remarkable how often this advice is not given!
If you believe that your solicitor has acted negligently and the claim has already settled, there are some very important legal standards or tests that have to be satisfied before you are entitled to be compensated by them.
First, it should be understood that proving that your solicitor has acted and/or advised negligently, does not automatically mean that your solicitor must compensate you. This is because there is a legal burden on you to prove that your solicitor’s negligence has resulted in you suffering financial loss. In other words, you must be able to prove that if your solicitor had not acted and/or advised in the way that they did, you would have received a greater amount in damages in the original claim. The duty is on you to prove this; there is no duty on your solicitor to disprove it.
The standard of proof that the court will require before ordering your solicitor to pay you damages is based upon “the balance of probabilities” (so “more likely than not” or “greater than 50%”). This is the standard of proof required in all civil claims for damages. In other words, this standard of proof is a lot lower than is required in the criminal courts, where the standard is “beyond reasonable doubt”; a very high standard indeed.
The amount of damages in negligence claims is based upon the Claimant’s loss of opportunity (or loss of chance) of proving one or more items of damage in the original claim. So the Court will have to assess what would have been the Claimant’s chances of proving that particular part of their claim, if the solicitor had not acted and/or advised negligently.
What to do if you believe that your solicitor has acted and/or advised negligently and your claim has not settled.
Your solicitor should advise you to take independent advice from another firm of solicitors. However, they may not do this if they believe that they have not been negligent or if they have not realised they have been negligent.
If you suspect that they have been negligent, then even if you do not mention the word “negligent”, you should not hesitate to question their actions or advice. That should prompt the solicitor dealing with the matter to pass the file to a senior colleague for review. You should then receive a detailed advice letter addressing all of the relevant issues.
If you do not feel able to raise the matter with them, or if doing so has not satisfied you, then you may feel that you would benefit from a second independent legal opinion. The solicitor that you approach should have experience of handling professional negligence claims against other solicitors.
The solicitor will usually ask for copies of all correspondence and documents connected with the claim that are in you possession. Once the solicitor has reviewed these documents and has had the opportunity to discuss your claim with you, they should be able to advise you whether your solicitor has actually or potentially been negligent, and if so, what the potential remedies are.
It may well be that any damage caused to the claim may be undone, but you will, in all likelihood, feel more comfortable instructing another firm of solicitors to take over the claim. In fact, it is quite ironic in many ways that in the majority of such claims that we take over, the potential damage caused by the former solicitors is undone and this saves them from a professional negligence claim against them!
What to do if you believe that your solicitor has acted and/or advised negligently and your claim has settled.
As with the other scenario above, you should seek a second independent legal opinion. Again, the new solicitor should have experience of handling professional negligence claims against other solicitors. They will also still require sight of any relevant correspondence and documents that you may have retained.
If the new solicitor believes that there may have been negligence giving rise to a potential professional negligence claim, they must follow the Professional Negligence Pre-Action Protocol:
This is a lengthy document, but in the first instance requires the new solicitor to write to the former solicitor to notify them of the potential claim. The Protocol prescribes the information that must be given to the former solicitor and amongst other things, requires them to notify their professional indemnity insurers of the potential claim.
This initial letter will also request the full file of papers. Reviewing this file should enable the new solicitor to advise you with greater certainty as to your prospects of succeeding in a claim for professional negligence.
How quickly must a claim be made?
In most cases of professional negligence, you have 6 years from the date of settlement of the original personal injury claim in which to bring a claim against your solicitors.
It is for that reason that solicitors should retain their file of papers for at least 6 years once the claim has settled. Please remember that once your solicitor has recovered their costs following settlement of your claim, the file of papers belongs to you.
You should also be aware that whether or not you have a claim for professional negligence against your solicitors, you still have the right to complain about their conduct. Their original ‘client care’ letter should set out their complaints procedure.
You also have the right to complain about their conduct to the Legal Ombudsman:
The Ombudsman has the right to award smaller awards of compensation for poor standards of care and conduct, even where there may be no claim for professional negligence.