We instruct solicitors to carry out some of the most important tasks for us. From buying our houses; ensuring that our families will be looked after when we die; to resolving a dispute with an employer or neighbour. Solicitors go through many years of training and comply with guidelines set out by the Solicitors Regulation Authority. While the majority of transactions and cases run smoothly and without issue, unfortunately sometimes mistakes happen. We look in this article at professional negligence claims against solicitors.
Complaints about solicitors’ service
If you feel you have received poor service, for example:
- delayed or unclear communication
- problems with your fees, or
- loss of documents,
your first step should be to consider following the firm’s internal complaints procedure. Very often the internal procedures will prove to be sufficient to resolve any issues arising.
If it does not, however, you may want to consider writing to the Legal Ombudsman. The Ombudsman will consider your complaint and also listen to what the solicitors say. He will then make a decision about whether the solicitors acted properly. The Ombudsman will not accept your complaint if you have not already attempted to use the internal complaints procedure.
Professional Negligence claims against solicitors
What do I need to show?
There is a difference between receiving poor service, and your solicitor being negligent. To bring a claim for professional negligence you would have to show the following:
- That the solicitor owed the claimant a duty of care;
- The solicitor breached the duty of care; and
- And the breach caused you a loss.
You instruct a conveyancing solicitor to act for you while you are purchasing a house. The house is in a former coal mining area, but solicitor fails to carry out a coal mining search. You later discover that there is a coal mining shaft below your home, reducing the value of the property.
How long have do I have to bring the claim?
There are strict time limits for bringing claims in court. Not adhering to deadlines will provide the solicitors with a strong defence that you were out of time in bringing the claim.
As far as professional negligence claims against solicitors are concerned, the limitation period in most cases is six years from the date of the negligence. If the negligence becomes apparent at a later stage, an extension of three years may apply. The complete end limit within which you can bring a claim for professional negligence is 15 years.
What is the procedure?
To ensure that people do not rush off to court to sue their solicitors without attempting to resolve the matter first, the parties must comply with what is known as the Professional Negligence Pre-Action Protocol. This helps the parties narrow the issues between them and can prevent further costs from accumulating without the need to resort to court proceedings.
Your professional negligence solicitor will take you through the steps that you’ll need to take. These include letters explaining exactly what your case is (known as a letter of claim); and a response from the solicitors, explaining their case (known as a letter of response).
If you are not satisfied with the response, for example because the solicitor denies the claim, you may commence court proceedings.
Will I have to go to court?
In short, probably not. The courts themselves encourage parties to consider alternative dispute resolution (“ADR”) before resorting to court proceedings. Not attempting ADR may incur further costs or mean that you do not recover your costs even if the solicitor is found to have been negligent. We set out the benefits of the different types of ADR here.
In our experience, many professional negligence claims against solicitors are resolved without the need to issue proceedings. All solicitors are insured, and the insurer will usually prefer to settle the claim without the expense of court.
Of course, if attempts to settle are unsuccessful, then you can escalate the matter to court. However, be mindful that you may be ordered to pay the solicitors’ legal costs if your claim is unsuccessful. Likewise, however, the court will order that the solicitors pay your costs if you win.