Suing a solicitor for professional negligence may seem like a daunting prospect, but it is possible, provided the legal and evidential aspects of a professional negligence claim can been made out.
Below we look at what is meant by professional negligence when the professional in question is your former solicitor, together with the basic ingredients of a successful professional negligence claim. We also highlight some common examples of mistakes a solicitor may make when advising or acting on behalf of a client, together with the practical steps that need to be taken to sue them.
What is professional negligence by a solicitor?
Professional negligence by a solicitor refers to a scenario in which you have instructed a solicitor to deal with a legal matter on your behalf, but where a mistake or series of mistakes have been made in their handling of that matter. Broadly speaking, if those mistakes have resulted in some form of financial loss or actual damage, you may have the basis upon which to sue them in negligence.
Under English common law, negligence is a type of civil wrong in which any act or omission falls short of the standard to be expected of the reasonable person. As such, in the context of professional negligence, this is where an individual fails to perform their obligations to the required standard for the profession in question, and that negligence or breach of duty results in either financial loss, damage to property and/or physical harm to the person to whom a duty of care is owed.
Importantly, all solicitors have a duty to exercise reasonable care and skill in acting for their clients, to be judged against the standard of a reasonably competent solicitor specialising in the same area of law. For example, a solicitor who has acted for you in the purchase of business premises will be judged by the standard of a reasonably competent commercial property conveyancing lawyer.
Equally, a solicitor who represented you in the context of either a corporate transaction or contractual dispute will be judged by the standard of a reasonably competent commercial lawyer.
What are examples of solicitor professional negligence?
Given the many areas of legal practice, the scope for mistakes is wide-ranging although, extending the examples cited above, two of the most common scenarios of solicitor professional negligence can be in the context of conveyancing transactions and different types of commercial litigation.
For the conveyancing solicitor, it is not uncommon for land searches to be missed or misinterpreted, or for the title of a property to not be properly investigated. This could result in a client purchasing a property where a neighbouring landowner benefits from a right of way, or where there are restrictive covenants over the way in which the property can be used, in both cases de-valuing that property.
For the commercial lawyer, it is not uncommon for oversights to occur throughout the litigation process. In many instances, this can include missing key procedural deadlines or even a failure to issue the claim in time, where different limitation dates apply depending on the type of claim. It is also not uncommon, especially in difficult and complex cases, for a solicitor to simply get the law wrong, providing erroneous or misleading advice resulting in financial losses for their client.
Can I sue my solicitor for professional negligence?
To be successful in suing a solicitor for professional negligence, there are three key ingredients that make up a potential claim, namely that you were owed a duty of care, that your solicitor breached that duty and that any breach caused you to suffer some form of loss. This means that there must be credible evidence to prove that mistakes were made, either in the advice that you were given or the steps that were taken on your behalf, and you suffered a quantifiable loss because of this.
Securing early expert advice from a solicitor specialising in professional negligence claims will help you to make an informed decision on how best to proceed. A competent solicitor can provide you with the necessary advice as to your prospects of success based on the facts of your particular case. They can also help you to reach an out-of-court settlement on the best possible terms or, alternatively, to navigate the various procedural and evidential hurdles to successfully sue.
The matters contained within this article are intended to be for general information purposes only. This blog does not constitute legal advice, nor is it a complete or authoritative statement of the law in England and Wales and should not be treated as such.
Whilst every effort is made to ensure that the information is correct, no warranty, either express or implied, is given as to its’ accuracy, and no liability is accepted for any errors or omissions.
Before acting on any of the information contained herein, expert advice should always be sought.
© Melissa Worth August 2023