A solicitor will advise you on some of the most important moments of your life. This could include drafting your Will, acting on your behalf in a divorce, purchasing residential or commercial property or commencing litigation. It’s crucial, therefore, that they provide a skilful and professional service, as any mistake could have significant consequences.

You could have a professional negligence claim if the service received from a solicitor was below a reasonable standard of skill and care and as a result you have suffered a financial loss.

If you think you have a claim against your solicitor, please contact us at Downie & Gadban and we’d be happy to assist.

Examples

There are many circumstances where it may be appropriate to pursue a claim against your solicitor. Some examples include:

Property

  • Failing to advise if your property had certain rights of way to the highway
  • Failing to register the title or other legal rights upon a purchase
  • Failing to advise on specific onerous terms such as ground rent or increasing service charges when acquiring a lease
  • Failing to properly activate a break clause resulting in you being unable to move premises and being liable for further rent
  • Failing to advise on certain restrictions in relation to planning or building regulations
  • Failing to complete a property transaction on time and therefore missing the Stamp Duty holiday

Litigation

  • Failing to commence proceedings within the limitation period, meaning the claim was statute barred
  • Failing to comply with a court deadline, leading to your claim being struck out

Probate/Wills

  • Failing to include all beneficiaries upon drafting a Will
  • Failing to carry out an action with estate administration, leading to the loss of Inheritance Tax relief

Family/Divorce

  • Failing to properly consider the value of your partner’s matrimonial assets, such as a valuable pension scheme, meaning you weren’t awarded your fair share

The examples above are not intended to be exhaustive, so if you think you have a professional negligence claim, please contact us at Downie & Gadban and we’d be happy to assist.

CONTACT US

If you wish to discuss a case with us, please contact our professional negligence specialist, solicitor Mark Robertson, on 01420 81270 or fill in the form below.

Should you make a complaint first?

All solicitors are required to have a procedure in place for handling complaints. This procedure, along with information on their service standards and proposed charges, should be made clear at the outset. It may therefore be appropriate to make a formal complaint via this procedure before considering a professional negligence claim.

If you are dissatisfied with the response to your complaint, you can contact the Legal Ombudsman, which is the body responsible for dealing with matters relating to poor service. These could include issues with fees or delayed / unclear communication.

It is a strict requirement that solicitors must have professional indemnity insurance. This means that, whatever the financial resources of the solicitor, compensation for your claim should be covered by their insurance.

It is important to be aware that the time limit on bringing a professional negligence claim does not pause while you are going through the complaints process. If you are unsure on the best route for your claim, contact us at Downie & Gadban for advice on the most effective way to progress.

Why Downie & Gadban?

Downie & Gadban’s team of professional negligence specialists have extensive experience in pursuing disputes involving professionals, including solicitors. We give practical and pragmatic guidance using clear and plain-speaking language to ensure you achieve the best possible outcome. Our specialist professional negligence solicitor is a member of the Professional Negligence Lawyers Association, giving you the confidence that you will receive expert advice on how to progress any claim.

Frequently Asked Questions

Professional negligence is when a professional has failed to perform their services and responsibilities to the required standard. This type of claim can be made against professionals such as solicitors, barristers, accountants, architects, independent financial advisers, surveyors and insurance brokers.

Claims are based on one or more of the following legal causes of action:  breach of (a) contract; (b) duty of care in tort of negligence; (c) fiduciary duty; and / or (d) statutory duty.

Establishing negligence alone is not enough to bring a claim. It is vital to show that the professional’s negligence has caused you a financial loss. A professional may have acted negligently, but if their actions or advice did not cause any loss then a claim will not succeed.

Every professional negligence claim has three essential elements. These are:

  • Duty of Care: The professional owed you a duty of care. This duty is usually specified within the professional’s terms of business or an engagement letter. In addition, professionals are also under a general duty to act with reasonable care and expertise within their chosen industry.
  • Breach of duty: The professional breached the duty owed. A professional will be deemed to have breached their duty of care to you if they have made an error which no reasonable member of that profession would have made.
  • Causation: Loss was caused as a result of that breach and, but for the professional’s negligence, you would not have suffered that loss.

It is vital that all three elements are established for there to be a viable claim. A claim will not be possible if one is missing.

You have the burden of proving a negligence claim against the professional. This is on the balance of probabilities i.e., more likely than not or 51% or more. It will be necessary to prove the duty of care, the breach of that duty and that this breach has caused you a financial loss.

Expert evidence may also be required. This is usually another professional in the same field of expertise. For example, an expert architect is necessary in a claim against an architect to give their opinion on the standards of what a reasonably competent architect should have properly advised.

At Downie & Gadban, we will review and investigate all of the evidence in support of your claim. This will involve obtaining a copy of the professional’s file, including any retainer, terms and conditions, emails, letters and other documentation.

Once a potential claim has been investigated and it appears to be worth pursuing, you are required to comply with a procedure known as the ‘Professional Negligence Pre-Action Protocol’. This is to ensure an early exchange of information and hopefully a resolution of the dispute without the need for proceedings.

The central steps to the Professional Negligence Pre-Action Protocol are as follows:

  • Preliminary Notice: As soon as there is a reasonable chance that a claim will be brought, you are expected to notify the professional in writing with a brief outline of the grievance and an indication of the financial value of the claim. The professional should acknowledge this letter within 21 days.
  • Letter of Claim: Once the potential claim has been investigated, it is necessary to send a Letter of Claim to the professional. This is a detailed letter setting out the facts upon which the claim is based, the allegations against the professional, how they caused the alleged loss and how the loss is calculated.

The professional should acknowledge receipt of the Letter of Claim within 21 days of receiving it. They will then have three months from the date of acknowledgement to investigate the claim and respond.

  • Letter of Response: Once the investigations have been completed, the professional should send a Letter of Response. This will set out the answers to the allegations and whether the claim is admitted or denied.

Usually, further negotiations will follow between the parties, as they are expected to consider whether the claim can be resolved prior to any court action.

The Professional Negligence Pre-Action Protocol means that the average timescale for completing the pre-action phase is generally 4-10 months from the date of the Letter of Claim.

The correct measure of loss is to put you in the same position you would have been in had the negligence not occurred.

The level of damages can also be impacted by other factors. For example, you have a duty to mitigate losses and therefore you cannot recover damages for losses which could have been avoided by taking reasonable steps.

The professional may seek to argue that you have caused or contributed to the losses suffered. This is referred to as the defence of contributory negligence. That can result in the amount of compensation being reduced to reflect the relative share of blame.

The value of your claim can be a complex issue. We will advise you on this in clear and straightforward language.

There are deadlines by which different types of claims must be issued. The usual limitation period is six years from the date on which the professional was negligent. It may be possible to extend this period if the negligence only become apparent at a later stage. In such cases, the limitation date can be extended up to three years from the date you became aware of the negligence. This extension is subject to a 15-year-long stop date.

Once limitation has expired you will be ‘time-barred’ from bringing any claim. Limitation is therefore an important part of our investigations.

As experienced professional negligence solicitors, we will consider the professional’s ability to afford any claim at the outset. After all, there is little benefit in throwing good money after bad in pursuing a claim against an opponent with limited or no assets. Fortunately, professionals are often required by their regulator to have Professional Indemnity Insurance in place to protect against legal claims of this nature.

It may be appropriate to make a formal complaint prior to considering a professional negligence claim. Professionals are required to have a procedure for handling complaints, which they should make clear at the outset. However, it is important to be aware that the time limit for bringing a claim does not stop whilst you are going through the complaints process.

Our expert team can advise you not only on whether you have a potential claim, but on the best funding option to help you pursue it. Many people are deterred from bringing a claim because they worry about legal costs or are tempted simply to search for lawyers who exclusively offer ‘no-win, no-fee’ arrangements. We are experienced at providing a range of flexible options to ensure you can make the best choice for your situation and particular claim.

  • Family Legal Protection: Many people will already have legal expenses insurance as part of their household or motor insurance. Before progressing any claim, it’s important to check whether you have this and what the policy covers.
  • Standard hourly rate: This is where you fund the case from your own financial resources, rather than from any award that is given in the event of a successful claim. We will inform you at the beginning of the likely cost of your claim and keep you up to date if we think this estimate will change.
  • Conditional Fee Arrangement (CFA): This is the traditional ‘no-win, no-fee’ agreement, where a success fee is paid if you win your professional negligence claim.
Downie & Gadban Solicitors - Mark Robertson

Mark Robertson

SENIOR SOLICITOR

[email protected]
Tel: 01420 81270

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