Professional negligence claims the basic procedure and practical points
It is a sad but unfortunate fact that making mistakes goes with the territory in most professions. A mistake will invariably involve a claim for negligence where you have been provided with advice or your professional has failed to provide advice to you. You then relied on that advice, or relied on not having been given that advice to your detriment, and suffered a loss as a consequence. The irony is that the client who has suffered a loss as a result of negligent advice from one solicitor will then have to seek advice from another solicitor who will be unknown to them.
What happens once you have found a solicitor? Your solicitor and you should have a meeting about the case and extract all necessary background information from you together with documentation which supports the claim. This supporting information will include eg invoices for fees incurred to date from your previous solicitors, surveyor, barrister or other expert and all correspondence. If you are intending to bring a claim against another solicitor and you have the complete file this is important evidence that needs to be reviewed, if not it can be requested from your previous firm. Do also remember to bring any invoices that are evidence of losses arising from the negligence which you believe to be recoverable. Do note there are limitation periods for such claims and you will be advised if limitation could be a potential defence to any action you are intending to bring.
Some claims can run into many thousands of pounds and litigating a claim is not always straightforward especially as most cases of this nature are dealt with by the negligent party’s insurers. The author has dealt with a negligence claim recently involving a collective claim for the freehold acquisition of a large block of flats in central London, by the tenants. The transaction was badly managed by their original solicitors. The consequence was that the tenants were not able to acquire the freehold of the entire property and its ‘appurtenances’ eg garages etc. When the mistake was discovered it then became necessary to unravel the extent of the negligence and the financial consequences / losses for the tenants. This took some time because it involved appointing an expert surveyor to consider the value of the property both with and without the remaining parts of the property which the tenants were not able to acquire. The difference between the two figures was part of the negligence claim together with the professional fees. That claim was substantial.
When you have worked out the various elements of your claim it is vital to set out the details of the claim in a ‘letter of claim’ to the negligent party. This is an obligation under the pre-action protocol for professional negligence claims and the timescale which applies to responses etc, must be complied with. This letter will form the basis of your claim so it is critical that adequate time and thought is put into it. It is standard practice to invite the recipient to alert their professional indemnity insurers that a claim is being made. If the letter of claim is prepared properly it should be possible for the insurer to take an early view on the matter, and if appropriate, to accept liability. This is not unusual where the negligence / claim is clear cut, but the initial letter has to provide a realistic figure which is not bloated with unsustainable claims. Considerable time and legal expenses can be saved by getting this stage right. A realistically pitched letter of claim is also more likely to be considered favourably by the negligent party / their insurers.
If liability is accepted then it is simply a matter of proving the losses and negotiating the claim with the insurer. This can be done in the course of correspondence between solicitors. If that does not work a mediation can usually conclude the matter if all the parties are present including a representative of the insurer who will hold the purse strings. Mediation is a cheaper alternative to court proceedings and can be successful in producing a settlement. While the mediation process is ongoing it is common to agree that the court proceedings will not be issued, this is called a ‘standstill agreement’. If mediation does not produce a settlement, court proceedings will be necessary. The subject of court proceedings and the various stages involved in that process could easily fill another page, but that is for another time!
If you would like further information please contact Sinead Lester.