As with other professions, solicitors’ conduct must conform with standards expected of them, otherwise they may leave themselves vulnerable to professional negligence claims if a client suffers loss as a result. These professional standards are set out at common law in England & Wales, which establish that solicitors owe a certain duty of care to their clients when conducting business.
Standard of care
At common law, duties of care have variable standards, depending on whether the person subject to a claim is a professional that should be subject to a higher standard. In the legal profession, a solicitor must conduct themselves with the level of skill and care of a reasonable person acting as a solicitor in the same circumstances.
Elements of a claim
In order to establish a claim, a claimant will have to show that:
- the solicitor owed the claimant a duty of care, in the form of a client relationship;
- through conduct that falls below the applicable standard of care, the solicitor breached their duty of care to their client; and
- the client suffered a loss as a result.
The calculation of damages owed to the claimant intends to restore the claimant to the position they would have been had the negligent conduct not occurred.
Where a claimant has conducted themselves in a manner which has exacerbated their loss, such as failing to disclose material facts to their solicitor, a court may find that the claimant has been contributorily negligent. Such a finding will mitigate the potential damages that the claimant can recover.
Negligence claims are subject to what is known as Pre-Action Protocol. These precursory steps before court proceedings commence are in place to encourage parties to reach settlement and avoid costly and time-consuming litigation.
Before proceeding to court action, a claimant must draft a Letter of Claim which outlines the particulars. The solicitor will have three months to respond and the parties will explore the prospects of settlement. If this method does not resolve the dispute, the claimant can proceed to have a Claim Form issued, which will commence court proceedings.
A claim against a solicitor for negligence is subject to a time limit of six years from the date the conduct giving rise to the claim occurred. An exception to this time limit is where the facts forming the basis for a negligence claim do not come to light until a later date. If this situation arises, a time limit of three years begins to run from the date such facts are known to the claimant.
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It is important to note that just because a professional does not achieve the outcome desired by the client it does not follow that negligence has occurred. If a claimant proceeds with a claim without proper understanding of the factual elements that are required to be established, they are at risk of covering the costs of losing the claim in court, including paying the defendant’s costs.
Being subject to a professional negligence claim can have serious repercussions for the reputation of a defendant, and so it is always advisable to contact a professional negligence solicitor if subject to a claim.
Lewis Nedas Solicitors have decades of cumulative experience in professional negligence matters, including action brought against lawyers. To speak with one of our Professional Negligence Lawyers, please contact us on 020 7387 2032 or complete our online enquiry form.