Professional Negligence – Can I make a claim against my solicitor?

Clients decide to instruct solicitors for a variety of reasons but in all cases a high level of trust is instilled in the instructed solicitor. Although poor service alone is unlikely to give rise to a negligence claim, where a solicitor’s failing or mistake has caused a loss for the client then there may be grounds for a professional negligence claim whereby a client can seek damages.

Examples of common professional negligence claims against solicitors include, but are not limited to:

• Missed limitation dates
• Incorrect drafting of legal documents
• Under-settling claims
• Missed court deadlines
• Issues with conveyancing e.g. incorrect searches or a defective title

What is professional negligence?

Professional negligence occurs when a professional person or body fails to perform to the standards reasonably expected of them. There is a duty for professionals to exercise reasonable skill and care. This is the case when a person is instructed to perform professional services under a contract between parties. Where this duty has not been met, a client may be able to bring a claim. A professional may therefore owe a duty in either contract or tort, and occasionally both.

In order to make a claim for professional negligence, a Claimant must be able to prove: a) that a duty of care was owed; b) that this duty was breached; c) that a loss occurred; and d) that the negligent act caused the loss. When establishing whether a loss was caused by a solicitor’s negligence, a court will often apply the ‘but for’ test. Essentially this questions whether the loss would have occurred ‘but for’ the negligent act. If the loss would have occurred regardless of the solicitor’s actions or omissions, then the court is likely to decide that those  actions or omissions were not causative of the loss and so the claim would fail.

How much can I claim?

Claimants are expected to mitigate their loss when it comes to professional negligence claims. This means that Claimants should take steps to limit their losses and try to prevent any further losses. When awarding damages, the general aim is to put the Claimant in the position they would have been had the negligent act or omission not occurred. It is rare for professional negligence damages to include awards for pain, suffering or loss of amenity.

Are there time limits for bringing a claim?

There are time limits for bringing a claim for professional negligence and these are outlined in the Limitation Act 1980. A claimant will be time-barred from bringing a claim for losses beyond the deadlines stated in the Act unless circumstances meant that it could not have issued a claim sooner.

There is a deadline of six years from the date of breach for contractual professional negligence claims, and a limitation period of six years from the occurrence of damage for tortious claims. This is known as the ‘primary limitation’ period.

‘Secondary limitation’ may also apply and in such instances, there will be a deadline of three years from the date the claimant acquired knowledge of the breach. However the claim will be subject to an overall longstop deadline of 15 in any event. Secondary limitation dates can be complicated to establish, and you should seek advice if you are unsure if your claim is time-barred.

How can Ellis Jones help?

If you believe that a solicitor you have instructed has acted negligently, our Commercial Litigation team have experience of dealing with professional negligence matters and would be delighted to assist. Should you wish to discuss this further, please do not hesitate to contact our Commercial Litigation team on 01202 525333 or email henrietta.frew@ellisjones.co.uk.