Pursuing complex, high-value clinical negligence and personal injury claims can be a challenge even for the most experienced solicitor. With the introduction of specialist panels, including the Law Society and Action Against Medical Accidents (AvMA) clinical negligence panels, victims of negligent medical treatment should receive a high level of expertise from an experienced solicitor dedicated to the interests of Claimants.
Dissatisfaction with the outcome of a case does not automatically mean that the solicitor has been incompetent or negligent. In a small number of cases however, a solicitor may produce a bad result for the client because of a failure to exercise the expected level of skill and expertise, as a result of which the client loses his or her case or recovers less than the proper value of the claim. In these circumstances an action might lie against the solicitor for professional negligence. If the solicitor's professional performance has fallen below the standard of expertise other specialist clinical negligence or personal injury solicitors would have applied to the case, the client may be compensated for his or her loss.
Cases can be under-settled because the solicitor has failed to investigate and quantify the client's losses and expenses, including care needs and any continuing loss of earnings or loss of pension, and a potential head of claim has not been advanced on the client's behalf. A case may have been abandoned because of the solicitor's failure to obtain all relevant medical records or instruct an expert in the right field.
The most obvious example of solicitor negligence is where a claim has not been issued in time in accordance with the limitation rules, or where an existing claim has been struck out or dismissed because it has become time-barred or the solicitor has failed to comply with a procedural deadline. As explained elsewhere on our website, although there are exceptions, claims for clinical negligence or personal injury must be issued within three years of the date of the treatment or accident or, in the case of an infant, within three years of reaching the age of 18 (i.e. before he or she reaches the age of 21). In certain circumstances, particularly in the context of medical treatment, it may be possible to commence proceedings (and protect the limitation position) three years after the client has "knowledge".
Unless an obvious error can be identified, for example where a deadline has been missed, establishing that the failure of a case is attributable to negligence on the part of the solicitor is not straightforward. Clients may be dissatisfied by the outcome of their claim or the investigation conducted by the solicitor. An expert, appropriate to the case and properly instructed by the solicitor, may have been unable to support a case. Although devastating for the client there may be no question of the solicitor having acted in anything less than competently. For this reason any investigation of a potential negligence claim against a solicitor will require a detailed analysis of the solicitor's files.
Where a claim can be brought, the client is entitled to be compensated for his or her loss and, so far as the law allows, the client will be restored to the position he or she would have enjoyed had the claim been investigated and progressed to a competent standard.
Barristers used to be entitled to immunity from actions against them for negligence when representing clients in court, but this was removed by a House of Lords ruling in 2000. Barristers can now be sued for negligence in connection with advocacy in Court as well as for negligent advice.
The conventional arrangement is that the solicitor instructs the barrister and there is no direct relationship between the barrister and the client. The Bar Council now permits direct access to barristers from the general public for limited categories of work, bypassing the solicitor. It is unlikely that barristers will accept direct instructions from clinical negligence or personal injury clients and, in any, event a barrister is under a professional obligation to refuse instructions if he or she considers it to be in the best interests of the client for the client to instruct a solicitor in the usual way.
The abolition of a barrister's immunity from being sued for negligence for work done in Court has not resulted in an increase of professional negligence claims and, in practice, claims against barristers are not going to be a regular occurrence.
If you would like to discuss a claim relating to lawyer negligence in confidence, please contact us for discreet and impartial advice.