Professional Negligence solicitor, Emma Slade, comments on press reports about the rise in court action against lawyers for undersettled personal injury claims.

A recent article in the Law Society Gazette affirms what we, as professional negligence solicitors have long suspected: that claims against personal injury lawyers for professional negligence are on the increase because they are routinely under-settling accident claims.

There appears to be two main reasons for this: under-qualified staff and costs timetables.

A large proportion of injury claims are now dealt with by very junior ‘claims handlers’, many of whom have little or no formal legal training. Personal injury law has been de-professionalised to a significant degree, with companies spending vast sums on TV advertising campaigns to attract a high volume of accident claims that can be dealt with by an army of paralegals, working under the supervision of a single solicitor.

These injury paralegals are reliant on computer systems that enable them to process bulk claims in a routine, almost mechanical fashion. In many cases this is fine. However, because many of them are not legally qualified, mistakes can occur. They do not always understand why a particular course of action is being followed and do not always have the experience to know when a case calls for more specialist legal input.

Unqualified claims handlers can have particular difficulty understanding the significance of medical evidence. They are often unable to analyse or question the medical opinions expressed in the reports or identify where further medical evidence may be required, for instance from another medical expert in a different discipline. I am currently dealing with one professional negligence claim in which the personal injury lawyer did not appreciate the extent of the Client’s injury so failed to obtain an appropriate medical report. We reckon the client’s compensation claim was actually worth 10 times more than the figure she was advised to accept.

Some claims management companies also seem to be more concerned with how quickly and cost effectively a claim can be ‘turned around’, without necessarily striving for the best settlement for the claimant. Not all claims management companies are like this, but certainly those cases which we have dealt with suggest that undue speed in bringing a personal injury claim to a conclusion has led to the true value of the claim being missed and the case under-settled. Claims are being settled before the full extent of the injury is fully known and as the value of an accident claim is largely based on the severity of the injuries this inevitably leads to mistakes occurring and insufficient compensation being recovered.

Personal injury work is almost exclusively funded using conditional fee agreements (“no win, no fee”). This means the firm does not receive an income during the life of the claim and this can lead to some firms looking for a quick turnaround. The sooner the case is settled the sooner the costs can be recovered. Again, a quick settlement may suit many claimants but if claims handlers are too eager to settle the PI claim important legal points can be missed that will lead to the clients missing out on thousands of pounds..

We specialise in undersettled personal injury claims and will be more than happy to discuss it with you and advise you about bringing a professional negligence claim on a no win – no fee basis to recover the compensation that you have lost out on. Give us a call or send an email.

Solicitor, James McNally, looks at recent developments in mediation in professional negligence cases and civil litigation.

Lord Neuberger, the Master of the Rolls, has announced his support for a new pilot scheme within the Court of Appeal Mediation Service. The new scheme sees the automatic referral of appeals to mediation for claims worth less than £100,000, with judges open to recommend mediation for claims of any value where they feel it would be productive.

Mediation is now something that must be seriously considered by all parties engaged (or about to become engaged) in litigation: a view that was confirmed in the recent decision of Ghaith v Indesit [2012] EWCA Civ 642.

Mr Ghaith sued his employers for an accident at work. The value of his PI case was assessed at around £60,000. Indesit successfully defended the claim at trial but Mr Ghaith was given permission to appeal. Lord Justice Toulson recommended that both parties use mediation.

Although Mr Ghaith himself was keen to mediate, Indesit refused. They took the view that the legal costs were already more then the amount in dispute.

The appeal was successful. The Court of Appeal made it clear that Indesit were at fault for refusing to mediate and criticised their reasons for not doing so.

Lord Justice Longmore commented:

“This is an inadequate response to the Court’s encouragement of mediation, since a full day in this Court would inevitably result in a substantial increase in costs…Indesit’s reaction is all too frequent.”

Lord Justice Ward was also critical, making reference to Halsey v Milton Keynes General NHS Trust, one of the leading cases in relation to mediation.

In the Halsey case, Lord Justice Dyson had said:

“[the] factors which may be relevant to the question whether a party has unreasonably refused ADR (Alternative Dispute Resolution) will include (but are not limited to the following:

1. the nature of the dispute;
2. the merits of the case;
3. the extent to which other settlement methods have been attempted;
4. whether the costs of the ADR would be disproportionately high;
5. whether any delay in setting up and attending the ADR would have been prejudicial; and
6. whether the ADR had a reasonable prospect of success.”

LJ Ward added::

“It is not enough, as [counsel for Indesit] suggested, that there had been some attempt in the correspondence between solicitors to settle the case. The opening bids in a mediation are likely to remain as belligerently far apart as they were in correspondence but no-one should under-estimate the new dynamic that an experienced mediator brings to the round table. He has a canny knack of transforming the intractable into the possible. That is the art of good mediation and that is why mediation should not be spurned when it is offered.”

Refusing to mediate can result in a hefty cost penalty at the end of the case – see for instance PGF II SA v OMFS Company & Anor [2012] (where the offer to mediate was ignored) and Rolf v De Guerin [2011] (where the offer of round table discussions was repeatedly rejected with no reason being given.)

Mediation is not just restricted to the Court of Appeal. Local County Courts frequently make what is known as an “Ungley Order.” An Ungley Order will normally include the following wording:

“The parties shall consider whether the case is capable of resolution by ADR. If any party considers that the case is unsuitable for resolution by ADR, that party shall be prepared to justify that decision at the conclusion of the trial, should the judge consider that such means of resolution were appropriate, when he is considering the appropriate costs order to make.

The party considering the case unsuitable for ADR shall, not less than 28 days before the commencement of the trial, file with the court a witness statement without prejudice save as to costs, giving reasons upon which they rely for saying that the case was unsuitable.”

Costs sanctions are not currently automatic, but we are clearly heading that way. Over time, as the Courts become more stretched and funding becomes critical, the importance placed on mediation will grow.

Accordingly, an offer of mediation should be considered very carefully by all parties involved in a professional negligence dispute. If an offer of mediation is made then the potential costs consequences of unreasonable refusal should be spelled out. The refusing party should also be asked for the reasoning behind their decision.

Whilst there may still be uncertainty at the moment this is an area of law that is likely to rapidly develop. Any party considering entering into litigation (or already involved in it) should make sure that an offer to mediate – or take part in other suitable forms of ADR – is put forward at an early stage. If the invitation is rejected then the opponent’s decision to reject should be brought to the attention of the trial judge so that costs sanctions can be imposed, whatever the outcome.

Read more about this topic in our article on mediation in professional negligence cases and ADR.

Professional Negligence Solicitor, Lee Dawkins, reports on the Vibration White Finger Claims.

It is estimated that up to 60,000 coal miners in Britain are entitled to receive White Finger compensation for under settlement of injury claims involving the medical condition known as Vibration White Finger, or VWF.

Over ½ million miners have received Vibration White Finger compensation from British Coal Board and subsequent private mine owners under a special coal health compensation scheme.

The coal health compensation scheme was designed to compensate mine workers who contracted hand injuries as a result of using vibrating tools and vibrating work equipment.

However, it has been discovered that tens of thousands of those Vibration White Finger claims have been undersettled, resulting in professional negligence claims being brought by the miners against the solicitors who dealt with the VWF cases.

The negligent solicitors are being accused of failing to claim full compensation for “services” that the miners will require in the future as a result of suffering VWF.  These services include gardening and do-it-yourself (DIY).  The value of these services can be substantial, with the yearly loss mounting up over time.  Lawyers who represented coal miners in the original VWF cases estimate that the value of the future services claims can average up to £50,000.

Any miner or coal worker who feels that a claim for services was not pursued in their VWF case (or thinks that their Vibration White Finger claim was undercompensated) should call our VWF Professional Negligence Hotline on 0333 888 0403 for a free assessment.

We undertake all solicitors’ negligence cases involving VWF claims on a no win, no fee basis.  Under our special VWF professional negligence no win, no fee scheme we will fund all expenses and disbursements, which means there is nothing to pay up front.  It is a genuine no win – no cost arrangement.

And remember, we are professional negligence specialists.  Our lawyers have years of experience of dealing with professional negligence and solicitors’ negligence claims.  We also have a large personal injury department so our professional negligence lawyers are able to draw on the expertise of our personal injury team when bringing a professional negligence claim involving VWF negligence.

Our expertise and experience in the area of professional negligence and solicitors’ negligence has earned us widespread recognition and we are recommended by the influential Legal 500 Directory as one of the country’s leading professional negligence practices.

For a free assessment of your VWF claim contact us now on 0333 888 0403 or email Lee Dawkins at [email protected]

Professional negligence solicitor, Emma Slade considers an appeal court decision that seems likely to be fertile ground for professional negligence claims

The Court of Appeal’s controversial decision in Société Générale –v- Geys seems likely to cause huge confusion for employees and employers alike, with potential for a good sprinkling of professional negligence claims to boot.

Although the case itself was ostensibly about whether or not Mr Geys was entitled to a bonus payment of some €7.9m, the court spent considerable time working out the date his employment actually concluded.  Mr Geys claimed that the bonus payment was due during his notice period; the employers argued that it only crystallised after the date of termination of his employment.  As such, it was critical for the Court of Appeal to give consideration as to the “effective date of termination” (“EDT”).

In this particular instance, Mr Geys’ contract of employment allowed his employers to terminate his employment and give him a payment in lieu of notice (a ‘PILON’ payment as it is known).  Mr Geys was on holiday when his employment was summarily terminated.  He did not check his bank account so was not aware of any PILON payment and critically, his employers did not advise Mr Geys that this was indeed a PILON payment until after the bonuses had been called.

The Court of Appeal concluded that on a literal reading of the PILON clause, there was nothing in there that required the employer to give notice to the employee that it intended to exercise the clause.  Moreover, once the PILON clause was exercised and payment made, it had the effect of terminating the employment with immediate effect.

This case has resulted in three important principles:

• Only if a contract of employment has a PILON clause can a payment in lieu of notice be made.  If there is no such clause, a PILON payment will be in breach of contract and the EDT is at the end of the notice period.  This distinction will be important for calculating the limitation period in an Unfair Dismissal claim.
• If a PILON clause is effected, the EDT will be on the date the money is actually paid (not promised).
• Unless the contract of employment says otherwise, there is no obligation on the employer to tell the employee that this is a PILON payment and ultimately, it is up to the employee to work it out

It is this latter issue which is likely to cause the greatest confusion and likely to be the greatest potential cause of professional negligence.  This decision may still yet be appealed but either way, care must be taken in determining the type of payment that is being made to determine the limitation period. Mis-calculate a limitation date and a professional negligence claim wont be far behind.

Emma Slade is a specialist professional negligence solicitor. If you have a potential claim for negligence and would like to take advantage of our FREE case assessment offer then contact Emma now at [email protected] 

Emma Slade, a professional negligence lawyer, considers whether a solicitor can be negligent for being too cautious, or too optimistic.

Put three lawyers in a room and you will get four different opinions. At least that is the way the joke goes. But just because you get four different opinions, doesn’t mean that 3 of the solicitors have been negligent. Practising the law is not an exact science and a large element of it is entirely subjective. Some solicitors will be naturally more cautious and pessimistic, others more bullish and optimistic, but this does not mean that either view is wrong, let alone regarded as professional negligence – provided of course the law is right!

This was considered in the High Court case of Langsam –v- Beachcroft LLP & Others [2011] EWHC 1451 (Ch). Mr Langsam had instructed Beachcrofts solicitors to bring a claim against his former accountants. Beachcroft’s were doubtful about his prospects of success and so he settled the claim. Subsequently, he brought professional negligence proceedings against Beachcrofts on the grounds that they were “overly pessimistic” about the merits of his accountants negligence claim.

The Court dismissed the claim. Firstly, Beachcroft’s had obtained Counsel’s Opinion and whilst the Court found this was “conservative”, it was justifiably so as there were numerous hypothetical arguments which affected the value of the negligence claim. Secondly, they considered that Mr Langsam had been given sufficient information by Beachcroft’s to make an informed decision. Specifically, Beachcroft’s had written to Mr Langsam advising him of his prospects of success and that he would be likely to achieve a better settlement at trial. However, the Court found that Mr Langsam was keen to settle the matter before trial.

Ultimately, the Court concluded that different lawyers will have different views on the prospects of success of a solicitors professional negligence claim but so long as the those views are within a range that any reasonably competent solicitor would adopt, it means the pessimistic, as against the bullish solicitor (and vice versa) will not be considered negligent.

Emma Slade reviews the relationship between solicitor and barrister in the context of professional negligence law and asks, ‘Can a Solicitor Rely on Counsel?’

Explaining the difference between a solicitor and barrister is not easy. Most people liken it to the distinction between a GP and a Consultant. In this sense, a solicitor is similar to a GP dealing with a general practice whilst the barrister, like a Consultant, tends to specialise in an area and have more specific expertise. It is for this reason that solicitors will usually advise you to get an Opinion from a barrister at some point during any litigation.

But whilst a second opinion from counsel can be extremely helpful, it sometimes throws up a completely different view of the case and one which even your solicitor was not expecting. If this happens, is your solicitor negligent for simply accepting it?

The question was considered in the 1991 case of Locke –v- Camberwell Health Authority. In this case, Ms Locke brought proceedings against the Defendant for causing a disability in her right arm following a failed surgical attempt to rectify her angina problems. However, her barrister felt that her case had little prospect of success and was told to discontinue the negligence claim. The Court considered the duties of a solicitor in those circumstances and came up with three rules which were re-affirmed in the 1994 case of Ridehalgh –v- Horsefield.

1. provided a barrister is properly instructed, a solicitor can rely on Counsels Advice
2. if the solicitor does not have specialist experience in a particular field, then again, it is reasonable to rely on the advice
3. however, if after seeing the advice, a reasonably competent solicitor would feel that it must be “obviously wrong”, then he cannot blindly rely on the advice but must exercise his independent judgment and reject it.

It is rare to find an advice that is “obviously wrong” in legal terms. Usually the opinions differ as counsel has noticed something about the case which changes the prospects of success. But either way, the solicitor does need to make sure he is satisfied with the final advice.

For further guidance on the question, ‘Can a Solicitor Rely on Counsel?’ contact our legal helpline.

Pro Neg solicitor, Emma Slade, reviews limitation in professional negligence actions and the difficulties that can arise in identifying the key dates.

For a free consultation about suing a solicitor for missing a limitation date contact us by phone or email.

One of the most common types of professional negligence claim against a solicitor is where a limitation date has been missed. The Limitation Act 1980 sets out what the relevant limitation periods are and for negligence claims, there is a strict six year time limit from the date of the act of negligence (or three years from date of knowledge) in which to bring a claim. However, while this might seem simple enough, identifying the exact date that the negligence occurred isn’t always straightforward.

The case of Lane –v- Cullen Solicitors illustrates the problems that can arise in determining the key dates that determine the issue of limitation.

In this case, Mrs Eason died in 1997. She had made a Will in 1993 but it was subsequently found to be invalid and so she was considered to have died intestate. As a result, her estate was to be divided between her two brothers – John and Frederick Lane – and the two children of her late sister – Paul Hobson and Ann Hannah.

In 1998, Mrs Hannah commenced a claim against the estate, arguing that she had a right to the whole of the estate. Unfortunately, her Legal Aid was revoked in 1999 and so she was unable to continue with the claim. However, it was clear that John Lane, who had been appointed the Administrator of his sister’s estate, was aware that Mrs Hannah felt she had a greater interest in the estate.

By 2001, John Lane had finalised the administration of the estate and distributed it amongst the beneficiaries. Not long later, Mrs Hannah issued court proceedings again, claiming the entirety of the estate. In 2002, the Court ordered that she was in fact entitled to the whole estate and ordered John and Frederick Lane repay the legacies they had received the year before. Frederick failed to pay up and in 2005, the Court ordered that as Administrator, John was fully liable. John issued court proceedings himself against the solicitors who had been assisting him with the administration of the estate for professional negligence. This raised the issue of limitation.

John’s argument was that, although he had been aware of Mrs Hannah’s potential claim, it wasn’t until 2002 when the Court ordered that the estate belonged to her, that her loss actually crystallised. Until then, it had only been a mere possibility and so the correct date for limitation purposes was 2002. John therefore said that he was within time for making his claim.

His former solicitors countered that 2002 was the wrong date for calculating limitation. They successfully argued that the correct date was 2001. Prior to the distribution of the estate, John had sufficient monies to pay out any potential claims. It was only after he paid out, that his position was altered. In short, the solicitors should have warned him of the possibility that Mrs Hannah could still bring a claim and he should get formal confirmation from her that she did not intend to pursue the claim. As such, John had to pay up his brother’s share and because he was time barred, could not recover compensation from his clearly negligent solicitors.

It seems like a harsh decision for John but it is a salutary lesson on how difficult it can be to identify the relevant key dates when calculating limitation.

If you have been the victim of a missed limitation date or a missed court deadline and would like to bring a claim for compensation on a No Win – No Fee basis, then call our FREE helpline today on 0333 888 0403 or send us an email with details of your case.

Negligent RICS survey: Professional negligence solicitor, Emma Slade, looks at the new RICS Condition Report and how this may impact on negligence claims against surveyors.

Contact us for a free consultation about making a negligence claim in respect of a RICS survey by calling us on 0333 888 0403 or sending brief details of your claim to us at [email protected]

To date, there have only been three types of property survey that a home buyer can obtain:

• a full structural survey (FSS);
• a HomeBuyers survey; or
• a plain valuation.

The HomeBuyers survey was introduced by the Royal Institute of Chartered Surveyors (RICS) to bridge the gap between a FSS and a plain valuation – the FSS being an expensive and time consuming option, while the valuation gives no indication of the state of the property.

However, the HomeBuyers Report has attracted criticism for being relatively limited. They simply give an assessment of the condition of the main parts of the property and include the occasional recommendation.

This has set the RICS development team thinking and their response has been to introduce another form of property survey report: The RICS Condition Report, also known as a Level 1 Home Survey.

Like the HomeBuyers Report, the RICS Home Survey provides an assessment of the condition of the property, but it will also comment on:

• The construction and condition of the property at the date of inspection;
• Any defects in need of urgent attention;
• Any serious defects;
• Things that need further investigation to prevent serious damage to the property;
• Recommendations about likely contamination or environmental dangers;
• Potential issues that a legal advisor should consider; and
• Defects that could be considered a safety risk.

It will be interesting to see how the new report is received and what effect it will have on the number of claims for a negligent RICS survey.

If you require guidance on making a negligence claim against a surveyor or help with a negligent RICS survey then call our FREE professional negligence helpline on 0333 888 0403 or email us at [email protected]

Professional negligence claims for negligent Wills are on the rise.

Will Writers Branded Rip Off Cowboys – Solicitor, Lee Dawkins, reviews the Legal Ombudsman’s report on the dangers of unregulated will writers and the implications this has for professional negligence claims and negligent wills.

The Legal Ombudsman has warned that thousands of ordinary consumers are being ripped off by unregulated will writers.

The Chief Ombudsman, Adam Sampson, has demanded that action be taken to ensure that consumers are not left vulnerable to unregulated legal services.

He warned of the perils of engaging the services of will-writing firms who aren’t regulated.

“Because of this, customers are left with little means of redress when things go wrong.

“We’ve seen similar confusion about claims management companies, with lots of consumers believing they’re getting a legal service even though most of the work is carried out by a non-authorised person. Again, we can’t help.”

‘Unregulated cowboys’ The legal ombudsman can only act in respect of complaints against solicitors.

The consumer organisation, Which? has been equally critical, along with the Law Society; both calling for more protection for consumers.

The chief executive of the Law Society said there was a gap in regulation which allows ‘unregulated cowboys’ to operate in areas like will writing.

This is damaging to consumers, he explained ‘because the unregulated providers are not insured, do not provide a compensation fund and are not covered by the Legal Ombudsman’s scheme for consumer redress.’

The Ministry of Justice has confirmed that will writing is an important issue and welcomed the ombudsman’s report.

The irony is that the ‘cowboy’ will writers often charge more for their services than lawyers, seeking to take advantage of the unwary by charging add on for things like storage, which most solicitors provide for free.

Professional negligence solicitors are seeing an increasing number of negligent will claims being made against will writers, but the lack of insurance is a very worrying issue.

Head of professional negligence at Slee Blackwell Solicitors, Lee Dawkins believes that if the unregulated will writers are allowed to go unchecked then many innocent victims of their incompetence are going to be left entirely without redress.

‘If a will is negligently prepared by a solicitor then the claimant will at least have the peace of mind of knowing that there will be an insurance policy in place that will compensate them for their losses. However there is no such guarantee with the ‘here today, gone tomorrow’ will writers. We are storing up problems for the future here and I would agree that action needs to be urgently taken.’

We specialise in dealing with professional negligence caims for negligent Wills and negligent estate administration. Contact us for a free case review and details of No Win, No Fee funding.

 

This article on professional negligence caims for negligent Wills and negligent estate administration was updated in September 2024.

Professional negligence solicitor, Emma Slade looks at conveyancing solicitors negligence, examining the pitfalls of joint ownership and the important legal distinction between a Joint Tenant and a Tenant in Common.

There seems to be a natural presumption between cohabitees that, when they purchase a property, their contributions to the purchase, running and maintaining the property will be properly reflected in the division of funds when they split up. Unfortunately, the law is not quite so simple. There is a plethora of case law which has dominated the last forty or so years, in which judges have attempted to come up with sound and fair guidance on how to deal with this sort of situation. It would not be unfair to suggest that this effort has not been entirely successful.

But the uncertainties of the complex case law can largely be overcome if the matter is properly discussed between the parties when they purchase the property, with their solicitor playing a key role in this.

Conveyancing solicitors tend to send a standard letter to their clients at the outset of a conveyancing transaction, asking the client how they want to hold the property. Joint tenants? Tenants in common? The letter will probably go on to explain the difference between the two. Very simplistically, if the property is held as joint tenants, there is an automatic right of survivorship so if one party dies, the property goes to the survivor. If held as tenants in common, the property is held in stated shares and on death the owner’s share in the property will pass in accordance with their Will.

Many cohabitees purchase property when their relationship is strong and sound; neither of them anticipate (or want to anticipate) the possibility of the relationship breaking down. Desiring to do the best for their loved one, they tend to plump for holding the property as Joint Tenants. Unfortunately, what the ‘standard letter’ from the conveyancing solicitor tends not to explain is that if the property is held as joint tenants, even if there have been unequal contributions to the purchase price, if the parties break up, the proceeds of sale will be split 50-50.

Some solicitors may go a bit further in their ‘standard letter’ and explain about having a formal declaration of trust between the parties to reflect any unequal contributions but I am afraid to say that in my experience, by the time the Client has waded through all the legalese, the eyes have glazed over and they just hope the solicitor will act in their best interests.

After all this, if there is a problem at a later stage, is the solicitor negligent? The solicitor will probably point to the ‘standard letter’ and say that he has given the advice, but is this ‘standard letter’ sufficient?

Not really, no.

Although the solicitor may have explained the difference between a Joint Tenancy and Tenancy in Common and may even have raised the possibility of a Declaration of Trust, I believe this is insufficient. Indeed, ‘The Conveyancing Handbook’ – the conveyancers’ bible and the standard by which a reasonably competent conveyancing solicitor will be judged by – says:

• “The solicitor should explain the different methods of co-ownership to the clients in language appropriate to their level of understanding”
• “[The solicitor] should advise as to the most suitable type of co-ownership to meet the particular situation”
• “It may be necessary to advise each party independently about their rights in the property to be purchased”
• “If there is evidence that the purchase is a joint acquisition….the client(s) should be advised….to record their arrangement in a trust deed”

The solicitor’s duty goes above and beyond simply sending a standard letter. The solicitor should be providing tailor-made advice to both clients, independently, about how the property should be held and, particularly in situations where there are unequal contributions, should be discussing the possibility of a Declaration of Trust to set out the arrangements. Importantly, the solicitor should be having an eye to the future and what will happen if (or, more cynically, when) the parties split up in the future.

If you are looking to make a conveyancing solicitors negligence claim or pursue a complaint against a conveyancing solicitor, we can help you make your claim.