When making a negligence claim against a solicitor it is important to identify as early as possible the key facts of the case. This will help you and your legal team to establish liability against the solicitor and identify the losses you wish to recover.

To assist you with this we have prepared a few short ‘Solicitors Negligence Claim Sheets’.

The claim sheets are a handy aide memoir and will help you to marshal the key facts of the case so they can be presented in a way that will best support your solicitors negligence claim.

If you are thinking about making a negligence claim against a solicitor and would like us to provide a free initial assessment of the legal merits of your case and its suitability for no win, no fee funding then please complete the claim sheet below and send it to us by post or email for review.

Every case is different, so please bear in mind that a ‘one size fits all’ claim sheet like this is merely a guide. Please feel free to add any additional information you think is relevant  to your case. And if you are not sure about what to put in a particular box then you can leave it blank and go on to the next section.

We are able to assist with making a claim against a solicitor on a No Win, No Fee basis, where the financial loss suffered as a direct result of the negligence exceeds £10,000, which is the current small claims court financial limit.

If you run into any difficulties when completing the form, please call our free legal helpline on 0333 888 0403.

Making a professional negligence claim against a solicitor, doesn’t necessarily involve alleging that the solicitor has been dishonest. Most negligence claims arise fro ‘honest mistakes’, without any suggestion that the solicitor has acted disingenuously. Case of outright dishonesty are relatively rare.

There is a popular picture that lawyers are strangers to the truth, always ready to give a false colouring to the facts and generally dissemble and equivocate, it doesn’t reflect the reality in my experience.

I am not going to say that all solicitors are whiter than white.  I once knew a solicitor who, because he couldn’t get his client to sign a witness statement by the deadline, photocopied the client’s signature from a letter and pasted it on the signature line.  He was inevitably caught out though when the client went in the witness box.  The barrister asked the client whether that was his signature (“yes”) and could he confirm the contents of the statement?  I am sure the solicitor in question must have invented facepalming at the instant his client said, “never seen it before in my life”.  True story.

But outright lying?  No.  Even setting aside the moral arguments, a solicitor is an officer of the Senior Court of England & Wales and our primary duty is to the Court.  As much as a client may think a solicitor is a “hired gun”, ruthlessly advancing their case at the expense of others, that is not the true position.  If a client tells his “brief” that he is guilty but then provides a ‘not guilty’ plea in court, the lawyer can no longer represent the client.  He cannot even dissemble or equivocate over it.

The reason this blog entry has come about is because of an enquiry I received this morning about making a professional negligence claim against a solicitor; and it was a tricky one.  I can see why the caller was cross, but ultimately he was expecting the solicitor to – how shall I say it? – ‘embrace the truth with frivolity’. He didn’t dress it up, the caller wanted to sue the solicitor.

We all know about care home fees – if you own a property but need to go into a care home, the local authority can sell your home and take the funds to assist with the cost of that care.  The property must belong to the patient for the local authority to lay claim to its value, so some people enter into a Trust Deed, giving their property to their nearest and dearest, usually the children.  If the purpose of that transfer though is purely to put the property beyond the reach of the local authority and to avoid those fees, then the transaction can be reversed; if there is a genuine reason for the trust being set up, then the trust cannot be undone and the value of the property cannot be touched.

The caller this morning was saying that his trust had indeed been reversed because when the Local Authority called for his solicitor’s file, an attendance note said that the purpose of the trust was to avoid care home fees.

Now obviously, I have not seen that note and I would be surprised if it was as unequivocal as that.  I would expect the note to contain, amongst other things, considerable advice from the solicitor about anti-avoidance remedies that a Local Authority has and to have advised his client accordingly.  But the caller was somewhat agitated that the solicitor had failed to cover up the real reason for the trust.

I can understand his frustration – he had clearly hoped to protect his monies to be able to leave them to his loved ones – but it surprised me that he genuinely believed that his solicitor should have been economical with the truth, possibly even going so far as to put “alternative facts” in his attendance note.

It is disappointing that lawyers have got such a bad rap for alleged dishonesty – I don’t know whether that it is a case of one bad apple spoiling the barrel or something we have inherited from our American cousins – but I am not sure who was more surprised about my conversation: me, because the caller thought a solicitor should lie to protect his client; or the caller when I told him “absolutely no way”.

If you require help with making a professional negligence claim against a solicitor, then call our free helpline on 0333 888 0403 or email us direct at [email protected]

 

The historic position – breach of the Solicitors Code was not sufficient in itself

It has long been established that to bring a negligence claim against a solicitor, you have to show that the solicitor acted in a way that no reasonably competent solicitor with similar qualifications and experience would have done.  It’s known as the Bolam test.  But how do you establish how a reasonably competent solicitor would have acted?

As readers will probably be aware, solicitors are governed by the Solicitors Regulation Authority who regularly update the “Solicitor’s Code of Conduct” – a guide to professional conduct within the profession.  The current edition is 2011 although there have been earlier ones, its predecessor being in 2007.  A leading judge has stated that the guide, “embraces the conduct expected of a normally careful and skilful solicitor by his or her own governing body.”

It is probably a surprise therefore to read that the judge went on to say, “I have, however, come to the conclusion that a breach of the Guide cannot ipso facto and of necessity be negligent.”

The facts in that case were rather distressing.  The Claimant brought proceedings via her daughter [G], against her former solicitors.  Mrs Johnson had been a longstanding client of the firm and so they knew her and her family very well.  Unfortunately, Mrs Johnson’s mental capacities deteriorated quite rapidly, unbeknown to G.  When G did find out, she also found out that all her mother’s savings and capital had been dissipated by her younger brother [A] in pursuit of “a secret and expensive indulgence, which, by its very nature… was too embarrassing for [G] to discuss.”  The solicitors were immediately contacted by G and A to obtain an Enduring Power of Attorney for their mother where Mrs Johnson’s mental capacity was discussed.

The first act complained of by the Claimant was that the solicitors – in breach of one of the fundamental principles of the Guide to Professional Conduct for Solicitors (as it then was) – did not check for themselves that Mrs Johnson had capacity to either instruct that such a document be prepared, that she had capacity to understand and sign such a document or check that it was validly executed.

The second act complained of was that subsequently, the solicitors accepted the brother’s instructions to sell some valuable land that belonged to Mrs Johnson.  Although the brother produced the signed Attorney, the solicitors failed to notice that the document made it clear that any decision had to be made jointly with his sister and happily accepted instructions from A only.  What they did notice though was that the document was undated and in a moment of misguided altruism, inserted the date themselves.

The inevitable happened. The land was sold (at an undervalue) and the money transferred to Mrs Johnson who gave three-quarters of it to her son.

Court proceedings were therefore brought against the solicitors for, amongst other things, failing to satisfy themselves that the instructions for the sale of the land were the wishes of Mrs Johnson and failing to satisfy themselves that she had capacity to give such instructions.  In both instances, the Claimant relied upon breaches of the Code which resulted in the Court concluding that, breach on its own could not be conclusive of liability for negligence.  There has to be something else.

The Legal Services Act

This case was decided in 1995.  Since then we have had the Legal Services Act and specifically s176 which says that:

“A person who is a regulated person in relation to an approved regulator has a duty to comply with the regulatory arrangements of the approved regulator as they apply to that person.”

In short, a solicitor is now under a statutory duty to comply with the Code of Conduct.

Once again though, this can cause uncertainty because there is still a range of acceptable conduct within the guide itself.  You only have to read the Code to see that there are now “objectives” to be reached based upon guiding “principles”.  So what happens in those instances?

The latest decision on negligence and breach of the Solicitors Code of Conduct

This was considered briefly in the Court of Appeal decision of Hollins v Russell & Others.  That case was actually dealing with the enforceability of conditional fee agreements (CFA) but the Court also gave guidance to costs judges where there were allegations that the CFA was unenforceable because of breaches of statutory provisions.  The details do not need to be set out here but the Court identified the problem above: the question of whether something satisfies a statutory regulation is one of degree.  Obviously, sufficiency will depend on the circumstances of each individual case but ultimately, it was concluded that conditions are met when there has been substantial compliance with what is required or at least, no material departure from it.

Again, that probably isn’t overly helpful from a solicitors negligence claims perspective, but fortunately, paragraph 107 of the judgment is.  The Court suggested that the following was the key question:

“Has the particular departure from a regulation … either on its own or in conjunction with any such other departure… had a material adverse effect either upon the protection afforded to the client or upon the proper administration of justice?  If the answer is ‘yes’ the conditions have not been satisfied.  If the answer is ‘no’ then the departure is immaterial and (assuming that there is no other reason to conclude otherwise) the conditions have been satisfied.”

So, can I sue my solicitor for breaching the Solicitors Code of Conduct? On the basis of this ruling, if a solicitor has failed to comply with the SRA Code of Conduct, then it will be considered a breach of statutory duty.

As for the Johnson case, the Court did ultimately find that the solicitors had been negligent.  There were too many markers that should have alerted the solicitors to the fact that all was not well – for example, the fact that the witness to Mrs Johnson’s signature was a registered mental nurse – and that whilst failure to check their instructions with Mrs Johnson herself was not, of itself, negligent, given the circumstances of the case, they had failed in their duty to protect her.

Can I sue my solicitor for breaching the Solicitors Code of Conduct on a no win, no fee basis?

If you have suffered direct financial loss exceeding £10,000 as a result of a solicitor failing to comply with the SRA’s Code of Conduct we will be happy to provide you with a free consultation and case assessment. And if the case has good prospects of success, we will go on to consider the availability of funding it on a no win, no fee basis.

The author of this article, Emma Slade, is a solicitor and partner in our professional negligence department, and specialises in solicitors negligence claims. For a free assessment of your claim please submit brief details by email to [email protected] or call us on 0333 888 0403.

Making a building defects claim? Use our handy ‘Building Defects Claim Sheet’

We specialise in building defect claims nationwide. To find out where you stand call our free legal helpline on 0333 888 0403 or send an email to [email protected]

If you wish to make a building defects claim then it is important to identify as early as possible the key facts of the case that will help establish liability and the losses you wish to recover.

To assist you with this we have prepared a short Building Defects Claim Sheet. It is a useful aide memoir and will assist you in marshalling the key facts so that they can be presented in a way that will best support your case.

If you are thinking about  making a building defects claim or simply want to know what your options are then we can provide you with an initial assessment of the legal merits of your case and its suitability for no win, no fee funding. Simply complete the claim sheet below and send it to us by post or email. We will then get back to you with our thoughts and recommendations.

Every case is different, so please bear in mind that a ‘one size fits all’ claim sheet like this can only a rough guide. You should therefore feel free to add any additional information that you think is relevant. And if there are any questions you are uncertain about then leave them blank and pass on to the next section.

We are able to deal with claims on a No Win, No Fee basis where the financial loss incurred as a direct result of the negligence exceeds £10,000 – the current Small Claims Court financial limit. Regrettably we cannot provide a free assessment of claims under this value.

If you run into any problems completing the form please call our free legal helpline on 0333 888 0403 and we will guide you through it.

We specialise in dealing with building defect claims and negligent survey cases nationwide. For further details of the services we offer call us on 0333 888 0403 or send an email to us at [email protected]

Click here to download the Building Defects Claim Sheet. This is an interactive PDF so you can so you can fill it in, save it, and simply email to [email protected], without the need to print or scan.

Following a divorce, Mrs Minkin negotiated a financial settlement with her husband without input from a solicitor.  She was a chartered accountant by profession so obviously knew her way around a spreadsheet or two and felt pretty able to understand what was going on.  Even so, she had a few doubts about it and took advice from a solicitor who suggested that maybe, the agreement wasn’t as fair as she had thought.  Even so, Mrs Minkin decided to continue with the settlement agreement.  She and her ex-husband lodged a Consent Order with the Court but it was rejected for drafting errors.  To assist with correcting the errors, Mrs Minkin instructed Landsberg t/a Barnet Family Law.  Her instructions were clear: please re-draft the order so it will be approved by the Court.  They did; it was; job done.

Mrs Minkin then had a change of heart and sued her solicitors for professional negligence.

She argued that Landsberg had been negligent for failing to advise her that the settlement probably wasn’t a good one for her.  The Court found against her.  Now setting aside the fact that Mrs Minkin’s instructions were very limited (“please re-draft the order”) and the fact that she had had previous advice on the suitability of the settlement, the Court also concluded that she was a “sophisticated client”.  She was an intelligent woman who had qualified and practised as a chartered accountant, she was well versed in litigation and she understood complicated legal concepts.  There were also copies of emails and other correspondence in the Trial Bundle which showed she had a good grasp of the issues and was clearly competent.  In other words, she did not need as much help, assistance and advice as someone with less familiarity with matrimonial litigation.

The court concluded that while a solicitor has a duty to give advice that is reasonably incidental to the retainer, that duty is dependent upon the character and expertise of the Client in question.  It is all fact dependent though.  An experienced business person will not wish to pay for advice for something  they already know; an impoverished client will not wish to pay for something that they cannot afford; an inexperienced client will expect to be warned of the risks which may be apparent to the solicitor but not to the client.

So what about my “sophisticated clients”?

Both clients are bringing professional negligence claims against their solicitor. And in both cases the defendants are arguing that the standard of legal advice they were required to give was lower because the clients were educated and knowledgeable – ergo the clients have no valid claim.

One of them is a lady who trained as a barrister, spent years in the industry as a practising solicitor and her correspondence was erudite and precise.  They say she did not need as much advice given about the prospects of settling a legal action.  Like an onion though, peel off the layers and you get a different story: she did a college course to be a barrister but never practised as one.  She then trained as a solicitor in the Middle East in an area of law that had nothing to do with litigation and for a total period of less than three years.  Her correspondence was littered with requests for legal advice and clarification.

The second is one is in my opinion even more tenuous.  She runs a publication company producing information directories.  Someone was trying to pass themselves off as being affiliated to her business and she wanted it stopped.  She instructed solicitors but no advice was given to her about obtaining an injunction or, importantly, that by delaying an application for an injunction her chances of getting one would reduce.  They claimed that she was an intelligent businesswoman and therefore they did not need to give her that advice, even though she has no previous experience of seeking an injunction.

In both cases, neither solicitor appears to have made any effort to establish the extent of their client’s knowledge and experience, or either discussed with them or let them know in writing that they would be limiting their advice.

I am sure that both my clients are flattered to be considered a ‘sophisticated client’, but in both instances, I think it would be a stretch to call them Minkin-sophisticated.  It is going to be interesting though, to see how the solicitors in each instance continue with their line of defence  Either way, I will continue to provide my sophisticated client or – given my argument – not-so-sophisticated client, a sophisticated service!

If you need expert guidance on making a professional negligence claim we will be happy to provide a free case assessment and details of No Win, No Fee funding. To speak to a specialist solicitor call 0333 888 0403, or email [email protected].

My surveyor has made a mistake, what can I do?

For guidance on surveyor mistake compensation claims contact our free legal helpline. Call 0333 888 0403 or email us at [email protected] with brief details of your claim.

Surveyors, just like any other professional, make mistakes. Sometimes the surveyor’s mistake can have far reaching consequences for their client and result in substantial financial loss. When this occurs you will probably want to think about making a legal claim for compensation. The aim of compensation is to cover the financial losses you have incurred as a direct result of the surveyor mistake. This may reflect the degree to which your property’s value has been diminished by the mistake or the cost of remedial works.

What type of surveyor mistake can I claim for?

There are a number of common mistakes that surveyors make. One particular category is ‘failure to warn’. This is where the surveyor has a duty to report to their client on the condition of a property but fails to identify a serious problem. This includes failing to warn that:

• a property has subsidence;
• there is a structural defect;
• the property has a damp problem;
• the property contains asbestos;
• there is dry rot; and
• it is affected by Japanese Knotweed.

Surveyors can also make a mistake in relation to:

• valuing a property;
• measuring a property; and
• failing to consider adverse rights affecting a property, such as a right of way.

How should I go about making a surveyor mistake claim?

If your surveyor has made a mistake then we would recommend that you seek immediate legal advice from a specialist solicitor. The solicitor will need to consider whether the mistake is likely to amount to ‘negligence’ in the strict legal sense of the word and what financial loss can be recovered.

Are there any time limits I should be aware of?

Yes. The standard limitation period is 6 years from the date of the surveyor’s mistake, or 3 years from the date you first discovered the mistake. However time limits are complex and professional advice should always be taken.

How we can help you with your surveyor mistake claim.

We specialise in surveyor negligence cases on a nationwide basis, and are proud of our track record of success.

Read how we succeeded in recovering compensation for a bad survey on a No Win, No Fee basis.

We operate a legal helpline which you can contact for a FREE case assessment. Call 0333 888 0403. Alternatively you can email us at [email protected] with brief details of your proposed claim.

No Win, No Fee funding.

We deal with surveyor mistake claims on a No Win, No Fee basis. We will assess the merits of your case and if it is suitable we will give you details of our No Win, No Fee option.

Don’t delay in bringing a tax avoidance scheme claim

If you are looking for solicitors who specialise in tax avoidance scheme claims then do not delay in contacting us for a free case assessment.

Following the flurry of media interest in the wake of the Paradise Papers, HMRC has responded by cracking down on so called tax avoidance schemes.

It remains the case that tax evasion is illegal whereas tax avoidance is not. However the line between the two is often blurred and can change from one day to the next depending on the interpretation of HMRC and the Courts.

A recent legal decision has highlighted the risk that tax avoidance schemes pose and the consequences for financial advisors, accountants and solicitors who provide negligent advice. The case also underlines the importance of bringing a tax avoidance scheme negligence claim before limitation expires.

The case in question is Halsall & Ors v Champion Consulting Ltd & Ors. It involved an allegation of negligent advice on a “charity shell” scheme and a “Scion” film scheme, both designed to avoid a liability to pay tax.

The claim succeeded on liability and on causation. This meant that the defendant’s had been negligent and their negligence had caused loss to be suffered. However the claim failed on limitation and was accordingly dismissed..

In summary, the defendant advised the claimants that the film scheme had a 75% chance of being successful, whereas the Court, having heard from an expert on that point, adjudged that the prospects of success were not more than 50%. As a result the claimants would have won the case but for the fact that the Court decided the claim had been issued too late. In other words the case had been brought out of time as the limitation date had already expired. The claim therefore failed completely.

There are two limitation periods that can apply to professional negligence claims. The first is six years from the date that you have a cause of action (i.e. the negligence that results in you having a claim) and the second is three years from the date that you have knowledge that you have a claim; whichever is later. Both limitation periods are subject to a maximum limitation period of 15 years from the cause of action. The three year period is designed to cover a scenario where a claimant may not know that they had a claim when the negligence initially occurred and provides them with the opportunity to pursue a claim, even if they are outside the standard six year period.

In the Halsall case, the claimants brought their claim after the six year period had expired, relying on the three year ‘date of knowledge’ period. Unfortunately for the claimants the Court decided that the three year period started before they thought it did. As a result their claim was brought too late and so failed.

The test for when the three year period starts to run is not straightforward and can turn on the facts of each individual case. The “date of knowledge” in this case was at the point at which the claimants knew enough for it to be reasonable to begin to investigate further. The claimants did not have to know for certain that the scheme would definitely fail. A claimant must simply know enough for it to be reasonable to investigate further. There needs to be something which would reasonably cause the claimant to start asking questions about the advice they were given. The Court concluded that as a result of correspondence from HMRC stating that they did not accept the claimants were due the tax relief sought and that HMRC had grounds to challenge both the losses and the relief claimed, the claimants knew enough for it to be reasonable to begin to investigate further, even if they did not know whether HMRC were correct or not.

The message that this case sends in relation to limitation and tax avoidance scheme claims is a straightforward one: It remains the case that as soon as a claimant thinks that they have a claim for negligence then they should get legal advice immediately. A claimant has a duty to take reasonable steps to try and mitigate their loss or, if possible, avoid any loss arising from the negligence. It is therefore vital to ensure that any professional negligence claim is brought in time and if necessary before those steps have been completed.

It may well be the case that the claimants entered into correspondence with HMRC to try and avoid or reduce their liability or to appeal or otherwise challenge the decision. However taking those steps, whilst they may have been necessary to mitigate loss, do not have any impact on the actual limitation date. The same message applies whatever type of professional negligence claim you wish to pursue. Get legal advice as early as possible.

You can read here an article we have written on tax avoidance scheme claims and the legal duties owed by an advisor to third parties.

We specialise in bringing tax avoidance scheme claims and offer a free case assessment service. Simply submit brief details of your claim by email to [email protected] or call us on 0333 888 0403.

We are often approached by worried people asking, “What can I do if my case is struck out by the court, and can it be reinstated?” Here are your options when disaster strikes:

We specialise in negligence claims against solicitors, dealing with cases that have been struck out due to a legal error nationwide on a No Win, No Fee basis. For a free assessment of your case call 0333 888 0403 or email us at [email protected]

What does it mean if a case is struck out?

The legal term ‘struck out‘ means that the case has been dismissed by the court and cannot be pursued any further. Unless the court agrees to reinstate the case it is the end of the line for that legal action. The consequences of this can be devastating. Not only will the party whose case it is be denied the opportunity of continuing with it, but they may also end up having to pay their opponent’s legal costs, along with their own.

Striking out can apply to a claim that is being made or a defence to a claim. If the claimant’s case is struck out then their claim is lost. If a defence is struck out then the claim can no longer be defended and judgement could be entered.

The court’s power to strike a case out

A court can strike out a statement of case under Civil Procedure Rules where it appears to the court that:

1. There are no reasonable grounds for bringing or defending a claim;
2. The case is an abuse of the court’s process or is likely to obstruct the just disposal of the proceedings; or
3. There has been a failure to comply with a rule, practice direction or court order.

A ‘statement of case’ in civil proceedings is a document in which a party sets out the facts of their case, detailing the merits of the case and the issues they intend to rely on in the legal proceedings.

A claimant’s statement of claim, the defendant’s defence and any counterclaim, are all statements of case. They allow the parties and the court to identify the issues in dispute and assist the judge in reaching an informed decision about the case.

Statements of case should be drafted to enable the parties and the judge to see the parties’ position on the issues in dispute. The document should set out the whole picture as concisely as possible.

The consequences of striking out

The court’s power to strike out a statement of case is a draconian one.

When a party’s statement of case is struck out their legal position in the proceedings is likely to be fundamentally and irreparably prejudiced. If they are a claimant it could mean that their claim is lost. If they are a defendant it could mean that their opponent will be able to enter judgment against them.

There are also important cost consequences following a striking out order. A party whose statement of case is struck out in its entirety is likely to be ordered to pay their opponent’s costs. In long running litigation these legal costs may amount to a considerable sum.

What you can do if your case is struck out

Where you have retained a solicitor to act on your behalf and discover that your case has been struck out you then you may wish to consider the reasons behind the striking out. If you find that your case has been struck out because of something your solicitor has done, or has failed to do, then you could well be entitled to pursue a claim against the solicitor for compensation for professional negligence. This will give you an opportunity of recovering your losses, which may include:

1. The value of the case that has been struck out;
2. The legal costs that you are ordered to pay to your opponent; and
3. Your own wasted legal costs.

We will be happy to review your case. We can offer guidance on pursuing a compensation claim against your solicitor and may be able to recommend steps that we can take on your behalf to reduce or limit the damage to your position.

If you are representing yourself as a litigant in person and have been threatened with an application to strike out then you may benefit from seeking urgent legal advice from a qualified lawyer.

No Win, No Fee strike out claims

If you wish to pursue a compensation claim against a solicitor because an error made by them has resulted in you suffering financial loss, then we will be happy to consider whether we can deal with it on a No Win, No Fee basis.

So, if your case has been struck out and you feel that your solicitor has been at fault then call our legal helpline for a free assessment of how we can help, and details of No Win, No Fee funding. Call 0333 888 0403 or email us at [email protected].

 

This article, ‘What can i do if my case is struck out, and can it be reinstated?’ was updated in March 2025.

A:         God only thinks he’s a doctor!

Apologies to all doctors out there, but in its awkward way this Christmas cracker joke makes my point for me: as much as we would like it to be otherwise, professionals are not as infallible as we, or they, would like to think.  Mistakes can be made, particularly when advice is sought on issues which are finely balanced.  In those instances, should a professional warn you that he could be wrong?  It would seem so.

The leading case on this is the 2001 Court of Appeal decision in Queen Elizabeth’s School Blackburn Ltd –v- Banks Wilson Solicitors (a firm).  In that case, the school (QES) had purchased property from their neighbour, C, that they intended to develop.  A clause was included in the contract that any new development was not to be “greater in height than the buildings now existing”.  Unfortunately, QES did not inform their architect of this clause and the drawings showed a building taller than C cared for.

In October 1994, one of the school governors (W) asked the school’s solicitor about the height restriction.  W told the solicitor that C had been querying it and had even attended the site for a meeting with QES.  The solicitor told W that he felt that the height restriction wasn’t to the roofline but to the height of the chimney pots.  In February 1995, he confirmed his view in writing and at a later meeting on site, the solicitor told W that there was a “strong argument” that the ridge line was not the height marker.  He was apparently asked whether he could “guarantee that his advice was correct” but the solicitor – as all good lawyers are wont to do – said that whilst “he had confidence in his advice… nothing was certain in litigation and he could give no guarantee as to how the court might view the matter.”

Unfortunately, discussions with C did not go well and to avoid any possibility of a breach, QES instructed their architects to amend their plans.  In so doing, QES incurred more expense, significantly more than they would have had done if, they argued, the solicitor had been more circumspect in his advice in October 1994.

QES therefore made a solicitors negligence claim for compensation.

At first instance, the judge dismissed the solicitors negligence claim on the basis that the solicitor’s advice was correct in law (although the Court accepted there was a risk that other courts might have taken a different view) and as a result the solicitor had not been negligent.

The decision was successfully appealed. Not only did QES disagree with the judge’s interpretation, it was clear from his remarks that the decision about the meaning of the height covenant was ambiguous, which even the solicitor seems to have accepted by the fact that he could not guarantee that his advice was correct.  Importantly, the Court of Appeal concluded that the solicitor knew there was likely to be a dispute with C over the clause and that there was a risk about the construction of the clause.  He should have been more circumspect in his advice in October 1994 and warned of the risk. Because he didn’t do this the solicitors negligence claim was successful..

There have been other cases dealing with this point, but the most recent one has been the Court of Appeal decision in Barker –v- Baxendale Walker Solicitors (a firm) which affirms its previous decisions.  In this case, the claimant (B) placed his company shares into a trust so that upon his death, the trust monies could be used for the benefit of his children.  The scheme was intended to avoid payment of Capital Gains Tax and Inheritance Tax but unfortunately, it failed in its intentions as it turned on the interpretation of a specific clause under the Inheritance Tax Act 1984: to avoid paying IHT, his children could not be “connected” with B but at what date was the connection to be taken?  The date the shares were transferred into the trust or the date of B’s death?  The defendants who had been promoting the scheme to B, argued that it was the latter.  They were wrong.

The Court took the view that the defendants had been marketing an aggressive tax avoidance scheme which ran contrary to the purpose of the Act.  Given that there has been a long history of litigation where courts have been reluctant to uphold artificial tax avoidance transactions such as this, BW should have given a significant health warning when promoting this scheme and to warn B that there was always a risk the scheme wouldn’t work they way they had hoped.

But should such health warnings be given all the time?  Surely it would undermine a client’s faith in their adviser if all advice given came with cautious caveats?  Lord Justice Sedley summed it up best:

“Clients, I know, want two inconsistent things. They want confident advice on which they can act, and they want cautionary advice about the risks of doing so. It is a solicitor’s unhappy lot to have to try to satisfy both requirements simultaneously”

Very true.

However, what is clear from the cases dealing with this is that all of them are fact specific and dependent on the facts of the individual case.

Secondly, the arguments for each side were very finely balanced and open to interpretation and the client should have been made aware of this.  It seems to me therefore that when giving advice, a solicitor (or other professional) should point out risks to any client and to urge caution.

Lawyer:            If you want my honest opinion…

Client:              I don’t want your honest opinion, I want your professional advice.

Enough said.

For free initial guidance on making a solicitors negligence claim, call us on 0333 888 0403 or email us at [email protected]

For a very long time, barristers had what is known as “immunity from suit”.  It was a policy decision that a barrister could not be sued for negligence.  One of the main reasons was that as a barrister is an Officer of the Supreme Court, their duty is owed primarily to the Court and secondly to their client.  It was considered that if a client could sue their barrister, this may cause a conflict of interest and the barrister may find it difficult to be completely honest with the Court for fear of being sued.

Over time, this immunity was chipped away until a House of Lord’s case in 2000 said it was time to lift that immunity. people expected the floodgates to open for claims against barrister’s whose advocacy skills were negligent, but that has never happened.

Although in theory you can bring a claim against a barrister for negligent advocacy in a criminal trial, there are still a number of hurdles to overcome, especially where a criminal conviction has been the result.

First and foremost is the fact that challenging a criminal conviction (which includes a plea of guilty) in a civil court is, put bluntly, an abuse of process.  A conviction will only have been imposed following due process of the law and bearing in mind that to prove a claim in the criminal courts, you have to prove it “beyond reasonable doubt” (whereas in the civil courts it is only “on the balance of probabilities”) asking a civil court to override a criminal conviction would bring the administration of justice into disrepute.  The only way a civil court will therefore entertain a claim for negligent advocacy in a criminal trial is if that conviction has either been successfully appealed or successfully referred to the Criminal Cases Review Commission.

Secondly, you then need to prove that the barrister was negligent; that they acted in a way that no reasonably competent barrister with similar qualifications or experience would have done.  And this presents two problems.

1. There is a standard joke in litigation: put four lawyers in a room and you get five different opinions.  No two lawyers will think the same or act the same.  This was summed up very well by Sir Thomas Bingham MR  in the case of Ridehalgh v Horsefield  when he said:

“Any judge who is invited to make or contemplates making an order arising out of an advocate’s conduct of court proceedings must make full allowance for the fact that an advocate in court, like a commander in battle, often has to make decisions quickly and under pressure, in the fog of war and ignorant of developments on the other side of the hill. Mistakes will inevitably be made, things done which the outcome shows to have been unwise. But advocacy is more an art than a science. It cannot be conducted according to formulae. Individuals differ in their style and approach. It is only when, with all allowances made, an advocate’s conduct of court proceedings is quite plainly unjustifiable that it can be appropriate to make an […] order against him.”

Was it an error of judgment?  Or negligence?  It is a fine line.

2. Added to this is the great obstacle that anyone claiming negligent advocacy in a criminal trial will face; showing that, with a better standard of advocacy, there would have been a different outcome.

“[t]he virtual impossibility of fairly retrying at a later date the issue which was before the court on the earlier occasion. The present case exemplifies the problem. It is over 12 years since the crime was committed. Recollections (of the participants and the lawyers involved) must have faded. Witnesses have disappeared. Transcripts have been lost or destroyed. Hayes may, or may not, be available to testify. Evidence of events since the trial will be bound to intrude, as it already has. It is futile to suppose that the course of the Crown Court trial can be authentically re-created.”

In short, it isn’t easy too sue a barrister for negligence in relation to advocacy in a criminal trial, particularly in cases where the original conviction came out of the magistrate’s court.  Unknown to many, the magistrate’s court does not record its proceedings so it is impossible to establish what was said, by whom and whether the advocacy was undertaken negligently or not.  Added to that, the Claimant runs the risk that the same conclusion will be reached by the latter court, albeit on alternative evidence that was provided in the original court.

So if you have been wondering, “Can I sue my barrister?” and you would like to know where you stand, then give us a call on 0333 888 0403 or send an email with details of your case to [email protected]