Making a solicitors negligence claim

In this instalment of Emma Slade’s entertaining professional negligence blog, Emma looks at a solicitors negligence case that didn’t end well for the claimant. If you would like Emma to assess the merits of your solicitors negligence claim to ensure that you do not encounter similar problems then contact us for a free review. Call us on 0333 888 0403 or email us at [email protected] for a FREE case assessment and details of No Win, No Fee funding.

I used to watch Laurel & Hardy re-runs as a kid. Those black and white movies featuring the hilarious comic duo, made so much better as you could easily foresee what disaster was going to befall them. “The Music Box” was a particular favourite, with the pair trying to deliver an expensive piano up a large flight of stairs in yet another slapstick adventure. You just know the piano is going to fall back down the stairs and you are pretty sure there is an easier way to get the gift delivered to the premises. It is that sort of premonition I had when reading about the solicitors negligence case of Khanty-Mansiysk Recoveries Ltd –v- Forsters LLP which has recently been decided by the Court of Appeal.

I literally winced when I started reading the case. So much so that I had to go back and get a copy of the High Court judgment as well just to see if it was as obvious as I was seeing it.

Forsters LLP (F), a firm of solicitors,  were instructed by a company, Irtysh Petroleum plc (Ir) in relation to the purchase of shares in a Russian company which had an oil exploration licence in the Khanty-Mansiysk region of Russia. Between January 2007 and June 2010, F acted for Ir in the transaction and ultimately sent Ir an invoice for “professional services” for the period “January 2007 to June 2010”. Ir did not pay the invoice as it disputed the amount charged. F eventually issued proceedings against Ir and one of its directors who had given a personal guarantee for the costs. Ir entered into negotiations with F whereby an agreement was entered into.

It was the terms of the agreement that led to my Laurel & Hardy moment. Here are the main ones:

“2.1 This Agreement and the terms set out herein shall be in full and final settlement of all or any Claims which the Parties have, or could have had, against each other (whether in existence now or coming into existence at some time in the future, and whether or not in the contemplation of the Parties on the date hereof)… “

“Claims” was defined as follows:

“… any claim, potential claim, counterclaim, potential counterclaim… whether known or unknown, suspected or unsuspected, however and whenever arising in whatever capacity or jurisdiction, whether or not such claims are within the contemplation of the Parties at the time of this Agreement arising out of or in connection with the Action or the invoice dated 1 July 2010 addressed to [Irtysh] by [Forsters] and referred to in the Action”.

Please tell me you can see what is coming! In 2015, Ir went into liquidation and KMR bought Ir’s claims against F from the liquidators. KMR then brought a solicitors negligence case against F as it turned out that F had apparently failed to ensure that, when Ir purchased shares in the Russian company, there was no enforceable obligation on the seller to transfer the shares to Ir and the shares had never actually been transferred to Ir! The damages claimed were in excess of £70M. F immediately referred to the settlement agreement and said that KMR could not sue them. Even though no-one had realised F had been negligent at the time of entering the agreement; the definition of Claims included all those “whether known or unknown, suspected or unsuspected”.

KMR tried relying on BCCI –v- Ali . I don’t want to ramble on too much but it is worth looking at. In brief, Mr Ali had entered into a compromise agreement with BCCI following redundancy. A year later, BCCI went into liquidation as a result of corrupt management, such corruption stigmatising former employees in finding new employment. In 1998, the House of Lords decided that a claim for “stigma damages” was a legally permissible claim, albeit not previously seen in English law. Mr Ali wanted to claim “stigma damages” even though his compromise agreement stated that no claims could be brought. In that case, the Court decided that it “should be very slow to infer that a party intended to surrender rights and claims of which he was unaware and could not have been aware”. As “stigma damages” were a new phenomenon, it couldn’t have been in the parties contemplation at the time of the agreement, so Mr Ali wasn’t bound by it.

However, when it came to this case, both the High Court and Court of Appeal disagreed with KMR’s argument that Ali applied. Whilst the compromise agreement between F and Ir dealt with the issue of F’s fees, it was clearly intended to go a lot further than that as it specifically referred to “unknown” claims and those “not in the contemplation” of the parties. It was a clause that had been drafted very widely and, unlike Ali, a claim for professional negligence is not a new area of law that could not have been known about at the time.

So the solicitors negligence case was thrown out and I am truly not surprised. As far as I can see, the settlement agreement was absolutely clear: Ir could not sue F for anything that they may or may not have done between “January 2007 to June 2010”. What I can’t understand though is the thinking behind such a wide clause. Surely someone could have foreseen this to be a problem and specifically excluded negligence? Clearly not. But then we get to the ironic part. KMR aren’t going to be able to sue the solicitors who drafted the agreement for Ir. As I mentioned above, Ir are in liquidation and so the right to any such claim vests in the liquidators. KMR had already obtained an assignment of Ir’s claim against F and I suspect they paid a pretty penny to get those rights. Can they afford to do it again? And so, you can understand why I winced at the Laurel & Hardy-esque type scenario as I read those judgments, moreso when I realised the ending. Only one thing to say: “that’s gotta hurt!”

If you have been the victim of solicitors negligence and would like to know whether you are entitled to bring a claim for compensation call our specialist team on 0333 888 0403 or email us at [email protected] for a FREE case assessment and details of No Win, No Fee funding.

Professional negligence solicitor Emma Slade looks at a question we are often asked, ” Can I sue my solicitor?’

There aren’t many responses to a solicitors negligence claim that would cause me to do a double-take, but when I read a Letter of Response this week and saw what the Defendant was trying to argue, it made me blink.  Twice.

For those not already “in the know”, a Letter of Response is a stage in the Pre-Action Protocol for Professional Negligence where the defendant sets out why they believe the claim against them is unlikely to succeed: A ‘Defence’ in other words

In this particular instance, I had written a Letter of Claim to the Defendants (D), who are a firm of solicitors, saying that my Client (C) had instructed them to see whether or not C had a claim.  There was some urgency about C’s request as they were concerned that a former employee had stolen some valuable information belonging to C and was trying to profit from it.  Unfortunately, D sat on the matter for a considerable period of time before doing anything and by then, the damage had been done.  I was therefore saying that D had been negligent in failing to act swiftly after they were instructed and so the loss my client suffered was their fault.

Even though there is correspondence on D’s file confirming that they would “advise on merits” of the claim, the two-blink inducing response was that they did not consider themselves “formally instructed” by C until they had sent out their Client Care letter some seven months later.  As a result, they said they did not owe C any legal obligations (a ‘duty of care’ as lawyers call it).  Because a Defendant cannot be considered negligent unless they owe a ‘duty of care’ D said that our claim was unfounded.

In over twenty two years of practice, I have yet to receive a Letter of Response which goes along the lines of ,“Oops, terribly sorry. We got it wrong. When do you want the cheque?”  Defendants defend, its the natural response, even when they have to clutch at straws, but I certainly didn’t expect this defence.

Why is that? It would appear logical that until a solicitor sets out the terms of their retainer, a contract hasn’t been established, so the solicitor doesn’t owe the client a duty of care.  But can that be right?

Put simply, no.

If we look at contract law, whilst it is ideal to have a written contract (or in this instance, Terms & Conditions of Business), it is not critical.  The Courts will look at the actions and intentions of the parties.  This was established as a legal principle as far back as 1885 in the case of Bean –v- Wade but can be summed up by saying that a contractual retainer may arise:

“In a situation where the parties act as if the relationship of solicitor and client existed, although there is no express agreement to that effect, the court will readily hold that there is an implied retainer to be inferred from the parties’ conduct.”

But what about in tort?

In the 1990 case of Caparo –v- Dickman, the House of Lords, set out a three stage test:

(i)               Could harm be foreseeable if the solicitor did not take care?

(ii)              Did the parties have a sufficiently close relationship (proximity)?

(iii)             Is it fair, just and reasonable to impose that liability?

In each of those instances, I would say “yes” so far as my case was concerned.  C had gone to D for advice and given the facts of the case, if D did not act with reasonable speed, C’s case would be prejudiced.  C made it clear that they were going to rely on the advice and given that D offered to obtain the evidence and “advise on merits”, I think that any Court would say that it was ‘fair, just and reasonable’ to impose that liability.

But that isn’t the only case I am relying on.  I could start citing cases like Hedley Byrne –v- Heller or Customs & Excise –v- Barclays Bank which make it clear that a duty of care is owed when one of the parties assumes a level of responsibility, but there is a more recent case I have plumped for: Burgess –v- Lejonvarn which is a decision out of the Court of Appeal in 2017.  In that case, an architect provided her services free of charge and so claimed she did not owe the claimants a duty of care.  The Court disagreed and said:

“the fact that the services were gratuitously provided did not mean that they were informal or social in context and the services were all provided in a professional context and on a professional footing.”

Accordingly, the architect owed the claimant’s a duty of care.

Once I got over the eye-blinking trauma, I drafted a lengthy letter to go back to the Defendant, citing all of the above and inviting them to concede that, in the circumstances and in light of the case law, they did in fact owe a duty of care to my client when they agreed to “advise on merits”, rather than when they sent out their retainer letter.

I’m rather looking forward to seeing how they respond now. It could be interesting.

How we can help you to sue your solicitor

Emma Slade is a solicitor and partner in our professional negligence department who specialises in bringing negligence claims against solicitors on a no win, no fee basis. She offers a free consultation service, so if you would like to know if you can sue your solicitor, then find out by sending brief details of your case to us by email at [email protected] or calling us on 0333 888 0403.

Making a dental negligence claim for having the wrong tooth extracted

To make a dental negligence claim for wrong tooth extraction on a no win, no fee basis contact our free legal helpline on 0333 888 0403 or email us at [email protected]

The dental profession has for some time been committed to reducing the risks associated with dentistry, with an increased emphasis on improving patient safety.

Even with the most stringent safeguards in place, dental negligence is unlikely to ever be eliminated altogether. However dentists do recognise that relatively simple steps can be taken to materially reduce the risk of it recurring.

According to a report in the British Dental Journal (BDJ) one area that has been identified as requiring urgent improvement is the problem of dentists extracting the wrong tooth.

The term ‘wrong tooth extraction’ is used to describe situations where a dentist has the patient’s consent to remove a particular tooth (one that may be infected or beyond repair) but goes on to remove another tooth; one which is perfectly sound and healthy.

The full extent of the problem in the UK is unknown, but it is clearly a serious issue for the dental profession and gives rise to a significant number of dental negligence claims each year.

In a bid to reduce the incidence of wrong tooth extraction dental experts have highlighted a number of safeguards that can be relatively easily and inexpensively implemented.

This includes the provision of professional educational programmes alongside risk reduction procedures such as checklists, the clear marking of surgical sites,  the use of patient assisted identification and the implementation of patient safety guidelines.

According to the BDJ report, the factors which increase the risk of wrong tooth extraction include:

• suboptimal checks and/or cross checking of relevant clinical information,
• unclear diagnosis,
• unclear documentation,
• ambiguity regarding notation of molar teeth,
• orthodontic extractions, and extractions where there are multiple carious teeth and
• extractions in the mixed dentition.

With improvements in professional education and the implementation of risk reduction measures it is hoped that the problem of wrong tooth extraction will diminish.

Patients who have suffered the ordeal of wrong tooth extraction and wish to know where they stand legally may contact our free legal helpline on 0333 888 0403 or email us at [email protected] for a free case assessment.

What can I do if my dentist has made a mistake?

If your dentist has made a mistake then get in touch with us for a free case assessment. Call 0333 888 0403 or email us at [email protected]

Private and NHS patients alike are entitled to receive a good standard of treatment from their dentist. Very occasionally however, mistakes are made and patients suffer as a result.

This includes cases where a dentist extracts the wrong tooth, causes nerve damage or incorrectly administers anaesthetic.

Dental mistakes occur during both routine treatment and more specialist procedures involving root canal surgery, wisdom teeth and dental implants. Dentists can also let their patients down by failing to make a correct diagnosis in relation to gum disease, oral cancer and periodontal disease or by misinterpreting X-Rays.

When dental treatment goes seriously wrong the patient may be entitled to claim compensation for dental negligence.

We offer a nationwide  no win- no fee dental negligence claim service and operate a very popular free legal helpline.

Victims of dental negligence can call us on 0333 888 0403 and speak to a lawyer specialising in medical and dental negligence claims.

If we feel that your dentist has not used an acceptable level of skill and care in carrying out the treatment and this has resulted in injury then we will consider the legal steps open to you, including making a claim on a no win – no fee basis.

We can also make arrangements for an independent dentist to review your treatment and provide an ‘expert report’ to support your claim.

In addition to receiving compensation for your ‘pain and suffering’ we can also claim medical expenses and the cost of future dental treatment, along with lost earnings and other out of pocket expenses.

So, if you think your dentist has made a mistake and would like to know if you can make a dental negligence claim then call our free helpline on 0333 888 0403 or email us at [email protected]

Professional negligence solicitor, Emma Slade, looks at claims in respect of negligent tenancy agreements

If you need expert guidance on making a negligent tenancy agreement claim then contact our legal helpline for a free consultation. We specialise in negligence claims and deal with cases nationwide on a No Win, No Fee basis. Call 0333 888 0403 or email us at [email protected]

The Housing Act 1988 brought in two new types of tenancy agreement: an Assured Tenancy and an Assured Shorthold Tenancy.

An Assured Tenancy could be for any length of time provided the property was the tenant’s main home, the landlord did not live there and rent was paid.  To get a tenant out of the property, the landlord has to prove “grounds” for getting rid of him: non payment of rent, breach of the tenancy agreement etc.  An Assured Shorthold Tenancy (AST) is slightly different.  It is for a minimum period of 6 months and at the end of the tenancy, the landlord simply has to serve a two month notice which terminates the tenancy.  If the tenant does not get out, the landlord can issue proceedings in court called Accelerated Possession Proceedings.  It is simply a paper exercise with no need to attend court.  Provided the court is satisfied that the tenancy is an AST, the tenancy has expired and proper notice has been served, the court must give a possession order.

When this law came into force it was a bit of a revelation as the previous types of tenancy had not been easy beasts to handle.  There was only one fly in the ointment.  In order to create an AST, before the tenancy was entered into, the landlord had to serve a Notice on the tenant telling him that the tenancy he was about to enter into was an AST.  It was called a section 20 Notice.

Section 20 notices caused huge problems; define “before” for starters.  Is it the day before?  Or immediately before signing? The Housing Act 1996 (which came into effect on 1st October 1996) amended this and dispensed with s20 Notices for ASTs.

So that was the law at the time that I took on this case.

My client – who I will call Bob – and his wife had a very large house in Stockport which, following all their kids leaving home, had become too large for them.  Rather than sell up, they split the house into three and created three flats, the upper two flats they intended to let out.  This was in early 1996.

They found two tenants. Michael had the upstairs flat and they entered into an AST with him.  Tenants for the middle floor came and went until eight months or so before I was instructed, Irina, an Eastern European immigrant moved in.  Her English was pretty poor and she did not know anybody locally so Bob and his wife took her under their wing.  They did all they could to help her.  Michael they did not particularly like, thinking him a bit of an oddball, but he had been staying in the flat for a number of years by now and they had never had any trouble from him.  He always paid his rent on time, was quiet and was never a disturbance.  Odd, but a model tenant.

Irina tried to make friends with him but unfortunately, on one occasion, Michael misunderstood her overtures.  It frightened Irina and she ran downstairs to see Bob and his wife, in tears.  After that, whenever she met Michael, despite the fact that he did not do anything or in any way try to harm or frighten her (something which she later admitted to the police), she became upset and relied more and more upon Bob and his wife.

This went on for a little while and Bob and his wife became increasingly worried for their young protégé.  One evening, Irina was particularly upset and Bob and decided that that young whippersnapper, Michael, had to go.  His presence was upsetting his little family.

The next day, he took the AST to the firm of solicitors which had drafted the document to obtain possession.  Unfortunately, the solicitor who had acted was newly qualified so was not aware of the requirements of a s20 Notice, Michael’s AST having been entered into before 1st October 1996.  The possession claim failed as she had not attached a copy of the s20 Notice.

Bob came to me at that stage as he could not understand how they had lost and wanted to know if he had a negligent tenancy agreement claim against the firm of solicitors, who he felt should pay his legal costs for the wasted application.  I looked at it and realised why the claim had been thrown out.  I asked Bob for a copy of the s20 Notice that had been served.  He didn’t know what I was talking about so I told him what a section 20 Notice was.

A few days later, a s20 Notice arrived through the post.  Looking at it though, it was dated after the AST had been entered into: it was therefore invalid.  Michael did not have an AST, he had an Assured Tenancy and as by Bob’s own admission, he was a model tenant, it would be almost impossible to get rid of him.  I called Bob up and told him the bad news.  He told me he would look through his documents again.

A couple of days later, I got another s20 Notice through the post.  It was identical to the first one – even the signatures – but it looked like Bob had been playing with the tippex.  The new date and the missing dots of the line underneath gave it away!  Bob denied it at first but ultimately, he agreed that the notice could not be relied upon.

In desperation, we called for the original solicitor’s file to see if the notice was in there.  It wasn’t, but the brilliant thing about it was that there was no evidence that one had ever been drafted or sent to Michael or even advice to Bob that one had to be served.  Nothing.  Nada.

Bob was ‘lucky’.  We could now sue the solicitors for the negligent tenancy agreement and recover compensation for Bob’s losses.  As I said, Michael had been a model tenant so we could not get him out for breaching his tenancy agreement.  In the end, Bob had to purchase Michael’s security of tenure.  Michael therefore got a nice lump sum to go and move elsewhere and Bob was compensated by his solicitors for all his losses.

Once the negligence settlement was reached, I got chatting with the litigation solicitor on the other side.  It seemed that Bob had originally instructed his conveyancing solicitor to do the AST.  The conveyancer did not have any experience in Landlord and Tenant law but thought “how hard can it be?”  Turns out, a lot harder and a lot more expensive than he had anticipated.  The moral is very clearly, “don’t dabble in things you don’t understand!”

But that is not the end of the story. Bob and his wife had gone through all this to try and help their young friend. Ironically though, after it was all over, Irina decided Stockport was not for her and returned home.  I believe Bob and his wife had also had enough so sold the house and bought a bungalow close to their daughter.

For expert guidance on negligent tenancy agreement claims call us for a free consultation on 0333 888 0403 or email us at [email protected]

Making a right of way negligence claim against a solicitor

For a free consultation about bringing a negligence claim against a solicitor for making a mistake in relation to a right of way, and the availability of no win, no fee funding, contact our free legal helpline by phone or email.

In order to make a right of way negligence claim against a solicitor you must be able to establish that the lawyer was at fault and in breach of their duty of care. However, establishing fault is not always straightforward, as this real life case study involving a right of way demonstrates.

About five years ago, our client (who we shall call David) purchased a new build house in a development on a small close.  There were only five houses on this plot which had originally been used for a small Council office that had been demolished.  To get all five houses onto the plot, the developer had built them along one side of the site with a road through the middle.  The other side of the road was derelict but, it was believed, still within the plot owned by the developers.  To get to David’s house and indeed, the other four houses, you had to drive or walk down the new road.

Everything was fine for a couple of years until out of the blue, David and the other house owners got a letter from the local Council saying that, contrary to what was believed, the derelict land and the land that the new road had been built on, belonged to the Council, not the developer.  David was trespassing on their land each time he used the road!

David and the house owners instructed a local solicitor to try and sort out the problem with the Council and the developer.  The developer did make a number of proposals including purchasing the land from the Council but for some unknown reason, the Council would not play ball.  In fact, it went so far as to block the road so it could not be driven on.  David had to park on the street and walk along the edge of his neighbour’s gardens to get to his house.

We were asked very late in the day to advise whether David had a professional negligence claim against his conveyancing solicitors for not noticing this problem.  Without access, his property was virtually worthless and whilst the discussions with the Council rumbled on, he wanted to know if he could get recompense from the original solicitors.

To bring a claim for professional negligence, you have to show that a reasonably competent solicitor would not have made the same mistake that the negligent professional did.  We therefore had to look at the papers in that light.

The solicitor had obtained all the relevant paperwork from the developer.  He had obtained a copy of the deeds which showed a plan of the plot that the developer had bought; he had also obtained a plan from the developer, identifying the five houses and the plot that would be David’s.  The first plan showed the entirety of the plot which abutted against the adjacent houses.  The second plan clearly showed five houses, a road in the middle and then a large, blank unbuilt area before the plot ended next to the adjacent houses.  It didn’t make sense: the plans looked identical.

However, because we were alert to the fact that there was a problem we looked very, very carefully at the plans and realised why an error had occurred.

The plan that the developer sent had been prepared by an architect.  He had showed the adjacent houses and had numbered two of them so we could work out that the last house at the edge of the plot was numbered 22.  Looking at the original plan on the sale of the Council’s office, after a bit of counting, the adjacent house was numbered 26.  Somewhere along the line, it looked like the Council had purchased houses 24 & 26 and demolished them, leaving derelict land which the developers had presumed they owned.

Because we were alert to the problem we could see where the error had occurred, but looking at it with the eye of the original conveyancer and comparing the two plans, it simply could not be spotted and the conveyancer could not therefore be considered negligent.  To add insult to injury, the conveyancer had been very good to ensure that David had a right of way over the road!

So in this instance, there was no negligence claim against the solicitor. All David could do was to bring proceedings against the developer for breach of contract in failing to give him good title. 

How we can help with your right of way negligence claim

If you would like to know where you stand on making a negligence claim against a solicitor for making an error in relation to a right of way, then contact us for a free case consultation and details of no win, no fee funding.

Call us on 0333 888 0403 or send brief details of your  claim to us at [email protected]

In this edition of her popular blog, solicitors negligence specialist Emma Slade looks at negligent landlord and tenant advice, and what can happen when a solicitor is tempted to dabble in areas outside his field of expertise

When I got a call from a potential new solicitor negligence client the other day, the saying, ‘Jack of all trades, master of none’ immediately sprang to mind.  It amazes me when professional people (especially solicitors, who really ought to know better), step outside their area of expertise and dabble.  Invariably, they get it wrong.  Sure, it creates work for me, but it can make life hell for their unfortunate client.

The caller – I will call him Sam – was an elderly farmer who had decided to put some old stone barns to good use.  He had obtained planning permission and got them converted for use as rented accommodation.  When the barns were finished he advertised privately for a new tenant.  Once a tenant had been found, Sam called up his family lawyer.  He had used this guy for years.  When I looked him up on the Law Society website, I found that he was a sole practitioner specialising in Wills and Conveyancing.  He had also been qualified since the mid-1970s and did not appear to have a website or email address.

Sam asked the solicitor to set up a tenancy agreement.  The solicitor said that he did not usually deal in Landlord & Tenant law but advised him that the best type of tenancy agreement was an Assured Shorthold Tenancy. He said that at the end of six months and after service of the requisite notice, Sam could easily get the property back if the tenant did not move out.  Sam agreed and the solicitor prepared the tenancy agreement.

The new tenant moved in.  He paid a deposit and the first month’s rent and Sam was happy.  Two months later though, he wasn’t quite so pleased.  The tenant had issued court proceedings against him because Sam had failed to register the deposit with a Tenancy Deposit Scheme within 30 days of the commencement of the tenancy and to provide the tenant with some prescribed information.  Failure to do so means that the Courts may order the landlord to repay the deposit to the tenant as well as a penalty of between one to three times the value of the deposit:  Even if the tenant is in rent arrears.

Poor Sam!  His solicitor had not been aware of this change in this aspect of Landlord and Tenant law so had not forewarned him.  I discussed with Sam what to do and gave him some advice on how to deal with the proceedings his tenant had issued.  I also discussed bringing a possible professional negligence claim against the solicitor: he had clearly been negligent and should have to recompense Sam for any penalty and legal costs he has to pay.  Sam did not wish to sue his solicitor though – they had been through too much together in the past, but he said he would have a quiet word with him.

I don’t know how this one ended.  Sam seemed very much to belong to the school of trying to sort problems out without involving the Courts – an admirable concept – and with the relationship he had with his old solicitor, I hope that Sam will be dealt with properly.

However, the case underlines how important it is for solicitors to stick to their own areas of expertise and not be tempted to dabble.

If you have been given negligent Landlord and Tenant advice or have let down by a solicitor in relation to another area of law, then find out where you stand by contacting our free helpline. Call 0333 888 0403 or email us at [email protected]

 

The negligent conveyancing solicitor and the disused mine

If you are seeking expert guidance on making a compensation claim against a negligent conveyancing solicitor call us on 0333 888 0403 or email us at [email protected] for a free case assessment and details of no win, no fee funding.

Solicitor Emma Slade continues her popular professional negligence blog with a tale of a negligent conveyancing solicitor and a disused mine.

I mentioned in a previous blog entry that I have done quite a few professional negligence claims concerning old mines in South Wales. I have a couple on-going at the moment, but thought I would share with you one that I completed a few years ago.

It was a young woman who I represented. She had bought a rundown property with the assistance of a mortgage which she intended to do up and sell on in the hope that she could make a bit of money to put down as a deposit on a property for herself. There had been a death in the family and she had got a small inheritance that was sufficient to pay for the works and to keep her going for 3-4 months whilst she did the property up herself.

The property she found in South Wales was an absolute bargain – rock bottom price which was confirmed by a mortgage valuation. The client – I will call her Lisa – did not have enough money for a full survey but she felt it was not needed as she intended to carry out so much work to the property.

Lisa instructed a solicitor to deal with the conveyancing. For some bizarre reason, the solicitor did not carry out a standard mining search, which was extremely surprising given the area the property was located in. 

Lisa bought the house and started the works. They were more extensive than she had realised but the work she had done should have put value on to the property already. She therefore looked to re-mortgage to take some equity out of the property to fund the remaining works. A mortgage valuation was obtained which specifically stated that, subject to satisfactory mining search, the house had indeed increased in value.

Lisa’s new solicitor carried out a mining search and found that there was an uncapped mine right in her back garden! The mortgage company understandably refused to offer a new mortgage to her.

On the face of it, Lisa had a great claim against her solicitor. In claims like this, a client is able to get compensation either for the cost of repairs or the ‘diminution in value’ of the property, whichever is the lower. Discussions with surveyors in the area said that the cost of capping the mine could be astronomical: £220,000 was one figure mentioned. Nobody could give a quote without carrying out extensive surveys of the mine itself.

Things were looking pretty grim for Lisa. If she had known about the mine, she would not have bought the property but it had been such a bargain at the outset, there was no diminution in value. She had sunk all her money into the renovations and now was struggling to keep up with the mortgage repayments, the mortgage company breathing down her back.

Ultimately though, Lisa was lucky – not that it felt that way at the time. It rained. It rained so hard that part of the back wall of her house collapsed. Turned out that the mine had been causing subsidence to the property for some time but as Lisa had not had a full structural survey done, it had not been noticed. I was therefore able to make a claim for her under the Coal-Mining (Subsidence) Act 1991, an act which means the Coal Authority are required to make good any damage caused by subsidence. In this instance, the cost of repair was too great and so they bought the property off of her. She lost her inheritance, but it was sufficient to pay off the mortgage company.

So be warned. If you are thinking of moving to an area where there have been mining works, I suggest you talk it over with your conveyancing solicitor.

For guidance on making a compensation claim against a negligent conveyancing solicitor call 0333 888 0403 or email us at [email protected]

In this installment of her blog professional negligence solicitor Emma Slade looks at surveyor negligence and mining sulphate

I know I keep saying that you can learn a lot of useful stuff in this job, but it is true. I had an enquiry the other day for an unusual professional negligence scenario that I had already come across, so could speak with him quite knowledgeably on it – much to his surprise I think!

Mr Jones (not his real name of course) had bought a house seven years ago in South Wales. Obviously, the first thing to spring to mind is the “seven years” bit as alarm bells start ringing about limitation when a professional negligence solicitor hears that something occurred more than 6 years ago. The second point of note is the “South Wales” bit which is an area where there has been considerable mining in the past and I have had a few cases arising from there as a result.

Mr Jones though, purchased his house which had a small extension at the back for the study. Before purchase, he instructed a surveyor to carry out a survey on the property. It wasn’t a full structural survey but a Homebuyers report which tends to point out the more obvious problems with the property. The surveyor gave the property a clean bill of health, despite the fact that the study floor was uneven – it had a kind of ‘bump’ in the middle.

For nearly seven years, Mr Jones had been living in the property quite happily, but following some heavy rainfall he noticed that the study floor was becoming more uneven. It was starting to heave up into the room, causing the walls of the extension to shunt, plaster cracking and gaps in the walls.

Mr Jones called in the surveyor who sent a representative of his insurance company to take a look. After reviewing the area, the insurance company acknowledged that there was a serious structural issue but they were not going to make any payment as the surveyor could not have known what would occur when he did his report.

That’s rot as far as I am concerned! Any reasonably competent surveyor working in South Wales, particularly where Mr Jones’ house was built – which was very close to an old mining facility – should have been alert to the potential problem. Even more so when he saw the bump in the middle of an extension which had been built in the early 1970s.

What am I talking about? Well, as I said, I have dealt with a few cases coming out of South Wales where there have been problems with mines and things associated with mining, so I immediately knew what the problem was: sulphate attack.

After World War II, the building industry started using hardcore as part of the foundations of properties. Because of the lack of readily available materials, those properties built in mining areas tended to use colliery shale with concrete overlaid. Unfortunately, colliery shale contains sulphates which in certain circumstances – especially when it gets wet – reacts with the concrete and causes the hardcore to expand. This causes the concrete to heave up putting pressure on the walls so they are forced out. The problems with this were first identified in the early 1970s and the practice of using colliery shale as hardcore stopped in the mid-1970s.

You will understand therefore why I did not agree with the insurance company that the problem with Mr Jones’ property was not reasonably foreseeable. We had a surveyor who had been asked to carry out a survey in a mining district of South Wales. On visiting the property, he would have seen that there was an extension which clearly was not new. Importantly, there was already evidence of heave in the floor of the extension. Alarm bells should have been ringing!

If you think you might have a problem with surveyor negligence and mining sulphate then give us a call on 0333 888 0403 or send us an email. 

Case study of a successful solicitors negligence claim in which specialist negligence lawyer, Emma Slade, recovered compensation on behalf of a beneficiary who lost out due to a badly prepared Will.

If you have suffered financially due to a solicitor’s error in preparing a Will, then contact our free legal helpline on 0333 888 0403 or send us an email at [email protected].

Mr & Mrs Pryor (a made up name, naturally) went to see their solicitor about making some Wills. Mrs Pryor was gravely ill with Multiple Sclerosis so although both of them were making Wills, it was largely to sort out Mrs Pryor’s position.  Importantly, they were concerned to ensure that Mr Pryor had a roof over his head as they had heard many horror stories about people losing their homes.  They explained their concerns to the solicitor.  I know this because it is in the solicitor’s attendance note.

Mr & Mrs Pryor also had a son called Frank (whose name is equally fictitious) and Mrs Pryor in particular wished to ensure that there was something for Frank in the Will.  It was suggested that Frank have an interest in the house on Mrs Pryor’s death which was agreed but Mr & Mrs Pryor were adamant that any monies should pass to the survivor of each other as again, they had heard horror stories about people losing their homes and not having any money to live on.  Again, I know this because it is also in the attendance note.

But what is not in the solicitor’s attendance note are the sort of questions that I think the solicitor should have been asking.  For example, how old is Frank?  Does he have a partner?  Is he likely to want to live with his Dad?  Would he prefer a lump sum to living at home?  The attendance note said that Frank did not have the financial ability to purchase his own home but that was then.  What about the future?

Importantly, the solicitor didn’t discuss with Mr & Mrs Pryor the fact that if Frank did get a half interest in the house, he had the right to apply to the Court for the property to be sold.  There would be insufficient funds then to re-house Mr Pryor and the horror stories Mr & Mrs Pryor were so concerned about may come true.  The solicitor should have suggested that the Wills be altered so that the survivor could live in the property for as long as they liked but when they died, the half interest would go to Frank.  This is known as a ‘life interest’.

There was a still a chance for the solicitor to redeem herself as Mr & Mrs Pryor came back a couple of weeks later to sign their Wills which gave half the home to Frank.  Straight away, Mr & Mrs Pryor told the solicitor that Frank and his wife had split up and Frank’s wife was going to issue divorce proceedings.  The solicitor simply nodded wisely, gave them a big smile and got them to sign the Wills.  The attendance note is silent on the advice that a prudent and competent solicitor should have been giving.  In particular, she should have been warning Mr & Mrs Pryor that if half the house went to Frank, then his wife may have a claim on it in the divorce proceedings.

Unfortunately, the inevitable happened.  Mrs Pryor died within a couple of months and although Frank got back with his wife, he had a major bust-up with his father and for a while it looked like Frank may actually insist on having the house sold and his father flung out on the streets.

Fortunately, Frank saw sense in the end. I would like to think it was because he did not wish to see his father homeless but I think it was probably more to do with the fact that he could not afford the legal costs of an expensive, drawn out legal battle.  He agreed therefore to a variation of his mother’s Will granting his father a life interest in mum’s half of the property.

This is where I came in. Mr Pryor had incurred large legal costs in trying to rectify the position caused by the badly prepared Will. I wrote to the negligent solicitors, seeking compensation for Mr Pryor’s losses arising from their negligence.  At first they denied that they had been negligent, said that Mrs Pryor understood the consequences of leaving her half of the property to her son and that she thought her son would always want to live in the property.  Unfortunately for them, their attendance notes did not back up this line of argument so they swiftly settled the claim and agreed to pay compensation.

I don’t know whether relations between Mr Pryor and Frank have improved.  Now that there is no longer any friction over the house, I would like to think they have.  What I do know though is that for brief but worrying time, Mrs Pryor’s fears looked like they might come true because of a badly prepared Will. At least we were able to prevent that happening.

If you have lost out as a result of a badly prepared Will and want to know where you stand on claiming compensation then call our free legal helpline on 0333 888 0403 or send us an email at [email protected]