Professional negligence solicitor Emma Slade looks at Japanese knotweed compensation claims

Did you know that it cost the UK taxpayer over £70 million to remove 10 acres of Japanese Knotweed during the construction of the Olympic Park in London? Or that it is an offence under the Wildlife & Countryside Act to plant or grow Japanese Knotweed in the wild?

It is also an offence under the Environmental Protection Act 1990 if it is not disposed of properly (you must not put it in your household waste or compost bin).

Then there is the eye-watering fact that Japanese Knotweed can grow at the rate of up to 20cm a day!

Fallopia Japonica: Japanese Knotweed and Surveyor’s Negligence

I discovered all these interesting facts about Fallopia Japonica in a case I recently dealt with. However, my client certainly didn’t find it “interesting”. He was understandably concerned as there are so many horror stories being told about this invasive weed which, aside from growing at an incredible rate, it has roots (or Rhizomes as Alan Titchmarsh may more correctly refer to them as) that can grow down to a depth of three metres. Given that modern day houses only need footings to a depth of one metre, stories of householders finding Japanese Knotweed growing up through their living room floor no longer sound so unbelievable. Or that in some instances, it is actually cheaper to knock the house down as the damage caused by its invasive nature means it is too expensive to treat.

The case I was dealing with involved a surveyor who had failed to notice that the red-stemmed, bamboo-looking bush at the end of the garden was in fact Japanese Knotweed. The client, on moving in to the property, was told by his next door neighbour that something had to be done about “that pesky plant”. Investigations showed that it was indeed Japanese Knotweed, brought on site by the property developer in contaminated soil. The property developers had gone in to liquidation by the time all this was identified so a legal claim could no longer be made against them. Instead, we had to bring a professional negligence claim against the surveyor.

Given that Japanese Knotweed was very much a feature in the press at the time and that the RICS had recently published a paper about it, it was concluded that a reasonably competent surveyor should have been alert to the possibility of the presence of the knotweed. The claim therefore succeeded and the surveyor learnt a very expensive horticultural lesson.

Japanese Knotweed and Estate Agents’ Duties

But it isn’t just surveyors or property developers who can be held legally liable for Japanese Knotweed as I was reminded of just the other day when i received an enquiry from a prospective client who had called our free professional negligence helpline.

The caller and her husband had exchanged contracts on the purchase of a house, but before completion the estate agent admitted that previous buyers had pulled out of the house purchase because of the presence of the dreaded Japanese Knotweed. There were delays therefore in completion as the vendors had to make arrangements for the Knotweed to be treated. Understandably the caller was concerned that the property may be devalued as a result of being ‘blighted’ by the fact that Japanese Knotweed had been present. In addition there was the stress and worry they had endured throughout the these trials and tribulations: Would their lenders pull out? Would they then be in breach of contract?

Given the amount of damage that Japanese Knotweed can cause to a property, lenders obviously balk at accepting an affected property as security for a mortgage. When the problem was first identified, mortgagees refused to even consider lending on a property that had Japanese Knotweed anywhere near it. At that stage, the Royal Institution of Chartered Surveyors issued a report and since then, a lot of lenders have relaxed their criteria. Many will now offer a mortgage if the knotweed is treated and a 10-year insurance backed guarantee is obtained. Fortunately, in this instance, after treatment paid for by the Vendor, the lenders were prepared to accept the property as security. As the house had already been bought at a price that was much lower than market value, there was no evidence of the property diminishing in value. The only thing remaining was the stress and worry the purchasers had had to endure. As the agents had readily admitted that they knew of the problem prior to exchange, there was a clear case of a breach of the Consumer Protection from Unfair Trading Regulations 2008 (CPRs) which specifically gives Japanese Knotweed as an example of information an agent should impart. Because the Courts are reluctant to compensate for ‘stress and inconvenience’, I recommended that the caller take the complaint further to The Property Ombudsman. This service, which is free of charge, can award damages of up to £25,000 for stress and inconvenience.

RICS Guidance on Japanese Knotweed

According to the latest RICS guidance, Japanese Knotweed is not such a great problem. Provided specialist advice is sought and care is undertaken not to damage it (rhizomes will grow from each cut), it can be reliably treated and rarely causes damage to property. Lenders are starting to accept this and provide mortgages on property provided appropriate safeguards are put in place. It is only the horror stories from the popular press that are still remembered and it is this which affects the value – and saleability – of a property blighted by Japanese Knotweed.

Free Legal Helpline for Japanese Knotweed Compensation Claims

If you wish to know more about Japanese knotweed compensation claims then contact us now on 0333 888 0403 or email us at [email protected] for a free assessment of your case.

With digital fraud becoming increasingly common in the UK we look at email scams and negligence

For guidance on email scams and negligence claims contact our free legal helpline on 0333 888 0403

email [email protected]

No area of business appears to be immune from cyber attacks; including the legal and banking sectors.

The case of Mr G is a typical example of the problems solicitors in particular now face when handling client funds. The facts of his case are briefly as follows:

• Lawyers, H & Co, were instructed by Mr G to manage the sale of his late Mother’s estate.

• A few days before completion H & Co received an email purporting to be from Mr G providing details of a new bank account to which they were instructed to transfer the proceeds of sale.

• H & Co confirmed the new arrangement and a few days later electronically transferred the monies to the specified account.

• Mr G did not receive the funds.

• H & Co made enquiries and discovered that an unknown third party had hacked Mr G’s email and had withdrawn the monies from the bogus account.

Mr G took legal action against his solicitors for negligence in relation to the email scam. He argued that the Solicitors Accounts Rules made H & Co strictly liable to account to him for the missing money. It was claimed that by acting upon the email, H & Co had been negligent and were in breach of their retainer.

H & Co’s professional indemnity insurers conceded that the solicitors were responsible for the loss caused by the scam. The solicitors should have checked Mr G’s bank account details against the money laundering information provided and only accepted notification of a change after a telephone conversation with the client and satisfactory answers to security questions being given.

The case serves as a timely warning to all lawyers handling client funds. Solicitors need to be vigilant and alive to the risk of email scams, hackers and fraud. The duty placed on a solicitor is a high one and if a client falls victim the lawyer could easily end up facing a negligence claim and making good any losses.

There are often key factors associated with scams and frauds that should raise suspicion. Things to look out for include:

• Whether the message is unsolicited

• Whether the email contains spelling mistakes that are uncharacteristic of the client

• Whether it refers only to details that could have been obtained from previous emails?

If you have been the victim of cyber fraud and are looking for guidance on email scams and negligence claims then just contact our 0333 888 0403 or email [email protected] and our professional negligence solicitors will assess your claim.

 

This article on email scams and negligence was reviewed and updated in November 2024.

Professional negligence solicitor, Emma Slade, looks a court decision concerning a negligent valuation report.

The Court of Appeal case of Tiuta International Ltd (in Liquidation) –v- De Villiers Surveyors Ltd is relatively fact specific but its ramifications could have a huge impact on both the lending and valuing industry.

In this case, Tiuta (T) was asked to provide a loan on a property development. It asked De Villiers (D) to provide a valuation of the property which it did. Based on the valuation, the loan was made and secured on the property.

Later that year, the property developer approached T again as it wished to increase the loan facility by approximately £272,200. Again, D provided a valuation with almost identical figures to the first. However, rather than give the property developer a top-up loan, T entered into an entirely new mortgage facility, redeeming the original mortgage.

The development failed and on sale of the security, there was a shortfall on the mortgage by nearly £890,500.

T brought proceedings against D for the entire shortfall, claiming that the second valuation had been negligent. D applied for the claim to be dismissed (summary judgment) on the basis that, if their second valuation was indeed negligent, then because the original mortgage had been redeemed, D could not be liable for any loss attributable to the first valuation, only loss attributable to the second valuation. As the second valuation was only used to provide the developer an additional £272,200, that is all D could be held liable for.

The lower court agreed with D, saying that as the original loan was in place in any event, the second valuation could not have any impact on that first loan.

T appealed and the Court of Appeal overturned the decision.

Although there had been previous case law which supported D’s arguments, the Court of Appeal felt that the test had been misapplied. It was entirely irrelevant, they thought, that the second loan was to be used to redeem the first. Why should D be let off the hook with their first (negligent) valuation simply because of the way T had decided to restructure the new loan? Putting it differently, if T had used a different valuer for the second valuation, that valuer would have been held liable for the entire loss, not just the top up. Specifically, the Court of Appeal said: “it could be said to be inherently unfair that…. a negligent valuer could use an attack on the legitimate working practices and systems of the appellant as a means of escaping part of the consequences of his or her negligence.”

This is an interesting and useful case for lenders as since 2002, lenders have had to be careful how they set up their loan facilities to ensure that any subsequent shortfall of security is not expunged by the redeeming of their loan. For valuers, it is not so good and they are going to have to take care to add caveats to their valuations if their valuations are to be used to redeem existing loans. Personally, I find the decision to be a logical conclusion. A valuer is being asked to provide their expertise in determining the level of security a property can provide and cannot see how or why the purpose of the valuation should affect the valuer’s conclusions.

For FREE initial guidance on bringing a negligent negligent valuation compensation claim for professional negligence and details of No Win, No Fee funding, call us on 0333 888 0403 or email us your details.

Any eagle-eyed student of the legal process will have noticed that just over three years ago, there was a huge re-write of the way that legal services were funded. Since 1998, people having problems funding litigation could find a solicitor who would defer payment of their services until the conclusion of the claim: if the client lost, the solicitor wrote off their fees; if they were successful, the client could recover from the opponent the solicitor’s basic costs along with an uplift to reflect the risk the solicitor was taking in backing the claim (known as the “success fee”). On top of that, a successful party could recover from the other side any premium they had to pay for insurance to protect them against the risk of an adverse costs order. However, all this changed on 1st April 2013 when the government introduced the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

Following the reforms any success fee or insurance premium could no longer be recovered from the losing party – the successful litigant had to pay for it themselves out of their damages. Since long before LASPO came into effect, I have been an opponent of these reforms as they not only restrict access to justice, they deny justice. In the field I specialise in (professional negligence), the aim is to put the parties back in to the position as if the negligence had not occurred. To give an example: a full structural survey is obtained when a property is purchased saying that all is well only for the purchaser to find that £50,000 needs to be spent on underpinning or damp proofing or rebuilding or suchlike and that such defect, should have been noticed by the surveyor. The purchaser sues the surveyor for the £50,000. That £50,000 is needed to cover the cost of the works yet, because of the changes brought in by LASPO, some of that £50,000 must now be used to fund the costs of the litigation. Through no fault of their own, the client is left out of pocket , in some cases substantially so. It can be argued that the Client could pay the costs themselves and avoid a success fee but let’s face it, who has sufficient savings to litigate? That was why No Win, No Fee agreements were introduced in the first place.

Many people are therefore now resorting to acting in person – “litigants in person” is the correct term, or “LIP” – especially where the losses are at the lower end of the scale. But a LIP rarely has the legal knowledge or expertise to properly conduct a case, so in many instances they seek legal advice from a lawyer: Just a bit of advice on how to run a claim, the merits of a case, the procedure of a claim and so on. They are not asking the solicitor to run the entire case from start to finish in the conventional way, but to, in effect, stand behind them when required to give some professional guidance. It is in effect, ad-hoc legal advice or, as it is now known in legal circles, an “unbundled service”.

However, whilst unbundled legal services might seem like a good idea, they raise serious and important questions, especially for the solicitor and their insurers. No matter how much guidance a solicitor can provide, once the advice has been given and the consumer then acts upon it, is the solicitor then responsible for the result? More importantly, should the solicitor be liable for something that was outside the remit of his instructions?

This question consumed the Court of Appeal last November (2015) in the case of Minkin –v- Landsberg [2015] EWCA Civ 1152. In that case, the Claimant (M) was acting for herself in divorce proceedings. She asked the Defendant (L), a practising solicitor, to help her draft the Consent Order finalising the financial provision details of the divorce. L did this but later, M came to regret settling and sued L, claiming that L had failed to advise her that settling was not in her best interests. Going up to the Court of Appeal, the law lords confirmed the original Trial Judge’s finding of fact that L’s retainer was limited purely to drafting the consent order and as such the lawyer did not have a duty to give the broader advice or warnings for which M contended. The decision was welcomed with relief by both solicitors and LIPs alike as without such an unbundled service, many LIPs would either be forced to pay greater fees to deal with a case, to continue litigation in the hope that they can get by on internet searches or to just give up.

That was until the Court of Appeal decision in Sequence Properties Ltd –v- Kunal Balwant Bhai Patel in May 2016. The Judgment has not  been released at the time of publishing this piece so the fine details behind the decision are unknown. However, the case related to an application for relief from sanction in that the Applicant (“A)” had filed his appeal bundle nine days late and had failed to serve it on the proposed Respondent (R). To be fair to A, the Court Order only stated that the Appeal Bundle had to be filed (at Court) not served (on R) but as A had sought assistance from a solicitor on preparation of the bundle, the Court felt that a retainer limited to preparation of a bundle was not a good enough reason as to why the bundle was not filed and served on time. The solicitor should have warned A about the time limits and should have been aware that the bundle had to be served on R. The case was not one about professional negligence but the comments arising from the Court of Appeal, criticising the unbundled service, is a serious blow for LIPs especially as the government, the courts and the Legal Services Board have all been encouraging solicitors to provide unbundled services. Indeed, in Minkin, Lady Justice King stated:

‘There would be very serious consequences for both the courts and litigants in person generally, if solicitors were put in a position that they felt unable to accept instructions to act on a limited retainer basis for fear that what they anticipated to be a modest and relatively inexpensive drafting exercise of a document (albeit complex to a lay person) may lead to them having imposed upon them a far broader duty of care”.

With the judgment in Sequence potentially putting solicitors off offering these services, it is going to be difficult for litigants in person if they can no longer seek advice under a restricted retainer. What it does mean though is that a number of solicitors – and indeed LIPs – are going to be reviewing advice given and received in the past to see whether the unbundled service provided was adequate or, in light of Sequence, potentially negligent.

Making a professional negligence claim for a badly drafted will.

A judge has ruled that a solicitor was negligent when he drafted a will that left 2 beneficiaries with £62,500 less than his client had intended.

In the case of Herring & Another v Shorts Financial Services a professional negligence claim was brought by Tim Herring and Claire Hartley who were beneficiaries of Mrs Shemwell’s will. They alleged that the solicitor who prepared the will on Mrs Shemwell’s behalf had been negligent for not ensuring that they were left the full sum of £200,000 intended for each of them.

Court proceedings were initially commenced against the solicitor and Mrs Shemwell’s financial adviser at Shorts Financial Services. A settlement in respect of the claim against the solicitor was negotiated at mediation last year. This left the claim against the financial adviser to be heard by the court.

The background to the claim was that the financial adviser had advised Mrs Shemwell to set up a loan trust to reduce the amount of inheritance tax that would become payable on her death.  However the way in which the trust was created meant that the loan trust monies did not automatically pass to Herring and Hartley. As a result they both received less money upon Mrs Shemwell’s death than had been intended.

The trial judge concluded that the financial adviser did not owe a duty of care to Herring and Hartley because he hadn’t been involved in drafting the will. The claim was therefore dismissed.

Nevertheless the judge was critical of the solicitor’s role, commenting that the lawyer had breached his duty of care to the claimants (who were not his clients) as well as Mrs Shemwell (who was) for failing to ensure that the trust money passed to Herring and Hartley on her death. It was alleged that the solicitor had failed to adequately question the financial adviser about the loan trust before he prepared the will. The lawyer did however speak to the financial adviser and was given a copy of an aide-memoire which the adviser had prepared.

The solicitor in question is reported as disagreeing with the court’s analysis. The firm wasn’t represented at the trial because they had already settled the claim against them so no arguments on their behalf were put forward.

Lawyers have criticised the ruling, pointing out that it was the financial adviser who recommended and set up the loan trust, not the solicitor. Given that the only purpose of the trust was to avoid inheritance tax for the benefit of the beneficiaries it is surprising that the judge didn’t think that the financial adviser owed the intended beneficiaries a duty of care. Since White v Jones the courts have been increasingly ready to impose a duty of care on lawyers to third parties (such as beneficiaries under a will), as well as to their clients,  so you might expect financial advisers engaged to advise on estate planning to be viewed in similar terms.

If you have lost out due to a badly drafted will, then give our free legal helpline a call or send us an email with details of the case for a free assessment.

In a landmark ruling the courts in Spain have ordered a Spanish bank to compensate an off plan property investor who lost their deposit when a developer went out of business.

The decision opens the way for thousands of British property investors who lost out to reclaim the money they thought had gone forever.

When the Spanish holiday home market was booming British people were targeted as a lucrative market by property developers in Spain.

Investors were tempted to pay significant deposits to purchase off plan properties.

However, when the recession bit, many investors lost their deposit as developers went bust without finishing or even starting building work.

Now the courts in Spain have said that the Spanish banks which financed the developments should compensate those who have lost out for failing to protect their deposits.

Claiming compensation in the Spanish courts can be a complex undertaking, so we have teamed up with lawyers in Spain to enable British investors to recover their lost deposits.

We are able to act as agents on your behalf, liaising with the Spanish lawyers on a No Win, No Fee basis.

If you have suffered loss in relation to a Spanish property development and are interested in pursuing a claim then call us on 0333 888 0403.

Emma Slade, a solicitor specialising in Professional Negligence cases considers considers a common question, Can I sue a barrister, or expert witness for professional negligence in respect of their performance at a Court trial?

It would be pleasant to think that a Court trial can turn on a single point, a sabre-cutting comment by the barrister, a perspicacious observation by the expert, incontrovertible evidence from an independent witness, even – dare I say it – that justice shines through. Sadly, life is not like a Perry Mason film. The outcome of most trials arises from a combination of factors that when put together, present the most compelling case.

If therefore, you have invested your heart and soul in a case, it can be utterly soul destroying to lose. In many instances, the losing party looks to see if there was something that could have been done better to bring about a different verdict; and very often the finger gets pointed at the barrister. Occasionally an expert or a witness will be criticised. But can you sue any of these people?

Firstly, let me make it clear; you cannot sue the judge. It is a point of policy that the judge must be considered independent and free from potential suit if he is to give an unbiased and impartial judgment. Your only recourse is to appeal.

The same goes for witnesses. It has long been considered that a witness owes their duty to the court, not a single party. Further, it has been the long held view that if a witness thinks there is a possibility of being sued, they will not come forward to provide evidence, thereby bringing the system to a grinding halt. Witnesses are therefore immune from suit.

The same used to be said of barristers and experts as they are in a potentially unique position: they owe a duty to the court and a duty to their client. If they are concerned that they could be sued by a disgruntled client, this might erode away their primary duty which is to the court.

Since 2000 though, this position has changed. Beforehand, there was a total immunity from suit for barristers and experts in respect of their performance in court. Barristers could be sued for advice given outside the court arena but not for their advocacy skills. This changed. The relevant cases are Arthur J S Hall & Co –v- Simons [2000] 3 WLR 543 HL for barristers and Jones v Kaney [2011] UKSC 13 for experts. There is no need to go into the details of these cases but it is clear from the judgments in both that the House of Lords and Supreme Court respectively felt that there were sufficient other legal principles and powers of the court, that there was no need for barristers and experts to hide behind such an archaic legal fiction as a total immunity from suit.

But before you get out the bunting and set off the fireworks, bringing a successful claim for negligence against a barrister (and I will confine the remainder of this article to a barrister though the principles similarly apply to an expert) is not as easy as it may sound. You still have to overcome the three tenets of professional negligence: that the barrister owed you a duty of care, that the duty of care was breached and that it caused you to suffer a loss.

If the barrister/expert in question is instructed by you, then there will probably not be any difficulty in establishing duty of care, but going on to show breach of duty of care is not as easy as it sounds. The measure is whether or not a similarly qualified and experienced barrister would have acted in the same or similar way in identical circumstances. With things such as advocacy though, there isn’t a simple, black-or-white approach to presenting the case. Each advocate will present the case in a different way. It was specifically stated in the case of Abraham –v- Jutsun (1963) 2 All ER 402 that, whilst it would be entirely unreasonable to consider that all arguments put forward by Counsel would be accepted by the Court, that does not mean it is negligent not to put them forward. Indeed, the court considered that it was the barristers’ duty:

“… to take any point which he believed to be fairly arguable on behalf of his client. An advocate is not to usurp the province of the judge. He is not to determine what shall be the effect of legal argument. He is not guilty of misconduct simply because he takes a point which the tribunal holds to be bad. He only becomes guilty of misconduct if he is dishonest. That is, if he knowingly takes a bad point and thereby deceives the court.”

So, just because the barrister has made a point which the court rejects does not mean that it was negligent to do so. It is only if no other reasonably competent barrister would have made such a point.

But even if you can overcome that hurdle – and it is an extraordinarily high hurdle to jump – you then have the next problem to overcome: causation.

If you are coming to me to see whether you have a case, it is invariably because you believe you have suffered a loss as a result of the action; but you have to prove that the actions of the barrister caused you to suffer a loss.

As I said at the beginning of this article, it would be wonderful if cases were so cut and dried that it was the acerbic wit, shrewdness and cutting-edge cross examination of your Counsel that wins – or loses – the day, but it rarely is. It is a combination of factors. And if you want to bring a successful claim against your barrister for poor performance, you have to show that his failure was the single most likely cause of your loss.

Let me give you an example of ‘causation’ in the case of Wilsher –v- Essex Health Authority (1988) 1 All ER 871. In that case, a premature baby was negligently administered excessive oxygen during post-natal care. The baby subsequently became blind. Medical evidence suggested that the administration of such large doses of oxygen could be one of a number of factors causing the blindness. Initially, the Court of Appeal was willing to say that the application of oxygen caused a “material increase in risk” of blindness and so awarded damages, but this was overturned by the House of Lords. It is worth quoting the relevant part of the speech as it sums it up well:

“where a plaintiff’s injury was attributable to a number of possible causes, one of which was the defendant’s negligence, the combination of the defendant’s breach of duty and the plaintiff’s injury did not give rise to a presumption that the defendant had caused the injury. Instead the burden remained on the plaintiff to proof the causative link between defendant’s negligence and his injury…”

There were any number of factors that could have caused the blindness, just as there will be any number of factors that will lead a judge to his conclusion. Connecting the loss to the performance of your advocate is going to be exceptionally difficult. Not impossible, but exceptionally difficult.

There is one other area that I should touch upon. I get many, many calls from clients who have suffered a criminal conviction which they attribute to the poor performance of their barrister. I have also had many calls from Clients saying that they were “told” to plead guilty when they were innocent of the crime.

Let me deal with the second point first. Sorry, it won’t wash. Firstly, legal counsel do not “tell” a client what to do but “advise”, They give them the pros and cons of a course of action and the client decides. Secondly, it has long been considered that, barring mental incapacity, an individual is responsible for their own actions. If a Client pleads guilty, then it is assumed that they have considered the matter for themselves and concluded that that is the appropriate way forward for them. Counsel is not responsible.

Now for the first part – being found guilty of a crime of which they are innocent.

Unless the conviction has been overturned, it is going to be almost impossible to bring a negligence claim against the barrister. Although an old case, Somasundaram –v- M Julius Melchior & Co (1989) 1 All ER 129 is still sound law. In this instance, the Claimant was charged and subsequently convicted of causing grievous bodily harm to his wife, with intent to cause hurt. In the civil courts, he tried to bring a claim for negligence against his solicitor who had been representing him in the criminal trial. C claimed that D had failed to put forward issues of mitigation on his behalf and further, he had been persuaded to change his plea to guilty. The Court of Appeal struck his claim out on the grounds that it involved an attack on the conviction of the Crown Court. Why was that?

To prove a case in the Crown Court, it has to be proven “beyond reasonable doubt”; in a Civil Court, it has to be “on the balance of probabilities”. It is clumsy to do so, but put in percentage terms, to get a conviction, a criminal court needs to be 75% satisfied that the crime took place. In a civil case, the court needs to be 51% satisfied that something occurred. By saying that a barrister conducting a criminal claim is negligent, you are asking a Civil Court to say that the original conviction was unsound and given the burden of proof required in a criminal court, it cannot do so. Unless therefore the criminal conviction is overturned, you are unlikely to be successful in a professional negligence claim.

If you need further guidance on the question, Can I sue a barrister, or you feel you do have a claim against a barrister or expert witness, then call us today for a free assessment of your case.

Call us on 0333 888 0403. Alternatively, you can contact us by e-mail at [email protected]

Conditional Fee Agreements in professional negligence claims.

A Conditional Fee Agreement, commonly known simply as a CFA , is a type of ‘No Win, No Fee’ legal funding. It is an arrangement between a legal representative and a client where payment of the legal fees are deferred until the end of the case and the obligation to pay those fees depends on whether the case is won or lost.

It is common for professional negligence claims to be funded by way of a CFA.

Solicitor’s Fees

If a CFA is entered into, the solicitor will agree to defer payment of his fees until the end of the case.  If the case is lost, the fees are written off, hence the term ‘no win, no fee’. If the case is won, the client is liable for the fees together with an uplift known as a ‘Success Fee’.  Some fixed costs can usually be recovered from the losing party, but the client will be liable for any costs not recovered, plus the Success Fee.

What is a Success fee?

A Success Fee represents payment for the risk the lawyer has taken in dealing with a case where there is a chance he will not be paid for the work carried out. It is calculated as a percentage of the solicitor’s costs rather than being a percentage of the damages recovered, which many people assume is the case.  The percentage is set at the outset of the case based on the known risks of the case.  It takes into account the prospects of success, credibility, quality of evidence etc.  The Success Fee can be anything up to a 100% uplift on the costs.

If the client is successful, they will be personally liable for the Success Fee.

Counsel’s Fees

Many barristers also agree to work on a CFA basis which operates in a similar way as a solicitor’s CFA.

Legal Expenses Insurance

The loser generally pays a fixed sum in legal costs to the  winner. Claimants can however insure themselves against this risk and legal expenses insurance products are widely available on the market.  The premium for the insurance is payable by the client. Policies differ but most are self-insured and the premium is deferred.

Disbursements

These are expenses associated with the claim that are paid to third parties.  For example, expert’s fees, court fees, travel costs etc.

Our cap on what you will pay us if you win

If you win your case then you will become required to pay the costs we have incurred plus the success fee. We will deduct any fixed costs recovered from the losing party from your bill, but the balance is payable by you.

Because it is impossible to identify what all these figure will be at the outset and to allay worries that someone will be left out of pocket even if they win, we offer to cap the total of costs and success fee. This gives the client the guarantee that they will receive a minimum percentage of their compensation, whatever the final figures are.

For further guidance on Conditional Fee Agreements in professional negligence claims call us on 0333 888 0403 or email us at [email protected]

Do you think your injury claim was worth more than what you settled it for?

Are you unhappy with how the claim was dealt with?

Do you feel the solicitor didn’t handle the claim correctly?

Then you may be entitled to bring a professional negligence claim against the lawyers who handled your personal injury case.

Sadly, with pressure on law firms from the insurance industry, the judiciary and the government to reduce the cost of making a compensation claim, personal injury cases are increasingly being dealt with by unqualified staff with inadequate supervision. There is also the added burden upon them to turn cases around as quickly as possible to avoid cash flow problems.  This means that in many instances, key indicators are missed and mistakes are made. Injuries are frequently given insufficient time to stabilise before clients are pressured into settling their claim.

If you have been placed under pressure to accept an offer that you feel was too low or you believe that aspects of your injury claim have been overlooked, you may be able to seek compensation from your solicitor for professional negligence.  Even if the award seemed generous  at the time but you were hurried into accepting it and now further symptoms have developed, you may have a claim against your solicitor.

At Slee Blackwell, our team of Professional Negligence Lawyers have extensive experience of claiming compensation for clients who have been let down by a personal injury lawyer.  Professional negligence solicitor Emma Slade was previously employed as a lawyer dealing with accident and clinical negligence claims. She therefore has a unique insight on these claims and is able to bring a wealth of experience and skill to this specialist area, including claims for under-settling.

So, if you feel that your personal injury claim has been under-settled or your accident lawyer has let you down then call our FREE legal helpline on 0333 888 0403 or email us at [email protected] 

Inheritance negligence: Making a claim against a solicitor for failing to advise you of your inheritance rights

We are experts in inheritance negligence. For specialist guidance on making a no win, no fee compensation claim contact our free helpline for a case assessment.

There has been quite a furore in the news and on social media over the controversial decision in Ilott –v- Mitson, a Court of Appeal decision which saw a claimant’s award in an Inheritance Act claim significantly increased.

The facts of the case are relatively simple: Mrs Jackson had an estate worth about £500,000.  When she prepared her Will, she left the lot to charity with no provision for her daughter, Heather Ilott. She made it clear that she did not want anything to go to her daughter.  When Mrs Jackson died, Ms Ilott challenged the Will under the Inheritance Act on the basis that she was a “child of the deceased” and that “no reasonable financial provision” had been made for her.

There has been a history of cases dealing with what constitutes ‘reasonable financial provision’.  It had been rare for the courts to allow a Will to be varied to make a payment to an adult child until relatively recently. The Courts traditionally took the view that adult children are unlikely to have financial needs when they have the ability to work.  However, the law has evolved and adult claims under the Inheritance Act are now common. Section 3 of the Inheritance (Provision for Family & Dependants) Act 1975 sets out the factors that the Court will take into account when dealing with a claim. It includes the financial needs of the applicant and other beneficiaries, as well as any disabilities.

The phones here at Slee Blackwell have been ringing off the hook with people asking whether they can bring a claim against a solicitor for inheritance negligence where they have previously advised that an inheritance claim could not be made.

The test for bringing a claim for professional negligence is the “reasonably competent professional” standard. This means that a professional person will not be negligent if other professionals, with similar qualifications and experience, would have acted in the same way.

So, we need to look at what that ‘reasonably competent professional’ would have done at the time of the alleged negligence.  Before the latest court decision, many solicitors would have been considerably less gung-ho about bringing an inheritance claim.  We therefore need to look at the circumstances in which the advice was given and the relative legal merits of the Inheritance Act claim. Crucially, for the advice to be regarded as negligent that advice must have been ‘wrong’ in terms of what the law was prior to the latest decision, rather than what the position is now, following the court of Appeal’s verdict.

Prospective professional negligence claims therefore need to be appraised on a case by case basis.

If you feel you have a claim for inheritance negligence, please do not hesitate to call us for a free case assessment. If you would prefer to contact us by email then send details of your case to us at [email protected]