20th May 2019
A recent decision by the Solicitors Disciplinary Tribunal (Howell Jones LLP 11846-2018) could have an interesting, and potentially unforeseen, impact on professional negligence claims.
Solicitors are only human and, like everyone else, can sometimes make a mistake. Often it can be that the mistake can be rectified easily and this resolves any problems. When that is not possible, or perhaps because of the severity of the mistake, it might be so bad that it constitutes negligence.
It can be the case that, where a solicitor has made an error which otherwise could be negligent if not remedied, they will offer to try and resolve the problem for the client. This can be particularly appealing as often the solicitor would agree to undertake that remedial work for free, whereas another firm would likely charge to do that same work. However, solicitors are under a strict duty to not act on behalf of a client when there is a conflict of interests: in circumstances which could give rise to a claim for negligence there is clearly a conflict.
Clients facing this predicament also need to wrestle with other considerations. For instance, if a mistake has already been made, what’s not to say that further errors might be made? Can the client continue to have confidence in that solicitor, or the firm? Has the fundamental importance of a solicitor/client relationship broken down? Has the ability to trust one another been lost? Also, there are strict time frames within which claims for professional negligence must be brought, and could it be that the solicitor is just trying to ‘run down the clock’ in order to protect themselves?
Background & Judgement
The background of this matter is that a husband had instructed the solicitors in relation to his divorce and, in reliance upon their advice, agreed a financial settlement. The client was then dissatisfied with the outcome and complained. The firm sought advice from a barrister who was of the view that the settlement was unfair, but indicated that it may be possible to set that agreement aside, albeit that there was a conflict of interest.
The firm explained the situation to the client, and his ability to seek independent legal advice, but also offered to try and rectify matters at no further cost to him. Whilst the client agreed with this course of action, sadly the set-aside application was not successful, and he was ordered by the Court to pay punitive costs in the sum of £35,000 to his former wife for having to defend that application (although this amount was covered by the firm, as per their agreement). The client then sought redress and recovered a further £50,000 arising from the situation which had arisen.
However, the Solicitors Regulation Authority then became involved and investigated what had taken place. In an agreed settlement, the firm had to pay a fine and the costs of the regulatory investigations, and in the judgment approving that outcome it was commented that: “…any situation in which a firm acted where there was an own client conflict was not a minor matter. The tribunal noted that the firm had not lacked integrity and had indeed taken a number of steps to try and resolve the matter to [the client’s] satisfaction. However, it had not ceased acting when it should have done…”.
If you have experienced a similar situation where a solicitor has made a serious mistake, whilst it might appear at first blush to be easier to just allow them to continue acting in order to try and resolve the problem, that is not necessarily the right decision. It would perhaps be preferable to seek advice from a new firm which you can be assured would be independent and free from the risk of any bias. Furthermore, if the mistake did result in an actionable professional negligence claim, then you may be able to include the new firm’s costs as a further loss you have suffered.
For further information on making a professional negligence claim against a Solicitor, or any other professional person then please contact Andrew Maidment, Associate Solicitor on 01256 844888 or email firstname.lastname@example.org
The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.
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