The Professional Negligence of Solicitors

When you instruct a solicitor in court and litigation cases, such as employment tribunals, serving a claim or Judicial Review, you don’t expect to be in a situation whereby they have not acted within the legally required time limit for a claim. Ultimately, the client loses out and the knock-on effect can have serious consequences, not just financially but personally as well. 

 

In most cases, clients aren’t aware of these time limits but it is considered negligence by the solicitor and therefore, the injured party is legally entitled to raise a dispute and make a claim for professional negligence. 

 

 

First of all, let’s define professional negligence. Professionals are practitioners with a specific set of skills, such as a solicitor, doctor, surveyors, accountant or teacher. To make a professional negligence claim, the client must be able to demonstrate that the loss suffered is directly attributable to the professional, i.e. they have failed in their duty and are therefore negligent. The client must prove: 

 

● The professional owed a duty of care. 

● The professional breached that duty of care. 

● The client suffered damage or loss as a result of the professional’s breach of duty of care, known as causation. 

 

When we talk about ‘duty of care’, it is a legal ‘duty’ that any professional practitioner acts according to a standard of care, and skill, when they are dealing with their clients. Even if there is no specific contract between the professional and the client (duty of care responsibilities are usually set out in the contract), when a professional is instructed by a client, they assume responsibility for the client and must demonstrate duty of care. 

 

 

According to the Limitation Act 1980, solicitors are given statutory time limits for a range of legal processes and cases. They must bring the litigation claim to court within these time periods. If these deadlines are missed, the client’s legal rights will be time-barred and there is no going back from this. A time limitation period can be extended if the client alleges fraud against the professional, i.e. the claim is due to the professional’s fraudulent activity. The limitation period will then start from the date the fraud was discovered. 

 

● Civil claims – these should be served within six years in England, Wales and Northern Ireland. In Scotland, it is five years. However, this can be extended in special circumstances, i.e. when the negligence is discovered after deliberate concealment by the professional, such as concealing or omitting relevant information to the claim. Civil claims include tort and claims in respect of deeds. 

● Employment cases – this is usually in the form of a tribunal and the time limits within which proceedings must be issued are generally three months. 

● Personal injury – a personal injury claim must be brought to the court within three years from the date of the injury, or date of knowledge. With regards to children, it is up to the age of 21, i.e. at any time before the child turns 21 years of age. 

● Human rights – these cases must be brought to court within a year of the verdict, or event, which caused the breach of human rights. 

● Judicial Review – whilst it is better to bring these cases to court as soon as possible following the ruling or verdict, there is a three-month time limit. 

 

It is the solicitor’s duty of care to ensure that all the relevant paperwork has been drafted and the necessary legal documentation has been served in respect of a claim in a timely manner. They are also required to respond to all correspondence on behalf of the client, according to court proceedings, and keep the client updated with progress. 

 

 

Whilst it can sometimes be hard to prove professional negligence, seeking advice and getting the right help in order to build your case is essential. No case is the same as another; professional negligence is a complex legal process and an expert in this area will be able to ensure the evidence is available to support your claim. 

 

Any litigation claim has to follow the Civil Procedure Rules 1998 (CPR) - more specifically, the Pre-Action Protocol for Professional Negligence (professional negligence PAP). This came into effect in May 2018 and all professional negligence claims must adhere to these guidelines. 

 

Although it is better to try to settle a claim out of court, i.e. without having to issue the paperwork for formal proceedings, if it does go to court the PAP has set out a specific framework to follow. Within this framework is a set timetable – both parties have to comply with this timetable – and the exchange of information is actively encouraged to try and reach an early settlement. 

 

However, it is worth noting that PAP does not apply to professional negligence claims against professionals in the construction industry such as engineers and architects, and nor does it apply to professionals in the healthcare industry. With these professional negligence claims, the Pre-Action Protocol for Construction and Engineering Disputes and the PAP for the Resolution of Clinical Disputes or the PAP for Defamation Claims respectively apply. 

 

Whilst there is a time limit for professional negligence claims – six years – or the claim is considered statute barred, if that time period is reached and the client only just discovers the impact of the latent damage, it can be extended three years from the date the material facts were discovered. 

 

If you think a professional has breached their duty of care in respect of your case or has missed a legal time limit, contact us at DSM Legal. Our experts in professional negligence cases are ready to advise and guide you every step of the way. We also handle a wide variety of accident and serious injury claims at work, including spinal cord injuries, slips, trips and falls. We work on a ‘no win, no fee’ basis, ensuring the entire legal process is risk-free, and will not cost you anything if you lose. Contact us today to see how we can help with your claim.