2020-05-15
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Most common types of solicitor negligence

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Posted by Susan Hopcraft on 24 July 2015

Susan Hopcraft Partner

Mistakes by solicitors can have drastic consequences. If you have received bad advice from a solicitor, or your solicitor has failed to do something which has resulted in a financial loss to you, you may have a negligence claim against them.

There are many ways in which solicitors can be negligent, but these are the most common mistakes that solicitors make:

  • Not keeping the details of your matter, or even the fact that you are a client, confidential (unless you have given permission for the information to be disclosed);
  • Providing advice to you while also acting for another party who has a conflict of interest with you;
  • Not explaining legal terms to you in language that allows you to understand it, preventing you from being able to provide proper instructions;
  • Missing court deadlines, resulting in you being unable to pursue a claim;
  • Failing to provide advice on all elements of your matter, for example failing to advise on the tax consequences of a significant transaction;
  • Simultaneously advising the director of a company in his capacity as a director as well as a shareholder;
  • Where you have sought advice as a couple, taking instructions from one of you and failing to ensure that both of you give these instructions.

Negligence by solicitors is very often as a result of faulty internal procedures rather than mistakes of law. Some of the most common mistakes are caused by issues with keeping accurate records and updated diary systems, a lack of supervision of junior staff or failing to obtain proper instructions from the appropriate client.

Even if you do not have a formal contract with a solicitor, if a solicitor has assumed responsibility for providing some sort of advice to you, and you reasonably have relied on it, you may still have a claim against them.

 

Recent examples

 

We regularly act on claims against solicitors; some recent examples being:

  • A failure by a solicitor to take instructions from joint owners of a property, allowing one joint owner to mortgage the property and benefit to the detriment of the other;
  • Missed limitation dates where the solicitor should have issued a claim for a badly drafted lease and another where a claim should have been issued for contractual damages following a house purchase;
  • Solicitors who fail to report or investigate the lack of access to a property being purchased, and similar title defects;
  • A failure by a solicitor to comply with a court order, resulting in a claim being struck out;
  • Bad drafting of an option agreement on a purchase of development land.

Causing financial loss

 

For a mistake by a solicitor to amount to a claim for negligence, it must have caused you loss. This means that you must be able to show that, but for the mistake of the solicitor, you would not have suffered the loss. Even if your solicitor has made a mistake and breached their duty to you, if that breach has not caused you any loss, the claim will fail. If your loss has been caused by something else, such as a decrease in property prices, independent of the negligence that is not enough. However, if damage has resulted, then a claim in negligence will aim to put you in the position you should have been in had the negligence not taken place.

 

Date of knowledge

 

Any potential claim must be brought within six years of the date of the loss. It is possible to bring a claim after this time if you only became aware of the negligence at a later date. If this is the case, you might be able to bring a claim within three years of the date of your knowledge, or the date you reasonably ought to have made enquiries into the potential negligence. There is also a final ‘long-stop’ date of 15 years in which you must bring your claim. For more information on the time, you have to bring a claim, see our recent article on this topic here.

About the author

Susan is a disputes and professional negligence lawyer, mainly in the financial services sector.

Susan Hopcraft

Susan is a disputes and professional negligence lawyer, mainly in the financial services sector.

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