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Professional negligence claims causation

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Posted by Susan Hopcraft on 08 February 2012

Susan Hopcraft Partner

Solicitors negligence; but would you have done anything different? 

One of the key elements in recovering damages following solicitors negligence is proving that their negligence caused you loss. In other words, can you show that you relied on the advice and would have done something different if you had been advised properly? 

That sounds as if it should be very easy in every case, but a relatively recent high profile claim against a solicitor went to appeal before it was accepted that the client had been relying on the advice. The case neatly summarises the need to show that the solicitors negligence has in fact caused loss.

Levicom vs Linklaters

In Levicom vs Linklaters the trial judge held that Linklaters, a leading London law firm, had negligently advised Levicom, a telecommunications company active in the Baltic States, in relation to their claim for breach of contract against another European telecoms company. However, because there was no evidence that Levicom would have settled the dispute even if Linklaters’ advice had been less optimistic, the judge ruled that Levicom had suffered no damage in consequence of the solicitors negligence. Levicom were awarded damages of just £5, and were ordered to pay Linklaters’, no doubt substantial, defence costs.  

This must have been received as nothing short of a disaster by Levicom, in circumstances where the judge agreed that solicitors negligence had occurred: salt in the wound, perhaps. 

The appeal court looked more closely at the advice sought by Levicom when they were considering whether to proceed with the dispute or settle. They agreed that the advice from Linklaters was too strong and failed to address the extent of loss suffered by Levicom. Crucially, they gave far greater weight to the several reassurances that the client had sought from their legal advisers leading up to their decision to press forward.  

The appeal judges commented: 

“One has to ask why a commercial company should seek expensive City solicitors' advice (and do so repeatedly) if they were not to act on it.” 

“When a solicitor gives advice that his client has a strong case to start litigation rather than settle and the client then does just that, the normal inference is that the advice is causative. Of course the inference is rebuttable – it may be possible to show that the client would have gone ahead willy-nilly. But that was certainly not shown on the evidence here. The Judge should have approached the case on the basis that the evidential burden had shifted to Linklaters to prove that its advice was not causative.”

Summary

It is not enough to prove solicitors negligence; their failings must be linked to a proved loss. However, it is reassuring to know that the courts in this case required the professional to show that the client did not rely, rather than the other way round.

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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