What is professional negligence?

* Personal injury under-settlement

Arriving at a suitable settlement for a personal injury claim is not an exact science. There is no set formula for insurers to follow and each case turns on its own particular circumstances. Often, junior staff members are used to save costs or clients use personal injury claims companies which advertise widely but do not have the specialist experience required to litigate and negotiate settlements. A lack of proper understanding of medical documents and the injuries they detail result in some claims being settled for less than they should be and a disgruntled client may well have a claim against his solicitors for giving him negligent advice. This is what happened in the case of Hickman v Blake Lapthorn and Fisher, where the claimant suffered a brain injury while travelling as a passenger in a car which was involved in a crash. He suffered extensive cognitive difficulties and was advised by his solicitor and barrister at the door of the court to settle for £70,000, which he was reluctant to do. Subsequently he sued his legal advisers on the basis that their advice was negligent and as a result his claim was under-settled. On appeal, the judge found in his favour that his claim had in fact been worth around £500,000. The claimant was awarded compensation to make up for this shortfall.

* Statutory barred case

The statute of limitations exists to protect defendants from claims being brought after long periods of time have elapsed, because such cases are difficult to defend. In relation to professional negligence claims, this time period is six years, so if a solicitor (or other similar professional) gives incorrect advice and the claimant misses the deadline of six years within which to bring an action, their right to compensation will be lost and the claim will be time-barred by the courts. There are, of course, a number of exceptions. For example, in cases where evidence has been deliberately concealed from the claimant, the time limit will not run until the evidence is discovered, but under normal circumstances, if six years have gone by, the time limit to sue the advisor and claim compensation will have run out. For personal injury claims, the limitation period is even shorter – a claimant has three years in which to bring a case. The liability under these rules is very strictly set by law so it is important not to miss the deadlines for filing cases. Most cases turn on when the time period is considered to begin running, and there is a large body of law on the subject, for example, Lane v Cullens Solicitors and others, in which the court confirmed that the claimant’s limitation period had expired before he had even filed the claim for negligence against his solicitors.

* Negligent conveyancing

Moving house is widely acknowledged to be one of the more stressful events that people experience in their lifetimes and when something goes wrong with a property conveyance, the problems created can be far-reaching. It is not unusual for people’s most valuable asset to be their home and when such large sums of (often borrowed) money changes hands, even small mistakes can end up leaving people without a roof over their heads. Unfortunately, where there are large sums of money being borrowed and transferred, there will always be those attempting to perpetrate fraud and it is essential for solicitors and conveyancers to be on the lookout for such scams. A case in point is Lloyds TSB Bank Plc v Markandan & Uddin, where the firm of solicitors acting for the buyer of a property were found negligent when they handed over money to complete a conveyancing transaction without receiving the necessary documentation and deeds that would transfer ownership, or without receiving any undertaking that this documentation would be provided. The claimant had arranged a mortgage on the property and handed money to the defendants to complete the transaction, which turned out to be a fraud. The ‘sellers’ solicitors were not real and the actual owner of the property had no intention of selling, and was completely unaware of what had been going on.

* Negligent valuations housing market

With the global economy in decline and countries in a period of sustained recession, house prices are falling and this inevitably leads to complaints that consumers have been led into over-paying for their property by negligent surveyors who overvalue their assets. When belt-tightening is paramount in people’s minds, no-one wants to believe they have paid too much for a property, whether it be their home or an investment asset. But the buyer’s purpose is key in this situation. In the case of Scullion v Bank of Scotland, the claimant sued Colleys, a firm of surveyors, for compensation for negligently overvaluing a buy-to-let property. The claimant was not able to achieve his anticipated monthly rental for the property and subsequently sold it at a loss. The court found that the surveyor did not owe a duty of care to Mr Scullion, who – being an investor - could have obtained his own valuation report, rather than relying on the one carried out by Colleys for his mortgage lender. The situation is different for purchasers of ordinary residential property. In these circumstances, it is normal for a purchaser to rely on the valuation report provided to their mortgagee.

* Mistake on divorce paperwork

Going through a divorce is an extremely upsetting time in anyone’s life and the intricate legal process necessary to conclude a marriage is likely to make the situation more stressful. Divorcing spouses are usually uninterested in trying to make life easy for each other and people often have totally unrealistic expectations of what the law can do for them. Emotions rather than logic pervade at these times and the divorce is usually a bitter experience for everyone because parties get carried away with what they think is fair, rather than what is legally achievable for them. There is a great deal of paperwork involved in settlement negotiations and all orders including financial settlements and agreements relating to children must be negotiated and sealed by the court. Making a mistake could have huge negative consequences and advisors must be extremely careful. When Mrs Hutching used her local lawyers in Cheshire to handle her divorce arrangements, her solicitor made a mistake on the form which was immediately exploited by her ex-husband who accepted her offer of a financial settlement. After the divorce was finalised Mrs Hutchings sued her lawyers for negligence in making the mistake. She received £25,000 in compensation for her claim.