The personal injury sector as seen significant growth over the past 15 years. Many Solicitors specialise in personal injury claims. Most Solicitors offer to deal with claims on a ‘no win no fee’ basis.
Recent reforms introduced by the current government in an attempt stream line the claims procedure, by speeding up the claims process and reducing the amount of costs. Has lead to some law firms in particular those that specialist personal injury claims, looking to re-invent new ways of increasing or maintaining their profit margins. This inevitably leads to a compromised service being provided to their clients.
The resulting effect is that there has been an increase in complaints and negligence claims brought against personal injury Solicitors for negligent handling of claims.
Examples on how a Solicitor could be negligent when handling a personal injury may include:/
Missing Limitation Dates
Limitation is a vital part of any claim, it is the date that you have to bring your claim against the defendant and to commence a at court. In personal injury claims the limitation date is usually 3 years from the date of the accident/incident. There are different rules for children and protected parties, please see our Limitation section for further information.
If your Solicitor has missed the limitation date on your claim and/or the court had refused permission to allow you to bring the claim due to an error made by the Solicitor to commence the claim prior to the limitation date, they may be negligent. If you can demonstrate that your claim had merit to begin with you will be entitled to pursue them for your losses and damages in negligence for your injuries.
Failing to comply with a court order or deadline
There has been much discussion in recent times across the legal profession in this regard. It applies to all claims which are litigated (issued at court) and are subject to case management court directions.
It may also apply to situations where your Solicitor has not acted promptly in a situation resulting in your claim being compromised.
Recent amendments to the Civil Procedure Rules and the application of those rules by the judiciary have lead to a more strict approach to enforcement for non compliance of court orders.
The strict approach taken by the court to compliance has caused many problems to Solicitors. If your claim has been struck out of court preventing you from recovering your compensation, your Solicitor may have been negligent. You would therefore be entitled to recover your damages from your former Solicitor.
Under-setting a personal injury claim (including medical negligence claims)
Solicitors have a duty of care to ensure that their clients obtain proper and appropriate compensation for personal injuries and losses incurred. Due to pressures and targets for settling personal injury claims we have seen a rise in the amount of negligent under-settlements.
We have also seen an increase in the number of inexperienced, non-qualified legal staff handling personal injury claims. This has lead to an increased amount of claims being under settled, due to the failure to investigate the injury or to provide clear and sound advice allowing you to make an informed decision about whether to accept an offer.
Common under settlement mistakes are:
- Accepting an offer without your permission/instructions
- Making an offer to settle without your permission/instructions
- Not providing clear advice to allow you to make an informed decision when accepting an offer
- Settling your claim when you are still injured and not advising you of the consequences.
Failing to identify heads of loss which should have been recovered
When pursing a claim for personal injury, you may also incur others losses which are associated with the accident and injuries. These could include:
- Loss of earning
- Care and assistance
- Rehabilitation Treatment charges
- Future losses — cost of surgery
- Disadvantage of open labour (employment) market claims (Smith V Manchester) awards (limited employment opportunity claim)
- Vehicle losses
- Damages items
There are more losses which could be included. If you consider that your Solicitor did not recover these items or simply failed to advise you that they could be recovered as part of your personal injury claim, then your Solicitor could be negligent.
Issuing court proceeding against the incorrect (wrong) defendant (fault party)
It is common place in personal injury cases that county court proceedings are issued. However from time to time things can go wrong, resulting in your claim becoming defective and time barred.
Investigations should be carried out by your Solicitor to ensure that they issue court proceeding against the correct defendant. Problems can arise when the defendant is a business and is no longer trading or the defendant is a company but trades under a different name.
If the claim is issued at court naming the defendant incorrectly, then it will have consequences for your claim as you will not be able to recover damages from a party who would have no interest in the claim. This could result in you becoming liable for the opponents costs or more seriously that your claim may be statute barred if the proper defendant takes issue with time limits.
Providing incorrect Legal advice (getting the law wrong)
Solicitors pride themselves on being highly qualified legal professionals. The general public instruct Solicitors for many reasons. The advice which they provide will influence the outcome of a particular problem/dispute or issue. The advice provided will almost certainly been relied upon by the client.
If you consider that your legal advisor has provided a legal opinion which you have relied upon, resulting in you suffering a financial loss at your detriment. Then you may be able to claim compensation for relying upon that advice if that advice was given negligently.
Solicitors also instruct Barristers on your behalf. You may not have a contract with the Barrister if the Solicitor has done this. However if the Barristers advice is incorrect and the Solicitor relies on that advice then the Solicitor may not be able to escape liability. The Solicitor has a duty of care to you to ensure that the advice provided is accurate and correct.
Failing to instruct an appropriate expert
If your Solicitor fails to instruct an expert to prove your claim and/or your claim fails due to insufficient expert evidence your Solicitor may be negligent. An example would be that if a claim is being brought against a surveyor for failure to investigate a property correctly and your Solicitor did not obtain an expert surveyors report confirming this, then your claim is likely to fail due to insufficient evidence.
Your Solicitor may also be negligent if they do not seek the court’s permission to rely on expert evidence or if they did seek the court permission but the court refused permission to obtain an expert report due to a mistake made by the Solicitor. Normally this happens when the Solicitor did not seek permission soon enough and there was a delay in making an application to the court.
Failing to properly investigate evidence which has had fundamental impact on the outcome of a claim
Your Solicitor may be negligent due to them not gathering all evidence in support of your case which may have an effect on the claim being successful. Examples of failing to correctly investigate would be not obtaining witness statements from an independent witness which supports your version of events and as a result of not obtaining this statement you lose your claim for damages.
Please note that the Solicitor will not be negligent if the independent witness does not want to co-operate or the witness is not traceable or even with the witness evidence your claim was likely to fail.
If you consider that your personal injury Solicitor has ‘let you down’ as a result of a negligent act or advice causing you financial loss, you may have a claim for compensation and other losses.