CLINICAL & PROFESSIONAL
NEGLIGENCE EXPERTS
 

Solicitor Negligence for
Medical and Personal Injury

The personal injury sector has seen significant growth over the past 15 years, with many Solicitors now specialising in pursuing compensation claims. Most of those Solicitors handle claims on a ‘no win no fee’ basis.

Government reforms designed to speed up the claims process and reduce the costs of seeking compensation, have led to some law firms, in particular those specialising in personal injury claims, seeking to find new ways to increase their profit margins. And for some of those firms, the level of service being provided to their clients has been compromised.

As a result, there have been more complaints and hence negligence claims brought against personal injury solicitors for poor handling of claims. Some examples of negligence include:

Missing limitation dates

Limitation is a vital part of any claim, as this defines the latest date by which a claim must be filed with the court. In personal injury claims the limitation date is usually three years from the date of the accident/incident (or knowledge of the damage caused). There are differing 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, your Solicitor they may have acted negligently. If you can demonstrate that your claim had merit prior to the claim being refused on limitation grounds, you may be entitled to pursue them for your losses and damages in negligence for your injuries.

Failing to comply with a court order or deadline

If you Solicitor has failed to comply with court orders or deadlines, or not acted promptly when needed, in relation to claims which are litigated (issued at court), and are therefore subject to case management court directions, your claim may have been compromised.

Recent amendments to the Civil Procedure Rules and the application of those rules by the judiciary have led to a stricter approach to non-compliance with court orders.

This stricter approach taken has caused many problems for Solicitors.

If your claim has been struck-out of court preventing you from recovering your compensation, your solicitor may have been negligent. You may, 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 appropriate compensation for personal injuries and losses incurred. Due to pressures and targets for settling personal injury claims we have seen a rise in negligent under-settlements.

In addition, we have seen a large increase in the number of inexperienced personal injury claims handlers who are not legally qualified. This, in turn, has further exacerbated the volume of claims being under settled, due in part to the lack of proper investigation of injuries, or the provision of clear and sound legal advice necessary for clients to make informed decisions on 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 pursuing a claim for personal injury, you will likely need to claim for other losses associated with the accident and injuries, including:

  • Loss of earning
  • Care and assistance
  • Rehabilitation and other treatment charges
  • Future losses — the cost of surgery
  • Disadvantage of open labour (employment) market claims (Smith V Manchester) awards (limited employment opportunity claim)
  • Vehicle losses
  • Damages items

There are many more losses which could be included in this list. If you consider that your Solicitor did not recover some of 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 defendant

It is commonplace 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. Issuing proceedings against the wrong party is one such reason this may occur.

Investigations should be carried out by your Solicitor to ensure 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 wrong defendant, then you will not be able to recover damages as the party has no interest in the claim. This could result in you becoming liable for the opponent’s 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 are trusted by those who instruct them due to their qualifications, knowledge, and experience, to guide them in a wide range of legal matters. And as a result, the advice Solicitors provide can wholly determine the outcome of a problem/dispute or issue. It is no exaggeration to say, the lives of clients may be the hands of their Solicitor.

If you consider that your legal advisor, perhaps Solicitor or Barrister, has provided an incorrect 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.

It is important to note that Solicitors often instruct barristers on your behalf and as such, you may not have a contract directly with the barrister. Even if this is the case, if the barrister’s advice is incorrect and the Solicitor relies on it, then the solicitor may not be able to escape liability. Remember, your Solicitor had a duty of care to ensure that the advice you received was 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, they may be negligent. For example, if a claim is 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 a fundamental impact on the outcome of a claim

Your Solicitor might be negligent if they failed to gather all of the necessary evidence in support of your case, which later causes your claim to be unsuccessful. An example of failing to investigate correctly might include not obtaining statements from an independent witness which supports your version of events, and losing a claim for damages as a direct result.

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.

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