Professional Negligence Claims against Solicitors involved in Personal Injury Disputes

1. Professional Negligence Claims against Solicitors involved in Personal Injury Disputes SHEONA WOOD 20th April 2012

2. Consequences of Unhappy Client (1): Complaint to Firm – investigation and response within maximum of eight weeks Complaint to Legal Ombudsman’s Service (“LeO”) limit for compensation of £30,000 and time limit one year but proposals to increase time limit to 6 years and financial limit to £50,000 (award presently indemnifiable under PI Policy but not refund of fees) Notification to PI Policy of claim made or circumstances which may give rise to a claim against the firm as soon as possible.

3. Consequences of Unhappy Client (2) Firm reputation Non chargeable management time Direct Financial Cost – Policy Excess, Claims Record, Impact on Premium Payable

4. Statistics Professional Indemnity Notifications involving Personal Injury disputes amount to around 8% of all notifications to Qualifying Insurers Legal Ombudsmans Service (“LeO”) First Report showed that of Complaints made to LeO 9.83% arose from Personal Injury Disputes LeO First Report

5. Principal Causes of Claims: Missed Time Limits Delay in progressing claim Undersettlement Negligent Advice

6. LeO causes of complaints Poor communication , lack of costs information and delay LeO First Report

7. Missed Time Limits (1) • Principally arise from issue and service of proceedings • Ascertain and Prominently Record Limitation date on a specific file as soon as possible – get someone else to check it • Check again after receipt of medical records or other documents • Drill down into Date of Knowledge if relevant • Case Management Systems – File Reviews • Watch out for unusual limitation periods – accidents abroad – MIB claims – Criminal injuries • Be hyper vigilant if instructed late

8. Missed Time Limits (2) • Avoid issuing protective proceedings – risk of them being left on a file • Check, check and check again the identity and address of the correct Defendant • Are solicitors instructed to accept service? • Method of service ensure instructions are followed

9. Delay in progressing the claim • Obtain clear instructions as soon as possible – type your note • Obtain medical and other records as soon as possible – persevere • Obtain expert medical evidence as soon as possible – scrutinise this • If your assessment is that the client will not be successful and you do not wish to act make this clear as early as possible together with a warning as to limitation and consequences

10. Undersettlement: • Keep a clear record of all instructions from client • Make sure all notes are legible and preferably typed – last attendance note syndrome • Do not settle too early • Monies due to Third Parties • Unforeseen consequences

11. Negligent Advice • What are you and what are you not retained to do – importance of client care letter • Funding options • Is this your particular field of practice? • Clear advice as soon as possible • Is Client on means tested benefits? • Part 36 Minefield – never deviate from the stipulated wording

12. Case lawLimitation - Preston v BBH Solicitors • 2002 Claimant visits GP x-rays find pleural plaques • March 2003 Claimant consults BBH • November 2005 proceedings issued against his former employer • December 2005 Consultant confirms presence of pleural plaques and diagnoses underlying asbestosis

13. Caselaw (continued)Preston v BBH Solicitors • 2007 Claimant changes solicitors • 2009 Issues proceedings against BBH alleging negligence in issuing proceedings outside limitation period • Found at first instance and in the Court of Appeal no negligence the date of knowledge was December 2005 when the Consultant confirmed the condition and proceedings were issued before then

14. Caselaw (continued)Experts - Boyle v Thompsons Solicitors2012 EWHC 36 (QB) • Claimant made a claim to the Criminal Injuries Compensation Authority • An award was made of £5,150 • Claimant instructed the Defendant firm to deal with an appeal • The issue in the appeal was whether her Post Traumatic Stress Disorder was permanent • Her appeal was rejected. The Claimant brought a professional negligence claim against her former solicitor. • The Claimant claimed that as there was a conflict between the psychologist and the psychiatrist as to whether her PTSD was permanent the solicitor should have gone back to the psychiatrist again • The Claimant lost her case in negligence. The expert was independent entitled to that opinion and there was only so many times the solicitor could try and alter the expert’s view. In any event all reports had to be disclosed to the CICA. It was found that the solicitor had done all she reasonably could.

15. Caselaw (continued)To whom are duties owed?McLeod v Crawford 2010 CSOH at 101 • Mr McLeod developed pleural plaques through exposure to asbestos at work • Two settlement offers were made by his employer one for £10,000 in full and final settlement or £5,000 as provisional damages • Only the first offer was mentioned to the Client; it was accepted • Mr McLeod died from Mesothelioma – no further claim could be brought against the Employer

16. Caselaw (continued) • Claim brought against solicitors by wife and children for failing to advise him on the second offer which would have preserved the cause of action against his former Employers • No duty of care. (1) His wife could sue as Executrix no need for her and children to sue in their personal capacity. (2) Potential for conflict of interests. (3) No necessary proximity

17. Caselaw (continued)McLeish re HibbertPownall & Newton (a firm) v Whitehead 2008 EDCA SIF 285 • Claims were brought against Solicitors and Counsel in respect of the undersettlement of a wrongful birth claim following a baby being born with spina bifida in 1986. • Proceedings were issued against the Health Authority in the underlying claim in January 1989 including the cost of care. • By March 1995 action had still not been set down for trial. Claimant mother committed suicide. • Father became Claimant by substitution in June 1998. • January 1999 claim settled for £20,000 as Health Authority were trying to strike out claim for want of prosecution.

18. Caselaw (continued)McLeish re HibbertPownall & Newton (a firm) v Whitehead 2008 EDCA SIF 285 • Father’s personal claim against Solicitors and Counsel rejected. The Solicitors had not been retained by him other than in his role as administrator.

19. Caselaw (continued)Causation / Damages • Lost chance doctrine often applicable e.g. Haithwaite v Thomson Snell & Passmore • Legal burden of proof on Claimant evidential burden on Defendant • Real and substantial chance of success • Prospects assessed as a percentage or more rarely multiple percentages • Events / information unknown at notional trial date can be taken into account. HibbertPownall Newton v Whitehead (see earlier) Dudarec v Andrew 2006 1 WLR 3002 Curwen v James 1963 1WLR 748

20. Policy ExclusionsSutherland Professional Funding Ltd v Bakewells 2011 EWHC 2658 • Personal Injury firm agreement with funder, Sutherland. Firm could draw down disbursement and ATE Insurance funding for Claimant Personal Injury clients. • Unsuccessful cases – ATE Insurers refuse to indemnify unsuccessful Claimants. • Firm therefore owed Sutherland money under the Loan Agreement • Sutherland sued firm under the Loan Agreement. • Firm sought indemnity under its PI Policy. • Held: (1) the claim for indemnity did not arise from Private Legal Practice (the Loan Agreement was for the benefit of the firm and Sutherland’s claim was by someone to whom the firm owed no professional duty). (2) firm’s liability was a trading debt and therefore excluded from cover.