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Title: How do I sue a solicitor for negligence?

Date: 05 February 2014

Question

Living over here in Catalonia I only received the New Year's Day edition of MCN yesterday! I always read your column. On 1st January you responded to Bob Hollis whose solicitor had apparently failed to advise him of his right to appeal a decision made under the MIB untraced driver agreement. I am wondering what is required to achieve a "successful claim against (the) solicitor"?

Would Bob only have to establish negligence on the part of his solicitor or does he also need to demonstrate that his MIB appeal would have succeeded?

Nick Chown

Answer

In a claim for professional negligence against a solicitor you have to establish that you have lost the chance of a successful claim. It is prima facie negligence to fail to advise a client of the deadline for an appeal or to miss that appeal deadline if it is intended to pursue a claim to appeal. The key question is whether the negligence led to a loss. This is assessed as follows.

The trial judge deciding the matter would have to decide whether or not the appeal, had it been made in time, stood more than a fanciful prospect of success. This is a lower hurdle than having to prove it would (on the balance of probabilities – i.e. more than 50%) have been successful. If the court decides that the claim did stand more than a fanciful prospect of success (this is not defined but from experience of these cases I estimate between 15-25% prospect) it will go on to consider what percentage chance of success it thinks it actually stood and will assess the compensation payable to the client based on this percentage.

For example Firm A misses the appeal deadline. Their client instructs another solicitor to sue the firm for negligence. The judge accepts that the claim stood more than a fanciful chance of success. He then assesses that the claim was 75% likely to succeed. The full claim value would need to be calculated and had it been say, £100,000, the compensation to the client would be £75,000.

Such claims can be brought on a no win, no fee basis.

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