Legal Professionals’ Negligence

By ‘legal professionals negligence’ we mean someone who provides legal services as an authorised member of a regulated legal profession.

The terms ‘Solicitor’, ‘Chartered Legal Executive’ and ‘Barrister’ are protected titles and cannot be used by anyone who is not qualified as such and authorised to practice law by their professional regulator.

We also include paralegals (non-qualified individuals who assist such legal professionals with their work), who work within a professional practice, (such as a firm of solicitors), as a legal professional will have ultimate responsibility for a paralegal’s work.  
We do not use the terms ‘lawyer’ or ‘counsel’ in the context of legal profession negligence as these are not protected titles. 

They are general terms to describe anyone who practices law, or holds themselves out as doing so.

The difference between Solicitors, Legal Executives, and Barristers

Solicitors and Chartered Legal Executives both provide legal services directly to their clients; they take instructions, draft documents, correspond with other solicitors and third parties, negotiate on behalf of their clients, conduct litigation, settle disputes, provided advocacy services, complete transactions, collate and assess evidential documents, assess the value of claims and perform other related functions.

The main difference between a Solicitor and a Chartered Legal Executive is that a solicitor is trained and qualified to practice law over a wider range of subjects than is a Chartered Legal Executive. Both are qualified to the same level.

A Barrister provides specialist advice on specific legal issues, drafts documents (particularly court documents) and provides advocacy services within all courts.  Barristers usually take their instructions through solicitors, and although they can now take instructions directly from a client through the Direct Access Scheme, but there are some limits to the extent of services they can provide.  Not all barristers are authorised to conduct litigation, and they cannot handle client’s money, whereas solicitors and Chartered Legal Executives may do so through their firm.

Examples of Solicitor or Chartered Legal Executive negligence:

  • Solicitor dealing with the purchase of a property fails to spot that the land is burdened by an obligation to repair the locals roads that will be expensive to comply with
  • A Chartered Legal Executive makes a drafting mistake when preparing a will that means the property in the estate does not go to the person it was intended for
  • A solicitor dealing with a commercial contract uses the word ‘and’ instead of ‘or’ and commits his client to an open ended financial obligation
  • A Chartered Legal Executive dealing with a personal injury claim fails to assess his injured client’s loss of future earning capacity and settles the claim for much less than it’s true value

Examples of barrister negligence

  • Providing an opinion on the interpretation of an aspect of law which is incorrect
  • Drafting a document which fails to state the case that the client wishes to bring or defend
  • Providing trial advocacy services which are so poor that they have adverse consequences for the outcome of the case.

Proving Negligence

In all negligence claims the person complaining must be able to prove each element of their claim.

  • A duty of care owed by the professional to the person claiming;
  • A breach of that duty (the act complained of);
  • Loss (this means financial loss);
  • Causation (there must be a close link between the breach and the loss).

Professional Negligence claims are complex and very fact specific. A claimant may well be able to show there is a duty, and a breach, but unless they can also show they have suffered a loss that is caused by the breach, then the claim will fail. 

Funding a claim

Professional Negligence claims can be very expensive to run.  We will explore with you, all options available for funding your claim and in a suitable case, we may be able to offer a conditional fee funding arrangement (‘CFA’).

Alternative ways to resolve your claim: Alternative Dispute Resolution (‘ADR’)

Litigation is not the only way to resolve a dispute, nor is it always the best way.  There are a number of options for alternative dispute resolution that may provide a more appropriate way for you to settle a professional negligence claim.

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