Introduction

It is perhaps not surprising that claims against solicitors arising out of personal injury litigation have increased significantly over recent years. These cases are handled often in a commoditised environment, very often by junior fee earners.

With the introduction of the Fixed Recoverable Costs regime many personal injury firms have also diversified. They have turned in on the profession by identifying professional indemnity claims as a new line of business in an increasingly challenging market.

Mistakes are inevitable, but there are tools available to help defeat, or reduce, any claims when they arise.

Procedural Tools

Where the solicitor has failed to comply with Directions or an Order, or is otherwise in default, it may be possible to apply for relief from sanctions.

Litigation practitioners will be aware of the developments in case law in this area. This line of cases began with Mitchell v News Group Newspapers Limited [2013] EWCA Civ 1537. Subsequently cases for example Denton v TH White and Ors [2014] EWCA Civ 906 saw a move away from the very draconian stance taken in Mitchell.

Continuing to act in these circumstances usually gives rise to conflict. The client's permission should be obtained if a firm continues to act and can see a potential route to remedy the default. Insurers should be notified. In many cases it is worth the firm/Insurers funding an application for relief as, if successful, it could avoid the prospect of a claim arising.

Similarly, it is not unusual for solicitors to miss the three year deadline for limitation in personal injury claims.

Section 33 of the Limitation Act 1980 can assist in these circumstances. As we all know it allows a Claimant to pursue a claim against a Defendant outside the statutory three year period where a Claimant can show that its prejudice in not being able to pursue a claim outweighs any prejudice to the Defendant.

What constitutes "prejudice"? The Defendant must show more than financial prejudice. The loss of a "windfall" limitation defence is not sufficient. Rather, a Defendant must show evidential prejudice, so that the delay in bringing proceedings means that its ability to defend the claim is compromised.

Accordingly, in cases where the delay in issuing the claim is minimal, and/or where evidence of the injury and loss were provided at an early stage, or where there has been an early admission of liability, it is likely that Section 33 will apply to provide relief.

If a Claimant has appointed new solicitors, and they fail to at least attempt to take proper steps to rescue the underlying claim, then that could amount to a causation defence for the original solicitor, or at least could represent a serious failure by the Claimant to mitigate loss which, if established, will result in a reduction in the damages awarded.

Loss of Chance

Most failed personal injury claims arise from allegations that the Claimant has, as a result of a solicitor's negligence, failed to recover all or some of the damages due to them. This is often because the solicitor has omitted to claim all of the relevant heads of loss.

Claimants often try to conduct a trial of the underlying claim. While some evidence may be needed in relation to the Claimant's injuries and quantum, the Court will, in a professional negligence claim, assess the value of the Claimant's lost chance, on a percentage basis. It will take a realistic and commercial approach having regard not only to the available evidence on liability and quantum but also, for example, the financial position of the parties, their motives and intentions.

This can enable a Defendant solicitor to achieve a discount to the sums claimed, however, the Claimant must only show his or her loss of chance to be "more than fanciful". The threshold is therefore low.

Evidential Issues

Although the Court will not conduct a re-trial of the underlying personal injury claim, some evidence can also help reduce the value of the claim.

The Claimant's medical records can assist because they may include details of unrelated medical conditions that can be used to reduce or defeat certain heads of loss. This can also be used to diminish the Claimant's credibility as a witness.

Records from the Department for Work and Pensions are also useful. Applications for benefits and work capability assessments will set out an independent assessment of the Claimant's condition. Employment and Occupational Health records will show whether the Claimant lost his job as a result of an unrelated work performance issue.

Desktop 'Claimant Profile Reports' and covert surveillance evidence can assist in defeating certain heads of loss and, sometimes the whole claim. Where there is cause for concern in relation to credibility or causation, expert medical evidence is key.

Risk Management Tips

  1. Diary systems, with appropriate escalations to senior fee earners, should be implemented in relation to all key dates.

  2. Case Management Systems, if used, should be updated regularly to reflect new processes and procedures, and again should provide for appropriate supervision.

  3. Attendance notes should be created and client's instructions should be recorded fully on files.

  4. Care should be taken to advise fully, and in writing, on issues relating to liability and quantum, and any offers to settle.

  5. Any potential claims should be notified to Insurers promptly and the Claimant should be informed as they may need to appoint new solicitors or obtain independent legal advice.