What Happens When A Solicitor Gets It Wrong?

Having to instruct a solicitor is often an indication that there is a problem which needs sorting out. Unfortunately, though, sometimes that problem doesn't merely fail to get solved but can even be made worse due to the negligence of the solicitors themselves. When the case involves personal injury, it can happen in so very many ways.

For example, in most cases the claim has to be officially issued with the court within three years of the incident which caused the injury. You'd perhaps find it hard to believe that this can be missed but it certainly can. A diary date might have been wrongly typed into the system or perhaps simply a solicitor is overwhelmed with his or her caseload or the specific needs of your own case such as gathering evidence, talking to experts or even negotiating with the other side. In some cases when the time limit is missed an application can be made to extend it but ultimately it's possible that a claim may fail on this ground alone.

Another way things can go wrong is where a solicitor misses a deadline for exchanging particular types of evidence which might ultimately lead to key evidence being excluded and significantly weakening a case as a result. Then there are the cases where the claim itself is just run in a low quality way which really doesn't do the claim any favours. This might be failing to gather key evidence, it could be instructing inappropriate experts or even missing whole heads of loss.

Whatever it is, a big question is whether or not the solicitors actions give rise to any liability. As you might have guessed by this stage, not even that has a simple answer. However, the broad principle is clear and it comes from a case called Bolam v Friern Hospital Management Committee [1957] 1 WLR 582. That case concerned the medical profession and in that context Mr Justice McNair stated that a professional:

"is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art."

The point here is that in order to prove professional negligence you don't just have to show that the outcome wasn't what might have been hoped. You have to show that the practice was not such as to be accepted as proper by a responsible body of skilled solicitors. So the standard is not perfection and indeed what is proper might taker in a wide range of different practices some of which might be better than others.

Yet despite the bar being higher than perhaps some might expect, sometimes conduct does fall to those standards. If that does happen it might be time to do the very last thing you probably want to do in those circumstances and that is to take yet more legal advice. The only consolation is that win or lose, this is very much the exception and most cases run their course without giving rise to the need for such action.