Claimant errors in professional negligence claims

There is no legal requirement for a claimant to instruct a solicitor (or any other type of lawyer) in order to pursue a professional negligence claim and, where the value of the claim is relatively low, it may not be proportionate to do so either. However, going it alone as a litigant in person can be a bewildering and extremely stressful experience.

While there is undoubtedly an ever-increasing volume of information available online to assist and guide litigants in person, that information is rarely complete or case specific. As a result, there is considerable scope for it to be misunderstood and/or misapplied.

On a number of occasions, we have received instructions from claimants, including other solicitors, who have attempted to pursue a claim themselves and have run into difficulty. While we have been happy to take over the conduct of the litigation and work collaboratively with them, the delay to our instruction has meant that the claim has taken much longer to resolve and, in some instances and where prior mistakes have been made, become more difficult to resolve.

Should it be of interest, further guidance on whether or not to instruct a solicitor is available in our related article: Professional negligence claims – Do I need a solicitor?

All civil claims, including claims for professional negligence, must be commenced within the time limits imposed by the Limitation Act 1980. If not, they become time-barred. The application of these time limits can be complicated and we have produced a separate guide that explains how they relate to claims for professional negligence: Time limits for professional negligence claims – FAQs

In some of the cases we come across, claimants have not appreciated either the existence or the implications of these time limits. As a consequence, they have then expired while the claimants have been seeking either to mitigate their losses or to resolve a related complaint.

However, failing to act expeditiously is not only a limitation issue and can have a number of other adverse consequences. These include, but are not limited to, the loss of important evidence, the demise of the defendant firm or the expiry of its professional indemnity insurance cover.

As the victim of professional negligence, it can be very difficult for some claimants to take an objective view of the events giving rise to a claim, or the manner in which the professional firm has responded to it. This can be all the more so, where a claimant is pursuing the claim as a litigant in person and without the benefit of advice from a seasoned solicitor.

Unfortunately, a lack of objectivity can lead to a poor assessment of the merits of the claim and, in turn, a misaligned expectation of success. In cases where this occurs, we have seen claimants incur unnecessary costs themselves (as well as become liable for the significant costs incurred by the defendant firm) pursuing allegations and applications that do not advance their claim.

When faced with a significant financial loss, and particularly a loss of the type which a professional was specifically retained to guard against, some claimants consider that a defendant firm has a moral obligation to compensate them for that loss.

In such cases, claimants can be surprised when the defendant firm appoints solicitors to represent it and respond to their professional negligence claim, and when those solicitors do so robustly and with an unsympathetic conviction.

While a moral duty may well arise, from a defendant’s perspective issues of morality tend to have a more limited bearing on the resolution of a claim. That is because not only are many professional defendants commercial entities, rather than private individuals, but also because control over the conduct of the claim often rests not with the firm itself but with its professional indemnity insurer.

Moreover, and as it has no direct relationship with the injured claimant and owes no contractual obligations to a claimant, that insurer is free to prioritise its own commercial interests ahead of those of the claimant. Accordingly, and where solicitors are appointed to represent the defendant firm, their role and professional duty will be to support the best interests of that firm and its insurers, whether or not that assists the claimant.

From private individuals to large corporations, professional negligence claims can be highly emotional and stressful for those involved.

Unfortunately, and for claimants, this stress can compound that which is already felt as a consequence of the financial loss or liability that has given rise to the professional negligence claim in the first place.

Different aspects of the litigation process can be more stressful than others, but commonly the combined effect of the adversarial nature of the process, its complexity, the potential costs involved and the lack of certainty of outcome, all take their toll.

While it is impossible to remove all of the emotion and stress, retaining the right solicitor can be a significant help in managing this aspect of the litigation and further guidance on this is available in our related article: How to find the Best Professional Negligence Solicitors

Determining what information and evidence is material to a claim is a skill that is honed through years of experience. Equally, determining what allegations to deploy and in what manner is as much of an art as it is a science.

It is not surprising, therefore, that many claimants become quickly overwhelmed by the volume of information and evidence that relates to their claim and are often inclined to treat all of it as critical, sometimes in the fear that it could be catastrophic if any part of it were to be overlooked or left out.

Unfortunately, this approach can cause the good material to be lost in, or diluted by, the bad material and for the claim to be weakened as a result. Where a solicitor is instructed to purse a claim on this basis, it can also lead to additional and irrecoverable cost.

In many cases, less can be more, and there are both costs and compensatory advantages in being selective when preparing, presenting and pursuing a claim for professional negligence.

For other tips on how to reduce legal costs in professional negligence claims, please see our related guide: How to reduce legal costs in professional negligence claims

The Civil Procedure Rules (commonly known as the ‘CPR’) which govern all civil litigation in England and Wales are vast. They are also subject to frequent amendments, judicial pronouncements and supplementary guidance. It is no wonder, therefore, that they present the solicitors acting for defendants with an array of opportunities to lay procedural traps and to capitalise on claimant ignorance and error.

Although it is possible to apply to the court for relief from the sanctions imposed by the CPR, such applications are by no means certain to succeed. Where they do not, the consequences can be severe and, in some cases, one professional claim can then lead to another. Moreover, and even if they do succeed, they can still give rise to additional cost and delay for claimants.

Experience, knowledge and careful preparation are all required to avoid falling foul of these traps.

To make a successful claim for professional negligence, it not simply enough to prove that an error or omission has occurred; it will also be necessary to establish that the mistake caused the losses for which damages are claimed.

Unfortunately, many claimants (and some of the solicitors acting for them) overlook the importance of causation, preferring instead to concentrate on the wrongdoing of the professional and the losses claimed. On these occasions, claimants can have a rude awakening.

Causation can be a complex issue and usually requires both a factual and legal assessment. Claimants overlook it at their peril.

It is relatively common for expert witnesses to be instructed in professional negligence claims, either to advise on liability or quantum issues.

Identifying a suitable expert is critical and, like solicitors, no two are the same. However, even if an appropriate expert is identified, providing that expert with proper instructions can be much more difficult and much more critical than some claimants realise.

Experts are not usually solicitors and cannot be relied upon to determine the nature or scope of the evidence required to support a professional negligence claim. Unfortunately, this means that some claimants incur significant costs, either by obtaining the wrong evidence or by failing to obtain sufficient evidence. In these instances, additional costs then have to be incurred obtaining appropriate evidence or damages awards can be lower because of a lack of evidence to support them.

These days it is relatively rare that a professional negligence claim will proceed as far as trial. Most are resolved at an earlier stage through one form of alternative dispute resolution process or another.

For those claimants who do reach trial, it can be unwise to assume that the court will be sympathetic to their claim. Professional negligence claims by their very nature are a serious matter and are treated as such by the courts. Finding that a professional has breached their duty of care is not done lightly and in doing so, the courts can rightly be expected to apply the law with rigour.

Where the court does find that a breach of duty has occurred, it is more likely to be sympathetic towards a claimant, but that is not a guarantee of success.

How sympathetic the court might be can also be influenced by the manner in which the claim has been conducted by the parties to it. Claimants who flout the rules or who abuse, intentionally or recklessly, the court process are likely to receive much less sympathy and accommodation than those who act proportionately and with respect.