While you are not required to instruct a solicitor in order to pursue a professional negligence claim, there can be some real advantages in doing so. In this guide, we examine ten key issues that you may wish to consider when deciding whether to instruct a solicitor or go it alone.
Historically, and as a result of the wide availability of legal aid, the decision about whether or not to instruct a solicitor to pursue a professional negligence claim was relatively easy. However, following the withdrawal of legal aid by successive governments and increases to the cost of obtaining legal advice, the same cannot be said today.
While conditional fee agreements (also known as ‘no win, no fee’ arrangements or CFAs) have provided an attractive alternative to legal aid for many litigants, these too have now become a victim of their own success.
Following the introduction on 1 April 2013 of the Legal Aid Sentencing & Punishment of Offenders Act 2012, the success fees associated with CFAs ceased to be recoverable from defendants and, instead, became payable by the successful claimant, usually by way of a deduction from the compensation recovered. For many claimants, this made instructing a solicitor more expensive and, in turn, a more difficult decision to make.
Considerations to have in mind
While funding a professional negligence claim is often one of the first considerations to have in mind when deciding whether or not to instruct a solicitor, it should not be the only one. Below, and starting with affordability, we examine those factors that we consider should loom large as part of your decision-making process.
Instructing solicitors is rarely cheap and there is usually a positive correlation between the fees charged and the experience on offer. However, there are a number of different funding options available for professional negligence claims, as we explain in some detail in the Fund a claim section of our website. It is also worthwhile noting that by instructing a solicitor, you may well be able to gain access to funding opportunities that would not otherwise be available to you as a litigant in person.
However, the issue of affordability is not limited to considering whether you have or can raise the funding needed to instruct a solicitor. A related consideration is whether you can afford not to. In the absence of an experienced solicitor, there is the potential for any claim to take much longer to resolve and, in turn, any compensation to take much longer to recover. There is also a greater risk of incurring a costs liability in favour of the defendant party, as a result of procedural irregularity. Finally, and at worst, there is the heightened risk of a valid claim being struck out by the court.
Therefore, affordability is an issue that requires more than a one-dimensional assessment and is certainly something that you should really consider in the round.
2. The nature of the dispute
Sometimes it can be unclear whether, properly categorised, the conduct of the adviser in question amounts to professional negligence, an issue of inadequate professional service, or a matter of professional misconduct. In some instances, the conduct might lie across each of these categories, but that is certainly not so in every case.
Generally, it is only the former (professional negligence) that is likely to sustain a claim for significant financial compensation and to justify the instruction of a solicitor. Complaints in relation to inadequate service are commonly dealt with by ombudsmen, while matters of misconduct are the preserve of regulators, such as the Solicitor Regulation Authority (SRA) or the Institute of Chartered Accountants for England & Wales (ICAEW).
Professional negligence claims are invariably complex and, as a result, can be costly to pursue. If the value of your claim is relatively modest, it is quite possible that the costs of instructing a solicitor to pursue it will outweigh any compensation you recover. If the value of your claim is less than £10,000, you are likely to have much less chance of recovering your costs, even if you are successful. Moreover, even if the value of your claim exceeds £10,000, a successful claimant will rarely recover all of their costs.
If your claim is of modest value, you may decide to retain a solicitor to undertake a limited number of tasks, while undertaking others yourself. Alternatively, you may decide that it is not proportionate to instruct a solicitor at all.
As part of your decision-making process you may also wish to consider when it might be best to instruct a solicitor. In some cases, and in an effort to save costs, you may decide to undertake the initial stages of a professional negligence claim yourself, with a view to instructing a solicitor at a later date, should you consider it necessary.
That is certainly an option open to you but, before settling on it, you may wish to consider some of the risks that you may be running in doing so. These include the risk of inadvertently prejudicing your claim in the early stages and/or delaying its resolution, both of which could make your claim more expensive to resolve in the long run.
5. Equality of arms
Most professionals take out a professional indemnity insurance policy to protect themselves against any professional negligence claims made against them. This has a number of advantages for claimants, which we explain elsewhere in our guide: Professional Indemnity Insurance – A Claimant’s Guide.
When a professional negligence claim is made, it is likely to be referred to an insurer and then to an internal claims adjuster. The adjuster will usually be a solicitor, with specialist training and experience in dealing with professional negligence claims. In accordance with the terms of the policy, the adjuster will usually determine, often behind the scenes, how your claim is dealt with. If necessary, the adjuster will also appoint an external solicitor, sometimes covertly, from its panel. Again, the appointed solicitor will be a specialist, often within a large commercial law firm, who deals exclusively with professional negligence claims. Their fees will be met by the insurer.
While the fact that the professional concerned will benefit from the advice of a team of specialist solicitors does not mean that you need to retain your own specialist solicitor, it is as well to understand what you will be up against and that there will be a serious inequality of arms should you decide not to do so.
6. Personal experience
It is rare that claimants have any prior experience of pursuing a professional negligence claim. While on one level this is a positive state of affairs, if this is also true in your case, it does present you with a significant disadvantage and may well be a factor to take into account as part of your decision-making.
Equally, however, if you benefit from technical expertise in the area giving rise to the claim or some experience in other areas of litigation, you might feel more confident in dealing with your claim personally. However, in our experience, it is rare to encounter two claims that are the same and we would caution you against assuming that one experience will serve as a reliable precedent for the other.
Professional negligence claims are notorious for their complexity. This can arise from the underlying events and evidence to which they relate, the legal principles which must be applied and/or the procedure that must be followed in pursuit of them. Even where it is clear that the professional has made a mistake, complications can arise in establishing (both as a matter of fact and law) that the professional caused loss and the nature and amount of that loss. Again, and by itself, this does not necessitate the instruction of a solicitor, but it should certainly be an important consideration.
8. Time commitment
Given their complexity, professional negligence claims generally require a significant time commitment, even for those solicitors who are experienced in dealing with them. For anyone who is not, the commitment will be all the greater. If you are retired and/or have no other commitments, this may not be a significant issue for you. However, if you have other work or family commitments, you may simply not have the time, nor the inclination, to dedicate to pursuing any claim yourself.
It is important to note that even if you do instruct a solicitor, there is still likely to be some time commitment required from you, albeit significantly less that if you dealt with any claim personally.
9. Emotional stress
Whether you are pursuing a professional negligence claim in a personal capacity or on behalf of a business, you should not under-estimate the emotional effect it can have on you. By its very nature, the claims process is an adversarial one and tempers can be tested. Having a solicitor who is able to shield you from and defuse confrontational exchanges is often an advantage that is not foreseen at the outset by those who have not previously been involved in litigation.
Our final factor for consideration is the strategic implications for your professional negligence claim. In deciding between instructing a solicitor and acting in person, an early consideration should be the effect that this will have on the defendant adviser (and its insurer). In the absence of legal representation, there is likely to be greater doubt as to your commitment and resolve, as well as your credibility, which may encourage it to defend, rather than settle, your claim. The fact that the adviser’s (and in turn its insurer’s) potential liability for costs will be much reduced if you have not retained a solicitor, may also encourage it to reject or prolong your claim.
While it remains fair to say that litigants in person enjoy some procedural allowances over those that are legally represented, a string of recent court decisions have confirmed that such leniency is by no means limitless. A prime example of the approach taken can be found in the relatively recent case of Reynard v Fox, where a professional negligence claim by a litigant in person against an insolvency practitioner was struck out on the grounds of procedural irregularity. The circumstances of the case are more fully reported in The Law Society Gazette.
It would also be a mistake to assume that as a litigant in person, the court may (or is likely to) be more sympathetic and/or more generous when determining your claim. This is most unlikely to be the case.
Unfortunately, there are few alternative options to instructing a solicitor or acting alone. However, you might wish to consider contacting a Citizens Advice Bureau for advice and assistance or, possibly, a local law centre that undertakes pro-bono work.
Professional negligence claims are inherently complicated and while this does not present an insurmountable hurdle to acting in person, you should carefully consider a range of factors before resolving to do so.
If you do decide to instruct a solicitor, you will no doubt wish to retain the best that you can. To assist you in identifying who this might be, we have produced a related guide: How to find the Best Professional Negligence Solicitors. In this guide we set out seven key features that you should look out for as part of any search.
Further legal assistance
As professional negligence solicitors we act for clients nationwide, to resolve claims against a wide range of professionals.
If you would like to arrange an initial consultation with us, free of charge or commitment, please do not hesitate to contact us on 0800 195 4983 or by email at firstname.lastname@example.org.
At PNC Legal there is much more than just the fact that we specialise exclusively in resolving claims for professional negligence that sets us apart from most other solicitors.