Understanding professional negligence claims against Solicitors

When you instruct a Solicitor, you’re placing a great deal of trust in a professional who is meant to protect your interests, whether that’s buying a home, claiming compensation for personal injury, drafting a Will, or handling a business matter.

Most lawyers work to high standards and have years of experience and education behind them; however, like any profession, mistakes can happen. When those mistakes cause you financial loss, you may have a professional negligence claim.

We know that the process of making a professional negligence claim can feel daunting and complicated. It can also feel awkward asking a Solicitor to take legal action against a fellow legal professional. This guide explains how the claims process works, so you understand what’s involved and what your options are.

What is professional negligence?

Professional negligence is where a professional (such as a Solicitor) breaches their duty of care to a client, and that breach causes financial loss. In simple terms, they didn’t meet the standard of work you required and expected, and you ended up worse off because of it.

While this guide covers claims against Solicitors, you can also make a professional negligence claim against other professionals, such as Accountants and Barristers. 

What counts as professional negligence?

Not every mistake is negligence. However,  if the service falls below the standard reasonably expected, you may be able to make a claim.

The important element of any negligence claim is proving that the professional breached their duty of care. This means they did not adhere to professional standards or act in the client’s best interests.

The professional standard expected of Solicitors was highlighted in Duchess of Argyll v Beuselinck [1972], confirming that a Solicitor must exercise the skill and knowledge of a reasonably competent Solicitor, regardless of their level of experience.

This means a Solicitor cannot defend themselves by saying they were inexperienced or unfamiliar with a particular legal issue. They are held to the same objective standard as their competent peers.

Common types of professional negligence claims against solicitors

Property and conveyancing 

• Failing to spot title issues
• Not reporting restrictive covenants
• Problems with lease terms
• Negligent advice affecting a property’s ‘mortgageability’ or resale value

Litigation

• Missing limitation dates
• Claims struck out due to delays
• Failing to obtain expert evidence
• Settling too early or for too little

 Wills and Probate

• Errors in drafting a Will or LPA
• Failure to advise on Inheritance Tax
• Invalid execution of Wills

Commercial matters

• Poorly drafted contracts
• Not identifying commercial risks
• Inadequate due diligence

The four key elements you need to prove

For a professional negligence claim to be successful, you must be able to show:

• Duty of care: Solicitors owe their clients a clear duty of care. This part is normally straightforward.
• Breach of duty: you must show the Solicitor acted in a way no reasonably competent Solicitor should. This often requires expert evidence from another lawyer.
• Causation: you have to prove the breach caused your loss. This can be the most complex part; for example, showing what would have happened if proper advice had been given.
• Loss: your claim must have a financial value. Financial losses might include:
  • Losing out on compensation you should have received
  • Paying avoidable costs
  • Overpaying for a property or business
  • Missing out on a commercial opportunity

What are the stages of making a professional negligence claim?

The first step in making a professional negligence claim is to instruct a specialist lawyer. Our professional negligence solicitors have proven expertise in advising individuals and businesses on what to do after a professional fails in their duty of care.

Before starting court proceedings, both ‘sides’ must follow the Professional Negligence Pre‑Action Protocol. This aims to help resolve disputes early and save costs.

The key steps within the Pre-Action Protocol are:

1. Preliminary Notice
   • Your Solicitor notifies the Defendant(s) of the claim in writing. This is called a Preliminary Notice and includes details of your claim, an indication of the claim’s value and a request for details of the Defendant’s professional indemnity insurance
   • The Defendant must acknowledge receipt of the Preliminary Notice within 21 days.

2. Letter of Claim
   • If your Solicitor establishes that you have grounds for a claim, you will send a Letter of Claim to the Defendant, outlining full details of the claim, including evidence.
   • The Defendant has 21 days to acknowledge receipt of this.
   • The Defendant has 90 days to investigate the claim and respond to you and your Solicitor.
     • At this point, the Defendant should instruct a Solicitor (or their insurer) to manage the claim on their behalf.

3. Letter of Response
   • The Defendant has a further 90 days to respond to the claim via a Letter of Response and/or a Letter of Settlement.
   • A Letter of Response includes whether the Defendant admits or denies the claim, or parts of it, which should be supported by evidence and key documents.
   • A Letter of Settlement sets out the Defendant’s proposed Part 36 offer to settle the claim out of court

4. Exchange of Information

Both sides share documents and expert evidence where appropriate. Many cases settle at this stage without the need for court. However, if parties cannot come to an agreement, the claim will be litigated in court. Your Solicitor can advise you on the next steps should this happen.

Time limits for professional negligence claims

With this type of claim, it’s important to act quickly. Most professional negligence claims against Solicitors must be brought within:

• Six years from the date of the negligence, or
• Three years from the date you first knew or ought to have known about the negligence.

As with other types of negligence claims, such as personal injury or medical negligence, there are exceptions to the time limit. However, if you miss the deadline established by your Solicitor, your claim may be lost entirely. That’s why it’s crucial to seek legal advice as early as possible.

Funding options

All Solicitors are required to take out Professional Indemnity Insurance. This means that the Solicitor’s insurer usually pays if the claim succeeds. 

This can often give clients access to No Win, No Fee Agreements (Conditional Fee Agreements) and Legal Expenses Insurance to protect against the costs of potentially losing the case.

Your lawyer can advise you on how to fund a professional negligence claim.

Get in touch with our professional negligence lawyers

A professional negligence claim isn’t just about compensation. It’s about getting back to the position you should have been in if the job had been done properly. Making a claim also helps maintain high standards in the profession and reduces the likelihood of this happening to anyone else.

If you believe your Solicitor has let you down and caused you financial loss, we can help. With the right legal advice, professional negligence claims can be navigated calmly, with your best interests in mind. Call our team on 0117 325 2929 or fill out our online enquiry form.