Solicitor/negligence claim:

[callum1999]

Any help would be appreciated.

 

I am trying to establish whether my solicitor has acted negligent by not following the pre-action protocol in respect of a Disrepair claim which has now been settled, after 6 years of my local council denying liability under the OLA 1957.

 

I had an accident during the period where liability was being disputed but my solicitor is claiming that he did not have the funds to pursue a PI claim but never advised me on this, and on checking the pre action protocol under Disrepair claim there is reference that would suggest that in any event, a claim for PI arising from a Disrepair claim could and probably should have been made by a qualified legal representative as the Disrepair procedure makes reference to a PI claim if an injury has occurred because of the disrepair, in this case a out-house flooded everytime it rained.

[AndyOrch]

Hi callum1999 and Welcome to CAG

 

I have moved your thread to the appropriate forum.

 

Regards

 

Andy

[callum1999]

Hi Andy, could you please indicate on what forum you have move the thread too, thanks in advance Callum

[AndyOrch]

The one you are in now General legal Issues:-)

[Ganymede]

Hi Callum.

 

What did you actually instruct your solicitor to do? Is the retainer for a housing disrepair claim only?

 

What were the extent of your injuries??

[callum1999]

Hi Ganymede, cheers for your reply.

 

Before the disrepair claim was compromised, I instructed the solicitor to reserve any rights that I had to pursue the PI injury.

I suffered cracked ribs, damage to my right leg, and the stress of it all was quite severe, Unfortunately I suffered a heart attack that my doctor has stated could have been a contributing factor, because of the stress.

Edited March 30, 2016 by callum1999

[Ganymede]

Ok, but that's not the same as instructing the solicitor to actually carry out the PI claim though.

 

You knew you had a claim, so why not pursue it?

[callum1999]

Hi, the solicitor was aware of the PI claim, and instructions to recover PI were made during representation, i had to compromise the Disrepair claim because that was the condition set by the Council to remove the risk and replace the out-house with a new one.

 

Part of me agreeing to the compromise was that i reserved the right to pursue a PI, and those instructions were giving to the solicitor who has in letters and emails confirmed that he was instructed to reserve that right. He did not relay that information and he allowed me the client to sign the compromise agreement which in effect was for full and final settlement/s which was worded that any right to pursue a claim had now been lost because the solicitor did not reserve the right and because he advised me to sign agreement, mindful that i was losing any legal right to pursue a PI claim.

 

I would be obliged if you could advice that because it was a Disrepair claim, and the solicitor was aware of my previous injuries and potential claim for PI he had an obligation under the PRE-ACTION PROTOCOL to deal with the PI, which i would assume would include advising me to instruct another solicitor to carry out this work?

Edited March 31, 2016 by honeybee13
Paras.

[Ganymede]

It's hard to advise as we haven't seen this compromise agreement. If you signed it and waived the right to bring a PI claim, despite telling your solicitor to reserve your right to bring a PI claim, then you could have a claim.

 

No I don't think your solicitor had an obligation to deal with the PI claim unless you had a retainer with them to do so. The PI claim would need to be funded somehow.

 

Did this solicitors firm not deal with PI claims themselves? If not they probably should have told you to go and find a solicitor who did.

[callum1999]

Thanks Ganymede, my solicitor was in conversation with the Council in respect of the PI, the Council were denying that the accident had in fact occurred, asked for medical evidence which i provided and had to pay £50 for my GP records which not only documented the injuries sustained, but proof from hospital that i was referred there because of my injuries.

Whilst all this was being disputed the limitation period had expired for the PI, but my solicitor informed the Council that this would be extended.

 

What i cannot understand is that as i was being funded by legal aid for the disrepair aspect of the claim, why the solicitor did not take the appropriate court action to remove the serious risk that the out-house was obviously posing which would include the risk of an electrical fire as the white goods were and could only be placed in the out-house because of the plumbing and limited space elsewhere in the property.

It could be the case that the solicitor was negligent in allowing the out-house to remain a serious risk by not taking the matter to court which i invited him to do, on a number of occasions, and he prior warned the council that he had been instructed by me to seek court orders which would have ordered the council to remove that risk.

[callum1999]

Hi,

 

I am currently considering issuing against my former solicitor on the grounds of professional negligence, i have followed the pre-action protocol under CPR and the solicitors insurance company are denying liability.

 

I think i have a strong case, but i am considering mediation and would be obliged if anyone could give any indications as to the pro's and con's taking this route as a means of trying to settle this, thanks in advance.

[BankFodder]

If you follow the link under the word – mediation – you'll get a certain point of view which I think is valid.

 

On the other hand, other people might have other ideas here or you can browse the Internet.

 

It would help if you gave us some details of the dispute

[callum1999]

Thanks for that BankFodder, appreciated.

 

Back in 2110 i had a serious accident as a result of my local Council not replacing or making safe an out-house which was in dire disrepair.

 

The Council denied liability stating that i was responsible, i contacting Shelter for help, their legal adviser considered all the relevant evidence from both sides and established that the Council were liable.

 

So they asked a firm of solicitors to represent me, and legal aid was granted.

 

During the two years in which it finally took for the Council to replace the lean-to, and this was only after i had to compromise an agreement as this was going to be the only way the Council were going to remove the risk, in my opinion the solicitor acted negligently on a number of issues which ultimately benefited the Council rather than me.

 

He ignored my instructions for the two year period whilst representing me to seek a court order for the council to replace the out-house on the grounds of health and safety and to further injuries, made no attempt as a solicitor to advice and initiate proceedings which would have forced the Council to remove the risk, and basically was allowing what Shelter had asked them to do, which was to get the matter sorted, to be completely ignored.

 

Whilst i am by no means qualified as to suggest, it just seems odd that the solicitor allowed this matter to be dragged out, without reasonable grounds, but also failed to do what i would have thought was the most obvious, and allowed the Court to conclude what Shelter had established and that was the Council were liable.

[BazzaS]

Hi,

 

I am currently considering issuing against my former solicitor on the grounds of professional negligence, i have followed the pre-action protocol under CPR and the solicitors insurance company are denying liability.

 

I think i have a strong case, but i am considering mediation and would be obliged if anyone could give any indications as to the pro's and con's taking this route as a means of trying to settle this, thanks in advance.

 

Disadvantages : few!

It is however pointless if the issues you agree and disagree on already known and clear, and if both sides positions are entrenched,

 

Advantages;

May be quicker and cheaper than litigation

Confidential (unlike a case heard in open court)

Non-binding : either side can withdraw at any time.

Clarifies area of agreement / disagreement, so even if it does go to court, the court only has to look at the areas of disagreement.

 

Mediation also shows that you had considered alternatives to litigation, provided both parties went to mediation with good intent.

 

Thanks for that BankFodder, appreciated.

 

Back in 2110 i had a serious accident as a result of my local Council not replacing or making safe an out-house which was in dire disrepair.

 

The Council denied liability stating that i was responsible, i contacting Shelter for help, their legal adviser considered all the relevant evidence from both sides and established that the Council were liable.

 

So they asked a firm of solicitors to represent me, and legal aid was granted.

 

During the two years in which it finally took for the Council to replace the lean-to, and this was only after i had to compromise an agreement as this was going to be the only way the Council were going to remove the risk, in my opinion the solicitor acted negligently on a number of issues which ultimately benefited the Council rather than me.

 

He ignored my instructions for the two year period whilst representing me to seek a court order for the council to replace the out-house on the grounds of health and safety and to further injuries, made no attempt as a solicitor to advice and initiate proceedings which would have forced the Council to remove the risk, and basically was allowing what Shelter had asked them to do, which was to get the matter sorted, to be completely ignored.

 

Whilst i am by no means qualified as to suggest, it just seems odd that the solicitor allowed this matter to be dragged out, without reasonable grounds, but also failed to do what i would have thought was the most obvious, and allowed the Court to conclude what Shelter had established and that was the Council were liable.

 

Have you taken this to the Legal Ombudsman?

[callum1999]

Have you taken this to the Legal Ombudsman?

 

Hi BazzaS, no i have not considered the Legal Ombudsman...

 

Disadvantages : few!

It is however pointless if the issues you agree and disagree on already known and clear, and if both sides positions are entrenched,

 

Advantages;

May be quicker and cheaper than litigation

Confidential (unlike a case heard in open court)

Non-binding : either side can withdraw at any time.

Clarifies area of agreement / disagreement, so even if it does go to court, the court only has to look at the areas of disagreement.

 

Mediation also shows that you had considered alternatives to litigation, provided both parties went to mediation with good intent.

 

So if i invite the otherside to consider mediation but they decline, can this be disclosed during any court action, thanks.

[AndyOrch]

Threads merged...please keep to one thread per issue.

 

Regards

 

Andy

[BazzaS]

So if i invite the otherside to consider mediation but they decline, can this be disclosed during any court action, thanks.

 

The action that might attract sanction is failure to reasonably consider mediation, not "you must go to mediation".

The court will know if mediation has been requested.

[callum1999]

The action that might attract sanction is failure to reasonably consider mediation, not "you must go to mediation".

The court will know if mediation has been requested.

 

Thank you for that, so do the otherside have a set period of time to accept, or on the other hand reject mediation?

[Ganymede]

Hi,

 

I am currently considering issuing against my former solicitor on the grounds of professional negligence, i have followed the pre-action protocol under CPR and the solicitors insurance company are denying liability.

 

I think i have a strong case, but i am considering mediation and would be obliged if anyone could give any indications as to the pro's and con's taking this route as a means of trying to settle this, thanks in advance.

 

Wait, you never told us before that the solicitors professional indemnity insurance had denied liability.

 

On what basis exactly?

[callum1999]

Wait, you never told us before that the solicitors professional indemnity insurance had denied liability.

 

On what basis exactly?

 

A letter from the solicitors firm, indicates that their insurance indemnity have denied liability on the grounds that the solicitor was not negligent, in reserving any legal right that i had, to pursue a PI claim, as oppossed to the Disrepair claim, this despite my instruction to reserve that right to pursue the PI claim.

 

Would it be deemed negligent if a solicitor failed to make a court application to request an order for a disrepaired building to be either repaired or replaced, this on the knowledgeable and previous advice giving by Shelter and their legal advisors. thanks

 

Would it be deemed negligent if a solicitor failed to make a court application to request an order for a disrepaired building to be either repaired or replaced, this on the knowledgeable and previous advice giving by Shelter and their legal advisors. thanks

 

Is their a duty of care on the legal representative to remove any risk to health and safety to the client by seeking a court order against those breaching any laws that would protect a tenant from a landlord continually breaching say for instance, OLA 1957?, ANY HELP WOULD BE APPRECIATED.

[Ganymede]

Is their a duty of care on the legal representative to remove any risk to health and safety to the client by seeking a court order against those breaching any laws that would protect a tenant from a landlord continually breaching say for instance, OLA 1957?, ANY HELP WOULD BE APPRECIATED.

 

Depends on the retainer and what you instructed them to do originally.

[callum1999]

The retainer was as I understand, for a Disrepair case,evidently, I gave instructions on at least three separate occasions to initiate proceedings to remove the risk, but to no avail.

[steampowered]

I suppose solicitors are a business and do not work for free. If you are saying that the solicitor was negligent because they didn't issue proceedings, it is important to be able to prove that (1) you instructed them to issue proceedings and (2) they accepted the instruction. Can you prove that?

[callum1999]

I will have the emails that I wanted proceedings issued and the emails from my solicitor to the council confirming this. The other point is that at no time did my solicitor seek a barristers opinion, again there is clear reference to them doing this in emails. Thanks

[steampowered]

Well, if your solicitor said that he would do something and he did not, there may be a case for negligence. The important thing with this kind of case is the detail. It needs to be clear from the email exactly what the solicitor said he would do.