Solicitor/negligence claim:

[Ganymede]

What damage did your solicitor not apply for the injunction cause you? When was your accident in relation to this again sorry?

 

The Pre-Action Protocol for Housing Disrepair Cases can include a personal injury claim:

 

"3.5 Housing disrepair claims may contain a personal injury element. If the personal injury claim requires expert evidence other than a General Practitioner’s letter, the Personal Injury Protocol should be followed for that element of the disrepair claim. If the personal injury claim is of a minor nature and will only be evidenced by a General Practitioner’s letter, it is not necessary to follow the Personal Injury Protocol."

 

The above would not need you to re-sign for a CFA to fund I don't think, however your injuries sound more serious so following the Pre-Action Protocol for Low Value Personal Injury Claims would be more appropriate.

[callum1999]

Thanks for that Ganymede, the disrepair and the fact that it remained dis-repaired for a period of two years because no injunction was applied for to remove the risk caused stress anxiety, the lean to to be in a state of disrepair that it was deemed a fire risk, all of this going on when i was recovering from a serious heart condition and suffering from PTSD which the solicitor was aware of.

 

Such was the disrepair to the structure and the state of the lean-to, this allowed rats and mice to nest in the property because the wood was that rotten.

 

Everytime it rained i had to physically move the washing machine and dryer from the lean-to which again was not what someone with a serious heart condition should be doing.

 

The original accident occured in 2010, on instructions as to compromise the disrepair claim, the solicitor did not inform the landlords, Southampton City Council that aany agreement was based on me reserving any rights that i had to pursue a PI claim.

Edited April 21, 2016 by honeybee13
Paras.

[callum1999]

Would a solicitor be expected or obliged to treat a client who would be deemed as being in the category under The Mental Capacity Act different to a client who would not be in that criteria.

 

In a nutshell would a legal adviser who was aware of the client and the Act, have more of an obligation, to a client of sound mind??

 

Any advise would be appreciated.

[Ganymede]

Would a solicitor be expected or obliged to treat a client who would be deemed as being in the category under The Mental Capacity Act different to a client who would not be in that criteria.

 

In a nutshell would a legal adviser who was aware of the client and the Act, have more of an obligation, to a client of sound mind??

 

Any advise would be appreciated.

 

It depends, would said person have capacity?

 

If not then then said person couldn't give instructions to the solicitor and steps would have to be taken to appoint someone else to act on their behalf.

[callum1999]

It depends, would said person have capacity?

 

If not then then said person couldn't give instructions to the solicitor and steps would have to be taken to appoint someone else to act on their behalf.

 

So if a compromise agreement was put forward, and the client would have protection from the Mental Capacity Act, that Act states that any agreement and giving the Act and recommendation would have to be agreed by a Court rather than opposing legal representatives?

[BazzaS]

So if a compromise agreement was put forward, and the client would have protection from the Mental Capacity Act, that Act states that any agreement and giving the Act and recommendation would have to be agreed by a Court rather than opposing legal representatives?

 

Protection "from" the MCA such that the MCA doesn't apply, or

Protection "under" the MCA?

 

Hard to claim the MCA applies without medical evidence if your solicitor felt you were competent.

[callum1999]

Thanks for that, I was diagnosed with PTSD as a direct result of nearly dying from a massive heart attack, which resulted in a clot on my heart being removed, this process and the fact that I was dying was not helped as this emergency procedure was carried out with me awake.

I suffered from severe mental problems which included severe anxiety, depression and other symptoms which were linked to the near death experience.

My solicitor was verbally made aware of my PTSD, but in all honesty and giving the way that he considered and dealt with the case, he was only interested in delaying matters which could and should of been considered earlier.

A compromise agreement was signed by me.

I did not want to sign the compromise agreement.

If I can establish that when signing that agreement I would in any event be protected under MCA, that act, as I understand would make any compromise agreement be subject to a court allowing the agreement, if mentally and within the guidelines of MCA, I was incapable of making that decision as to agree this compromise?

If my solicitor has been negligect in allowing the compromise to be agreed despite my mental illness I would be grateful for some advice.

[steampowered]

The legal test for capacity to enter into a contract essentially comes down to whether you understand what you are doing. If you understood what the settlement agreement was, then you will be bound by it.

 

If the settlement agreement is found to be void for lack of capacity, then you should not have received any money paid in exchange for the settlement. That money would need to be repaid unless/until a new settlement is reached or damages award made by the court.

 

I'm not sure why a solicitor would want to delay things. Solicitors are normally more interested in progressing matters so that they complete the work and can get paid.

 

Of course a solicitor should take into account someone's mental state of mind if they are made aware of any issues on that front. You can complain to the solicitor and then to the Legal Ombudsman if you feel that the solicitor did not act properly.

 

It is still not clear to me personally what you think the solicitor actually did wrong here - fundamentally, a solicitor cannot do anything unless he has instructions from his client. Solicitors can't go off applying for injunctions unless specifically instructed to do so by their client (the solicitor will also need to agree to accept the instructions and you will need to pay. Solicitors are not generally required to accept work).

[BazzaS]

Thanks for that, I was diagnosed with PTSD as a direct result of nearly dying from a massive heart attack, which resulted in a clot on my heart being removed, this process and the fact that I was dying was not helped as this emergency procedure was carried out with me awake.

I suffered from severe mental problems which included severe anxiety, depression and other symptoms which were linked to the near death experience.

My solicitor was verbally made aware of my PTSD, but in all honesty and giving the way that he considered and dealt with the case, he was only interested in delaying matters which could and should of been considered earlier.

A compromise agreement was signed by me.

I did not want to sign the compromise agreement.

If I can establish that when signing that agreement I would in any event be protected under MCA, that act, as I understand would make any compromise agreement be subject to a court allowing the agreement, if mentally and within the guidelines of MCA, I was incapable of making that decision as to agree this compromise?

If my solicitor has been negligect in allowing the compromise to be agreed despite my mental illness I would be grateful for some advice.

 

http://www.doughtystreet.co.uk/documents/uploaded-documents/Dunhill_Article_Melina_Padron1.pdf

Should cover it .......

[honeybee13]

Bazza, that link doesn't work for me,

 

HB

[BazzaS]

Bazza, that link doesn't work for me,

 

HB

 

As originally written, the link is valid. CAG's site has added a space between the "a" and "d" of Padron.

2 potential solutions:

1) manually copy and paste the URL and manually delete the space

2) use "reply with quote" and the URL will be shown without the added space, as it was originally typed. Copy it from there......

[honeybee13]

Thank you for that Bazza, it works if I take out the space.

 

HB

[callum1999]

The legal test for capacity to enter into a contract essentially comes down to whether you understand what you are doing. If you understood what the settlement agreement was, then you will be bound by it.

 

If the settlement agreement is found to be void for lack of capacity, then you should not have received any money paid in exchange for the settlement. That money would need to be repaid unless/until a new settlement is reached or damages award made by the court.

 

I'm not sure why a solicitor would want to delay things. Solicitors are normally more interested in progressing matters so that they complete the work and can get paid.

 

Of course a solicitor should take into account someone's mental state of mind if they are made aware of any issues on that front. You can complain to the solicitor and then to the Legal Ombudsman if you feel that the solicitor did not act properly.

 

It is still not clear to me personally what you think the solicitor actually did wrong here - fundamentally, a solicitor cannot do anything unless he has instructions from his client. Solicitors can't go off applying for injunctions unless specifically instructed to do so by their client (the solicitor will also need to agree to accept the instructions and you will need to pay. Solicitors are not generally required to accept work).

 

Thank you for that Steampowered.

 

If i want the Court to consider the compromise agreement being null and void is a standard claim form to be issued?

 

The compromise agreement and the implications were not explained to me, that is what another solicitor and barrister have stated.

 

Further i feel the test as far as for the test of lack of capacity when the agreement was offered, at that time my mental state was at its lowest and i was diagnosed as suffering from severe PTSD and receiving treatment and two lots of counselling for my condition such was my mental health, at that time.

 

One other point, that may be relevant is that i did not want to sign the agreement, i did inform my solicitor that i was only agreeing not as to be compensated, but to remove what was a serious risk, in other words the Council were not going to remove the risk unless a compromise agreement had been agreed. If i did not sign, the risk would not have been removed.

[BazzaS]

 

 

One other point, that may be relevant is that i did not want to sign the agreement, i did inform my solicitor that i was only agreeing not as to be compensated, but to remove what was a serious risk, in other words the Council were not going to remove the risk unless a compromise agreement had been agreed. If i did not sign, the risk would not have been removed.

 

That sounds like you are saying that you had a good reason to sign understanding the benefit. I think you can either claim duress or lack of competence : you'll struggle to argue both at the same time, but could argue them as alternatives.

[callum1999]

That sounds like you are saying that you had a good reason to sign understanding the benefit. I think you can either claim duress or lack of competence : you'll struggle to argue both at the same time, but could argue them as alternatives.

 

Thanks for that BazzaS

 

So by pleading that i was signing on the the fact that unless i signed the risk would not be removed, this could be an excuse as to suggest i was understanding the benefit, i can see where you are coming from. thanks

[steampowered]

Personally I am not 100% clear on what you are trying to achieve by saying the settlement agreement was invalid. Presumably the disrepair has now been fixed so the only purpose I can see would be trying to get the council to pay more money than they previously settled for?

 

If i want the Court to consider the compromise agreement being null and void is a standard claim formicon to be issued?

I think you might find a Part 8 claim form is required to seek a declaration, rather than a more standard Part 7 claim form. I don't believe this would be treated as a small claim and hence you would be liable for the council's legal costs (which could be thousands of pounds) if you are unsuccessful. You should seek qualified legal advice before pursuing that course.

 

There may be a possibility of simply issuing a Part 7 claim form for the additional compensation you feel you are owed, rather than going down the Part 8 route, in order to keep any possible claim within the small claims track to reduce the risk of being stung for the council's legal costs if you lose, but I can't assure you that would work and so wouldn't suggest doing that without getting proper legal advice.

 

I do want to help you if possible, but it is very very difficult to unwind a settlement agreement.

 

The compromise agreement and the implications were not explained to me, that is what another solicitor and barrister have stated.

 

Further i feel the test as far as for the test of lack of capacity when the agreement was offered, at that time my mental state was at its lowest and i was diagnosed as suffering from severe PTSD and receiving treatment and two lots of counselling for my condition such was my mental health, at that time.

Did you understand what you were signing though? With regards to capacity, that is really the key point if you are trying to argue that the settlement agreement was invalid. My understanding is that PTSD/depression does not render you legally incapable of entering into contracts if you understand what you are doing (even if you would not have taken the same decision in a better mental state).

 

If the solicitor did not explain what the compromise agreement is, then you may be able to complain to the solicitor and eventually to the Legal Ombudsman. I imagine the solicitor will say that you could have asked them what the agreement was if you were unsure.

[callum1999]

Personally I am not 100% clear on what you are trying to achieve by saying the settlement agreement was invalid. Presumably the disrepair has now been fixed so the only purpose I can see would be trying to get the council to pay more money than they previously settled for?

 

 

I think you might find a Part 8 claim form is required to seek a declaration, rather than a more standard Part 7 claim form. I don't believe this would be treated as a small claim and hence you would be liable for the council's legal costs (which could be thousands of pounds) if you are unsuccessful. You should seek qualified legal advice before pursuing that course.

 

There may be a possibility of simply issuing a Part 7 claim form for the additional compensation you feel you are owed, rather than going down the Part 8 route, in order to keep any possible claim within the small claims track to reduce the risk of being stung for the council's legal costs if you lose, but I can't assure you that would work and so wouldn't suggest doing that without getting proper legal advice.

 

I do want to help you if possible, but it is very very difficult to unwind a settlement agreement.

 

 

Did you understand what you were signing though? With regards to capacity, that is really the key point if you are trying to argue that the settlement agreement was invalid. My understanding is that PTSD/depression does not render you legally incapable of entering into contracts if you understand what you are doing (even if you would not have taken the same decision in a better mental state).

 

If the solicitor did not explain what the compromise agreement is, then you may be able to complain to the solicitor and eventually to the Legal Ombudsman. I imagine the solicitor will say that you could have asked them what the agreement was if you were unsure.

 

Again thanks Steampowered, what i am trying to build is a case which shows the solicitor acted negligently, on a number of issues, which would include the compromise agreement, which i feel that i had no option but to agree with, as this was the option that the council would only consider and thereafter remove the risk, in other-words unless i agreed to compensate on the disrepair case, they were not going to remove the risk, so they, the Council were technically using the obligation to repair as a bargaining or act of brinkmanship to settle a claim.

 

I would have assumed that it would have been for the solicitor, rather than a client to explain what the agreement meant, on taking legal advice, this is what they are saying, it was not explained, the implications and in particular, the loss of any further claims for PI was not explained, this despite me instructing the solicitor to reserve that right.

 

Any advice would be greatly appreciated.

 

I would be obliged if someone could advice me on how detailed the particular of claims should read.

 

I have in the particulars of claim which have been received from the High Court giving the Claimants reasons for what i believe was professional negligence, and giving t least three examples of what i am alleging, in the particulars of claim.

 

The solicitors for the defendants are claiming the particular are incomplete and that i have to put a value on the claim, this despite and confirming on the N1 form the amount or value of the claim is unspecified.

[BankFodder]

We would need to see them to understand what you are saying - but it would be correct that you need to specify a value - or at least a top value.

 

Damages in the discretion of the court not exceeding £XXXX

[callum1999]

On the claim form i have put a figure of more than 25k, but unspecified, i would assume that it is to early in pleadings to put a detailed figure because the solicitors clients have still not giving any defence or reason to a couple of significant points, which if established or disproved would make the value of claim at this stage different.

[martin2006]

Standard type of response which you would flesh out in your witness statement although there should have been a monetary element to your N1.

 

How did you issue the claim, via mcol, ccmcc?

[honeybee13]

Is your question related to this thread, Callum?

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?462017-Solicitor-negligence-claim-%281-Viewing%29-nbsp

 

HB

[callum1999]

Standard type of response which you would flesh out in your witness statement although there should have been a monetary element to your N1.

 

How did you issue the claim, via mcol, ccmcc?

 

Do not understand what mcol, ccmcc means, could you please expand on the two meanings, thanks.

[AndyOrch]

Do not understand what mcol, ccmcc means, could you please expand on the two meanings, thanks.

 

The two ways to submit a claim MCOL Northampton (online) or CCMCC Salford (manual claim)

[callum1999]

The two ways to submit a claim MCOL Northampton (online) or CCMCC Salford (manual claim)

 

Thanks for that Andy, it was done manually, and sent direct to the High Court.

[martin2006]

Is your question related to this thread, Callum?

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?462017-Solicitor-negligence-claim-%281-Viewing%29-nbsp

 

HB

 

Hi Callum, is the above quoted all in relation to this?

if so it needs to be merged together so as not to cause confusion