Causation in Professional Negligence Claims. As a firm of solicitors specialising in professional negligence claims, we deal with many clients who have suffered as a result of solicitors being negligent when dealing with their legal affairs.
The most common solicitor negligence cases we see relate, in the main to either civil litigation or property cases. Most clients understand the concept of negligence and believe that this is all they have to prove to be successful in a claim for professional negligence.
The one crucial aspect that we advise on in every case is what is known as Causation.
Causation is the key element you need to be able to establish if you are to win compensation from a solicitor in a professional negligence case.
In simple terms, this is proving that the negligence which has occurred has caused the loss that is being claimed. As with many areas of the law, this is not always as straightforward as many people initially believe. By using a couple of examples, I can hopefully give some insight into the issues which arise.
Let’s look at a property case.
A client instructed their solicitor in the purchase of a property that consisted of a substantial detached house together with a substantial area of additional land which was suitable for development. The client’s intention following the purchase was to live in the house, but also then to build a substantial detached house on the adjacent land. The client’s solicitor did the legal work for the purchase and the transaction was completed. The client then obtained planning permission and started the building works on the new house to be built in the grounds. At that point, one of the neighbours threatened legal action as the proposed development was in breach of restrictive covenants which were attached to the land on which the building was taking place.
On taking legal advice it became clear that there were in fact these rights in favour of the neighbour which in reality meant that the site could not be developed as the client intended. It was clear that the solicitor who dealt with the purchase of the property had been negligent in failing to advise on the restrictive covenants in the title which restricted the ability to build on-site.
The client wanted to sue the solicitor for negligence. The client maintained that as a result of the negligence, he could not build a property for which he had planning permission. Had he been able to build the property, it would have been worth £500K, and after build costs, he would have made £250K in profit. At first glance, that seems to be a reasonable and sensible claim.
In this case, the solicitor admitted negligence but argued that they weren’t responsible for the loss of £250K as this was not caused by the negligence. They maintained that the property was still worth what the client paid for it and regardless of the negligence, the client wouldn’t have been able to build on the land and in reality, the client had suffered no loss.
The easiest way of determining what losses have flowed from the negligence is to look at what should have happened had the solicitor not been negligent.
The question to ask is what would have happened had the solicitor advised about the restrictive covenant?
There are two potential answers to that question:
- The first which is probably unlikely is that the client would have proceeded to buy the property regardless. If that is the option the client would have chosen, then there would be no loss.
- The other alternative is that the client would have simply decided not to proceed as the property did not allow him to develop it. This is the more likely scenario.
In this case, the loss that had been caused by the negligence is the fact the client bought a property he would not otherwise have bought. The losses were the cost involved in buying and selling it, but not the loss of profit as he would never have been able to build on the land. The reason he could not make the profit was due to the fact there was a restriction and not due to the negligent act of the solicitor.
Another example in the field of litigation relates to building disputes.
A solicitor was instructed by a client to sue a builder who had constructed an extension for the client. The builder was a limited company and the client was suing for breach of contract as a result of significant defects in the extension. The claim was based on the costs to remedy the defects in the extension which were estimated at £20,000.00. The solicitor wrote the necessary pre-action letter threatening a formal Court claim in the event the building company did not accept liability and agree to pay the remedial costs.
In response, the building company denied that the defects were substantial and maintained that they had offered to return and fix them, but the client had refused. Following receipt of that response, the solicitor simply sat on the case. About 6 months after the solicitor was instructed the building company went into liquidation which meant the client could not recover anything from the building company. The client claimed that the solicitor was negligent in not issuing proceedings before this happened. The complicating fact, in this case, was the fact the building company had gone into liquidation. The solicitor accepted that he had been negligent in not issuing the proceedings, but claimed they were not responsible for any losses. They maintained that the reason the client had suffered a loss was due to the fact that the company had gone into liquidation and not as a result of their negligence.
As with the above example, we need to look at what should have happened had the solicitor not been negligent. In this case, had the proceedings been issued, they would not have been concluded prior to the company going into liquidation, and as such the client would have had no prospect of making a recovery. Oddly, in this case, the client was actually better off as a result of the negligence as he had not incurred the additional legal costs he would have incurred had the solicitor not been negligent.
In summary with regard to solicitors’ negligence in litigation cases, we need to look at the loss caused by the negligence.
If, in this kind of action, it is plain that the legal action could have been brought, and that if it had been brought that it must have succeeded, of course, the answer is easy. The damaged client would recover the full amount of the damages lost by the failure to bring the action originally.
On the other hand, if it can be made clear that the client would never recover, then it is equally plain that the answer is that he can get nothing but nominal damages for the solicitor’s negligence. As can be seen from the previous examples, most solicitor negligence cases involve complex issues with regard to Causation and in my view is the one thing that anyone contemplating bringing a claim should consider at an early stage.
We at Cohen Cramer have an experienced team of lawyers who are able to advise and guide you through this complex area.
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- call: 0113 224 7808
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Director and Head of Dispute Resolution