Have you been let down by a professional? Did your lawyer omit to advise you of planning, right of way or environmental issues affecting your property when you bought it? Did they fail to protect your interests in a property venture adequately? Did they miss a limitation deadline when acting for you on a dispute? Or did they prepare a Will or a Trust which did not have the desired tax consequences?
Alternatively did you have a surveyor who failed to point out serious structural problems with a property you were buying? Did your architect produce a defective design for your dream home? Or did you engage a planning consultant who mis-advised you on the re-use of farm buildings?
These are stories we hear all too often. To start with, it is important to engage a specialist professional negligence lawyer. Perhaps steps can be taken to put things right. For example, if planning permission / ‘listed building’ consent or an environmental licence were overlooked and enforcement action is being threatened, your lawyer can seek to fend this off whilst working with another professional to negotiate with the relevant body. It is often good to take the wind out of the enforcing body’s sails by agreeing what they would be happy with ‘on the ground’ so that even if a technical breach remains, the need for a prosecution or other enforcement action becomes less convincing. Reasonable steps must be taken to mitigate your loss, and the cost should be recoverable from the negligent professional.
In tandem with this, your professional negligence lawyer will formulate your claim for you. A protocol process has to be followed to endeavour to resolve the claim outside of the court process. This involves preparation of a lengthy Letter of Claim covering all the legal ingredients of your case and attaching copies of the key documents, and allowing your opponent three months to produce a detailed Letter of Reply. Often this leads to further exchanges of information or expert evidence and then to negotiation or mediation, but not always. Even if you have a good case, the insurers of your professional adviser will not roll over the moment you intimate a claim and they will make you jump through all the hoops to prove your claim to their satisfaction.
An increasingly important factor to bear in mind is that the professional’s insurers may now be more inclined to ‘tough it out,’ believing that you will be forced to give up because of the cost even if you have a good case and even if your lawyer has taken some risk on their fees. If court proceedings are necessary, the costs and risks are indeed high; the court fee for claims worth £200,000 or more in February 2016 is £10,000 and you will probably also have a barrister’s and one or more expert’s fees to pay, as well as any fees your lawyer is charging as you proceed. If you lose, you would almost certainly have to pay a sizeable proportion of your opponent’s costs too.
But there is an effective way forward for good cases against financially secure opponents (and professionals are almost always insured). It involves planning your strategy from the outset. A project mentality is required where the lawyer, a third party funder and you as client all contribute towards the costs of a claim and the associated expenses with the backing of a specialist insurer, and share the settlement sum / damages. If the case is lost, you would receive back nearly all your contribution towards fees, and your liability for your opponent’s costs would covered in full.
We describe this as “virtually risk-free litigation”. It enables you to take your claim as far as necessary to get the right result, in exchange for sharing the winnings with your backers. Otherwise, even if your lawyer is acting on a full ‘no win no fee’ conditional fee agreement such that their fees will not be payable if you lose and you have insurance for your opponent’s costs, you will be forced to take whatever settlement can be achieved pre-issue of court proceedings - unless you have the financial wherewithal to meet very significant expenses for court fees, your barrister’s fees and your experts’ fees so you can force the professional’s insurers to engage with you properly.
We believe that access to justice is a right for all, not just those who can afford it. By partnering with a third party funder it means you can pursue a damages claim at a fraction of the usual cost.