Solicitor/negligence claim:

[steampowered]

Refer to CPR 16.3:

 

Statement of value to be included in the claim form

16.3

(1) This rule applies where the claimant is making a claim for money.

(2) The claimant must, in the claim form, state –

(a) the amount of money claimed;

(b) that the claimant expects to recover –

(i) not more than £10,000;

(ii) more than £10,000 but not more than £25,000; or

(iii) more than £25,000; or

© that the claimant cannot say how much is likely to be recovered.

 

I assume you are aware of the position regarding costs in the High Court (i.e. if you lose the case or lose interim application, you will be liable for the defendant's legal costs).

[callum1999]

Refer to CPR 16.3:

 

Statement of value to be included in the claim form

16.3

(1) This rule applies where the claimant is making a claim for money.

(2) The claimant must, in the claim form, state –

(a) the amount of money claimed;

(b) that the claimant expects to recover –

(i) not more than £10,000;

(ii) more than £10,000 but not more than £25,000; or

(iii) more than £25,000; or

© that the claimant cannot say how much is likely to be recovered.

 

I assume you are aware of the position regarding costs in the High Court (i.e. if you lose the case or lose interim application, you will be liable for the defendant's legal costs).

 

I have indicated on and under the value, n1 claim form "more than £25,000 ( unspecified ) which i would assume covers ( iii ) of CPR 16.3??

[steampowered]

Yes, it sounds like what you have done is compliant with CPR 16.3.

 

Aside from the technical requirements for your particulars of claim, it is reasonable for the defendant to ask how much you are seeking, even just for the purposes of deciding whether they want to raise a settlement offer. If you fail to give an indication that could be perceived as unreasonable behaviour when the court comes to look at the issue of what legal costs should be paid by the losing side.

 

I don't understand how anything the defendant might say would affect the value of your claim. The value of a negligence claim would typically be whatever you say you have lost financially as a result of the defendant's negligence.

 

I should also note that you were required to give an estimate as to the financial value of your claim (or a proper explanation of why it is not possible to provide an estimate) in the 'letter before claim' which you should have sent before initiating proceedings (see https://www.justice.gov.uk/courts/procedure-rules/civil/protocol/prot_neg#Letter). The estimate does not necessarily need to be exact and it can be subject to change if you do not yet know the full extent of your loss, but there should normally be an estimate given.

[callum1999]

Thanks Steampowered for that valued advice.

 

I assume that the difficult part, is establishing the heads of damage and thereafter putting an estimated value on them.

 

This is where i am not sure so if i list what i feel the solicitor should be held accountable for, maybe you could direct me as to what head of damages would cover in such event.

 

1. Failing to apply for a Court injunction to remove a serious risk to health and safety, on the advice of Shelter and thereafter by the client.( this meant that for the whole period whilst representing me and despite knowledge as to the dangers, they allowed that risk to be a risk, which i would assume is at complete odds with what they were being paid to do.

There is also communication from the solicitor that he was going to seek counsel's opinion as to making the application for injunction, but never followed up.

The solicitor was aware of a previous accident, so i would assume this would support any injunction application with the support of Shelter who adjudged the Council were breaching housing law.

 

2. Stated during representing that the firm did not do PI work period, which was not true, and did not advice to seek alternative legal help as to deal with PI aspects of the claim., the claim that they did not do PI work came after the compromise agreement was agreed, which technically gave any rights that i had to pursue a PI null and void because of the wording terms on agreement.

 

3. With no intentions and giving the advise about not being able to represent on PI, the ICO feel that they have breached DP, for (a) requesting my medical records (b) and by disclosing that information onto a third party, the Council's solicitor.

Some of that information and in particular a reference to my PTSD used and discredited for a reason why liability for any stress, anxiety and placing my whole condition on my marriage, was quite low, this caused problems between me and my wife as she was now blaming herself for my heart attack and any post heat attack mental issues that i had, because that information which no-one had the right to consider or adjudge was unlawfully used.

 

4. Failed to take instructions, yet promised to take instructions, to reserve my legal entitlement to pursue my PI claim which was null and void on the terms on compromise agreement, and the agreement and any conditions were not explained but just sent to be signed by me.

 

5. Because of all the above the stress and all the problems that it is causing is concerning my GP because of my medical history, heart condition and mental health this is just a continuation and being committed by a solicitor who was trusted and paid to help me, but has done exactly what the council did for six years, and that is to contempt me and my family based on a motivation which giving the circumstances is quite disgusting.

[steampowered]

"What the solicitor did wrong" is a separate concept to "what loss I have suffered".

 

I can only identify three possible heads of loss from your post:

1. compromising a PI claim contrary to your instructions

2. distress resulting from breach of data protection act

3. stress etc.

 

Out of the above, 1 could lead to damages being awarded. These would be assessed by reference to (1) the chance of a PI claim against the council being successful and (2) the amount of compensation you could expect to have been awarded if successful. This would obviously require a bit of an analysis as to exactly what your PI claim was.

In relation to point 2, the circumstances in which it is possible to claim compensation for breach of data protection are restricted. A simple breach of DP is not enough to trigger compensation. See http://www.legislation.gov.uk/ukpga/1998/29/section/13. This case doesn't relate to the 'special purposes' mentioned in that section so you'd need to prove some sort of actual financial damage (not just distress) resulting from the DP to claim compensation.

In relation to point 3, awards for stress/inconvenience can be made but they tend to be pretty modest (think couple hundred quid).

 

As mentioned in your previous thread, this does not sound like a strong claim to me. I think there is a high probability that your claim will fail and you will be left holding a bill for the solicitor's legal costs which will most likely be several thousand pounds. In High Court claims the loser will generally always pay the winner's legal costs. I really would suggest going to get some proper legal advice from a solicitor that does professional negligence claims if you want to proceed with this. If you are getting in too deep and want to back out, I would suggest writing to the other side offering to withdraw the claim if they will agree not to pursue you for legal costs. I know it is not what you want to hear, but I'd be doing you a disservice if I didn't point this out.

[callum1999]

Thanks Steampowered

 

On the grounds of negligence i have previously instructed a firm of solicitors, [edited] LAW, who have said that i have a good case for professional negligence against the solicitor, this was after considering the merits of the claim and seeking counsels opinion.

 

There take on matters was that failing to take instructions on reserving the claim, and failing to explain the legal terms of the compromise agreement was evident enough for them to make representation on my behalf.

 

The Data Protection, failing to seek a court injunction and any provisions under the MCA have been recognised after that advice.

 

It is now my case that the solicitor because of his negligence, this has caused me stress, anxiety worry and left living in conditions identified by Shelter as being dangerous for no logical reason, add to that he was aware of my heart condition and mental state, but he done the complete opposite to what any codependent solicitor would have done had they been in the same situation.

 

Please advice.

Edited May 9, 2016 by honeybee13
Law firm name removed.

[honeybee13]

Hello Callum.

 

Are the lawyers still acting for you? I've removed their name by the way, we don't need to know that in order to advise.

 

HB

[steampowered]

That's great, its good to hear that you have sought qualified legal advice on this. I don't want to second guess your law firm as it will be in a much better position to advise, but feel free to post if you want further input on here.

 

Good luck. Just make sure that you understand how the firm are being funded, and the possible outcome if your case is not successful (e.g. whether there is a CFA or legal expenses insurance policy in place).

[callum1999]

"What the solicitor did wrong" is a separate concept to "what loss I have suffered".

 

I can only identify three possible heads of loss from your post:

1. compromising a PI claim contrary to your instructions

2. distress resulting from breach of data protection act

3. stress etc.

 

Out of the above, 1 could lead to damages being awarded. These would be assessed by reference to (1) the chance of a PI claim against the council being successful and (2) the amount of compensation you could expect to have been awarded if successful. This would obviously require a bit of an analysis as to exactly what your PI claim was.

In relation to point 2, the circumstances in which it is possible to claim compensation for breach of data protection are restricted. A simple breach of DP is not enough to trigger compensation. See http://www.legislation.gov.uk/ukpga/1998/29/section/13. This case doesn't relate to the 'special purposes' mentioned in that section so you'd need to prove some sort of actual financial damage (not just distress) resulting from the DP to claim compensation.

In relation to point 3, awards for stress/inconvenience can be made but they tend to be pretty modest (think couple hundred quid).

 

As mentioned in your previous thread, this does not sound like a strong claim to me. I think there is a high probability that your claim will fail and you will be left holding a bill for the solicitor's legal costs which will most likely be several thousand pounds. In High Court claims the loser will generally always pay the winner's legal costs. I really would suggest going to get some proper legal advice from a solicitor that does professional negligence claims if you want to proceed with this. If you are getting in too deep and want to back out, I would suggest writing to the other side offering to withdraw the claim if they will agree not to pursue you for legal costs. I know it is not what you want to hear, but I'd be doing you a disservice if I didn't point this out.

 

Am i right that the any loss of right to claim PI due to professional negligence being alleged against a solicitor would be claimed under Breach of tort duty? ( failing to take instructions )

[steampowered]

Am i right that the any loss of right to claim PI due to professional negligence being alleged against a solicitor would be claimed under Breach of tort duty? ( failing to take instructions )

Yes, that's right. In order to succeed in a professional negligence claim you would have to demonstrate that (1) the solicitor owed you a duty of care, (2) the solicitor breached that duty of care, and (3) you have suffered loss and damage as a result.

[callum1999]

So would this include damages for stress, inconvenience and any link to PTSD that i would have claimed from the council steampowered??

 

And what is the general rule as regards exemplary damages being claimed, thanks.

[steampowered]

So would this include damages for stress, inconvenience and any link to PTSD that i would have claimed from the council steampowered??

The general position is that you cannot recover damages for general stress/aggravation/inconvenience as a result of breach of contract or breach of a duty of care in tort.

 

There are exceptions though I am not sure any of the exceptions could apply to your case.

And what is the general rule as regards exemplary damages being claimed, thanks.

The general rule is that there is no such thing as exemplary damages in English law. There are a tiny number of truly exceptional cases in which exemplary damages might apply, but certainly not in a general professional negligence case like this.

[callum1999]

Thanks, but if because of the solicitors negligence, if proved, the client has lost any rights he or she may have had to recover from those responsible because of the breach of contract, in this case, loss to claim from the council for stress, aggravation, inconvenience, who would be liable for that compensation if established. Would a claim against a solicitor for professional as to recover, and not under breach of contract, be covered by another head of damages other than breach of contract?

If a solicitor is held for losing a client compensation for a physical injury, how is the solicitor held accountable for any psychiatric injuries if the contract is breached.

[steampowered]

If it has been proved that the solicitor breached his or her duty of care towards you, and that caused you to lose a right you had to claim damages from the council, then you could claim damages depending on what chance of success you would have had in making a claim against the council and how much compensation you would likely have received if your claim was successful.

 

Normally, you can only claim for quantifiable loss and not for general aggravation and stress. If you suffer a recognised psychiatric injury, and that injury was foreseeable, damages can be claimed but I am struggling to see how that could apply in your case.

 

It sounds like you are essentially trying to make a personal injury claim against your solicitor. This will be extremely difficult to do. I don't see how you could claim damages for your financial loss resulting from being unable to raise a personal injury claim against the council AND further personal injury damages from the solicitor - that sounds like double counting to me. I really would suggest engaging a solicitor who conducts professional negligence claims for this (and asking them this type of question).

[callum1999]

Thanks for that Steampowered, the merits of the claim have been considered by a solicitor who has advised the solicitor was negligent, for failing to take instructions, all i am trying to do is to put myself back into the position that i would have been in, but for my solicitors negligence, which would include not on damages for psychical injuries but also any inconvenience, stress and all the unnecessary problems caused by the council, i cannot claim against the council now, because my solicitor acted negligently on a number of issues which denied me the right to claim against the solicitor, the council are no longer liable, in law, the solicitor who who allowed that to happen, by acting negligently, would now be liable.

 

In a nutshell, am i right to assume that any claims that were lost against the council, and if negligence is proved, could be recovered from the solicitor, bearing in mind, the compromise agreement itself could be deemed nul and void?

 

Any advice would be appreciated.

[Ganymede]

Thanks for that Steampowered, the merits of the claim have been considered by a solicitor who has advised the solicitor was negligent, for failing to take instructions, all i am trying to do is to put myself back into the position that i would have been in, but for my solicitors negligence, which would include not on damages for psychical injuries but also any inconvenience, stress and all the unnecessary problems caused by the council, i cannot claim against the council now, because my solicitor acted negligently on a number of issues which denied me the right to claim against the solicitor, the council are no longer liable, in law, the solicitor who who allowed that to happen, by acting negligently, would now be liable.

 

 

Why is this solicitor not issuing a professional negligence claim then?

[callum1999]

They have, within the High Court i am acting as a litigant in person atm.

 

I have taking the advice of solicitors on the merits of professional negligence who have established the points that would prove negligence, before i instruct them, i am demonstrating to the court that i am attempting to keep legal costs down, a CFA has been offered but i am waiting on the response the solicitor acting for solicitor for the next steps.

 

Proceedings were issued three weeks ago.

[Ganymede]

That's daft.

 

Just get the CFA signed and let the solicitors do all the hard work.

[callum1999]

Solicitors are reluctant to go after initial solicitor and loss of claim on the first accident, limitation period, but for the original solicitor not acting negligently the limitation period for the PI claim would not be an issue.

 

Been told that the courts would consider an extension in any event, giving the councils knowingly denying liability which was denied before and after the limitation, evidence from Shelter evidently showed they had no reason to deny liability, and use that denial as a way of being liable for the first accident as this would trigger the council using limitation as a defence.

 

I dont see why i should lose any rights to compensation based on limitation because the council, and without one shred of evidence as to suggest, continually denied liability not because they were right, but because as i have stated, this would trigger and deny me a claim based on the limitation period.

 

If a solicitor has not got the know-how or feels capable of dealing with this, i most certainly am not going to use him or her.

 

I would rather trust myself.

[steampowered]

In a nutshell, am i right to assume that any claims that were lost against the council, and if negligence is proved, could be recovered from the solicitor, bearing in mind, the compromise agreement itself could be deemed nul and void?

 

Negligence on the part of your legal representative would not make the compromise agreement void. The compromise agreement could only be unwound if some sort of fraud or misrepresentation was proved on the part of the council.

 

If you could prove in court that your solicitor was negligent and that you suffered quantifiable financial loss as a result, then you could recover for that quantifiable financial loss. If you could prove that you instructed your solicitor to retain your right to make a personal injury claim and they failed to do so, you could potentially recover damages which would be based on the strength of your PI claim and the level of compensation you might have been awarded if that PI claim was successful.

 

I strongly agree with Ganymede's suggestion that you should be properly involving a solicitor. We are not talking about a small claim in the county court here. This is High Court litigation and you will find yourself footing a bill of several thousands of pounds for the defendant's legal costs if you get it wrong.

 

I dont see why i should lose any rights to compensation based on limitation because the council, and without one shred of evidence as to suggest, continually denied liability not because they were right, but because as i have stated, this would trigger and deny me a claim based on the limitation period.

I don't understand the point you are making here. I just want to point out that denials do not have any impact on limitation periods. The only thing which stops a limitation period is issuing a claim form at court.

[callum1999]

So a solicitor cannot be held accountable for a botched up agreement, its all the other-sides fault, a when and only when you establish the other-side have acted fraudulently can you have any agreement null and void?? with the greatest respect, solicitors have no legal privileges as to automatic blame anyone else, in this case the council for a botched up agreement, If the solicitor is the reason why the agreement was signed, when evidently, it should not have been signed, the agreement would be deemed null and void because of the solicitors actions, but for his actions and not the council, the agreement would not even be a subject matter.

 

The solicitor had an obligation, if he has failed that obligation which would include any agreement which later has been established as null and void, the courts would not consider an application and base it on who was not responsible for the agreement, the solicitor was the main player in this, so therefore he would be liable if the agreement was reached, as would the council/ imo.

[steampowered]

So a solicitor cannot be held accountable for a botched up agreement, its all the other-sides fault, a when and only when you establish the other-side have acted fraudulently can you have any agreement null and void??

Any claims you may have against your solicitor, and any claims you might have against the council, are two entirely separate issues. The council is not responsible for mistakes made by your solicitor.

 

We are talking about a compromise agreement between you and the council here. Your solicitor is not a party to that agreement.

 

If your solicitor screwed up, you may have a negligence claim against your solicitor, but that has nothing to do with the council. It will not render your agreement with the council void.

 

the courts would not consider an application and base it on who was not responsible for the agreement, the solicitor was the man player in this, so therefore he would be liable if the agreement was reached, as would the council/ imo.

The circumstances in which a contract can be avoided are very clear as they have been developed by several hundred years of case law. Have a read of https://en.wikipedia.org/wiki/English_contract_law#Cancelling_the_contract.

[callum1999]

In their defence, the solicitor has stated that at 16.15, the solicitor informed the client that they would accepts the Councils offer on the clients behalf

 

Can a solicitor accept an offer of compensation " on a clients behalf" ?

 

As always any help is appreciated.

[Ganymede]

Who else would they accept it on behalf of? Not themselves, so it's their client.

 

Can we see the full Defence please?

[callum1999]

Hi Ganymede, but i had not agreed to it, the solicitor just assumed, and agreed to it.

 

Yes you can see the defence, but how do i get it sent to you?, im not very up with scans and sending documents.

 

The solicitors has also said in the defence, that he did not go for a court injunction because Legal aid would not fund this, however the emails in regards of legal aid, show a different account why further legal aid was not granted, and it had nothing to do with court injunctions, it was because of the offer being made for disrepair.

 

In other words another misrepresentation this time being peddled to the Court.