A large number of the professional negligence enquiries we receive at Specters concern litigation that has ended poorly for the client.
We often hear complaints that solicitors did not warn their clients of the risks of litigation or that they spent more on the case than it was worth, meaning the client is left with a huge bill.
In this blog, we will briefly examine these two common complaints and the duties of solicitors.
Litigation Without Merits
Litigation is an uncertain business and at the start of a case where a client may not be in possession of all the relevant information, a solicitor often has to make a judgement call on the likelihood of success.
Sometimes, the solicitor in question is wrong and being wrong is not necessarily the same as being negligent.
In some occasions, it should be obvious from the start that a client has no case.
This could be because the known facts clearly show that the other party was correct, or it could be that the law is against the client in this particular case.
A solicitor does have a duty to follow their client’s instructions and the client is entitled, if they wish, to pursue litigation with only a small chance of success.
However, a solicitor is not entitled to simply stand by and allow the client to pursue such a case.
Solicitors have a duty to warn clients about the risks of continuing a case with low prospects and of the potential consequences of losing and, if they fail to do this, they may have been negligent.
Similarly, if a solicitor fails to appreciate and assess obvious risks, and they incorrectly advise the client to continue with the case, it is no defence to a claim for negligence for a solicitor to say that they were simply acting on their client’s instructions.
On rare occasions a solicitor may feel that they have a clever solution to a client’s problem, even though the weight of the facts or the law may be against the client.
The solicitor may decide to use the client as a test case for their new strategy.
In principle, there is nothing wrong with this and it is a part of how the law develops, but the solicitor has a duty to keep their client informed.
They would need to warn their client that prospects are only good if the Court accepts the solicitor’s new approach.
Of course, when a case is in front of a judge there can be no guarantees.
If a solicitor fully explains that a case has either conditional or no merits and a client decides to continue despite this, then the solicitor is entitled to rely on those instructions and is obliged to follow them.
However, it is rare a client will want to proceed following advice that they are very unlikely to win and likely to have to pay the other party’s costs.
Excessive Costs Relevant To Merits
Even if a client has a good case that not necessarily mean that it is a case that should be pursued.
There is no sense in pursuing a claim for £100,000 if the solicitor will have to bill £300,000 in costs to their client in order to succeed.
Although the solicitor can expect to recover some of their costs from the losing party, the Courts will keep proportionality in mind when assessing costs.
They will be likely to disallow costs that are not proportionate to the sum being claimed.
When costs are disallowed, the client is usually obliged to pay them and may find that they have to pay their entire damages award or more to their solicitor.
It is obvious that no client would willingly choose to take part in litigation where even if they won, they would be financially worse off.
Solicitors should conduct a cost/benefit analysis at the start of a claim.
Although it may not be clear at the very start that high costs are likely to be incurred, an experienced solicitor should be able to spot red flags.
These include: multiple defendants, high levels of documentation and complicated facts.
The solicitor has a duty to warn their client that there is the potential for costs to exceed the likely recovery of damages, and ensure that the client can make an informed decision on whether to continue.
The solicitor should also keep their client updated as to the level of costs incurred throughout the case and should specifically warn their client as soon as it seems that costs are becoming or could become disproportionate.
If a client is fully informed of this and chooses to continue, then the solicitor is obliged to follow these instructions.
However, a solicitor who fails to keep costs under review and keep their client informed, then presents the client with a huge bill at the end of the case, may be negligent.