Although you do not have to engage a solicitor to file a claim for professional negligence however, there are significant advantages to having a solicitor. In this article we look at ten crucial questions you could want to think about before deciding to engage a solicitor or do it yourself.
Introduction
In the past, and as a result of the broad accessibility of legal aid, making a choice of whether or not to hire a solicitor seek a professional negligence claim was relatively simple. But, since the withdrawal of legal assistance by successive governments, and increasing costs for getting legal advice, this is not the case today.
While conditional fee arrangements (also called ‘no-win agreements, no fee’ or CFAs) offer a desirable option to access legal assistance to many litigants, they too are now the beneficiary of its own successes.
After the introduction on April 1, 2013 , of the Law Aid Sentencing Act and the The Punishment Act for Offenders 2012 the fees associated with success in CFAs were no longer payable to defendants, and instead, were paid to the successful claimant generally through deductions from the compensation that was repaid. Many claimants have resulted in hiring a solicitor more costly and, consequently it was a difficult decision to make.
Some things to keep in mind
Although the cost of settling claims for professional negligence is typically one of the most important factors to consider when deciding whether to engage a Frankowicze kancelaria, it shouldn’t be the sole consideration. Starting with the cost, we look at the elements we think are important when you are making your choice process.
1. Affordability
The cost of instructing solicitors is not cheap and generally there is an unidirectional relationship between the costs charged and the quality of service offered. But, there are several ways to fund legal negligence claims. These options are as we go over in more specifics in the Fund claims section on our website. It is worth noting that by involving a solicitor and a lawyer, you may have access to funding options that are not open to the litigant in individual.
The issue of affordability isn’t restricted to determining if you can or do have the funds needed to pay the services of a solicitor. Another factor to consider is whether you are able to afford to pay for it. If you do not have an experienced and knowledgeable solicitor There is a chance that any case will be more difficult to resolve and, consequently, any settlement to take longer to be repaid. Additionally, there is a higher possibility of incurring a cost responsibility on behalf of the defendant due to procedural inconsistencies. At the very least there is a greater possibility of a valid claim being struck down by the judge.
Thus the affordability issue is one that needs more than a simple analysis and is definitely one you must consider when you are in the middle.
2. The dispute’s nature
Sometimes , it is difficult to determine if, when properly classified the behavior of the adviser at issue is professional negligence, an instance of poor professional service or is a case of professional conduct. In certain instances the act could fall within any of these categories, however it isn’t the case in all instances.
In general, it’s only the first (professional negligence) which is likely to be able to justify a claim for substantial financial compensation, and also to justify the advice of an attorney. complaints about poor service are usually handled by ombudsmen. Matters of misconduct fall within the purview of regulators, like the Solicitor Regulation Authority (SRA) or the Institute of Chartered Accountants for England & Wales (ICAEW).
3. Proportionality
Professional negligence claims are usually complex and, as consequence, they can be expensive to pursue. If the amount of your case is small, it’s likely that the cost of hiring a solicitor to pursue it will be greater than the amount of compensation you get. If the amount for your case is lower than PS10,000, then you’re likely to have a lower chances of recovering your expenses even if you’re successful. In addition, even if amount of your claim is higher than PS10,000, successful claimants won’t always be able to recover all the costs.
When your claims are not of much value, you could opt to hire a lawyer to perform a few of duties, and then take on others on your own. You could also decide it’s not necessary to engage any solicitor.
4. Timing
In the decision-making process, you may decide the best time to hire a lawyer. In some instances and as a way to reduce costs, you could opt to take on the initial steps of an individual negligence claim on your own in the hope of having a solicitor on the case at a later time should you feel it appropriate.
This is definitely an option you have butbefore you decide to it you might want to think about the potential risks you could be taking on. There is the chance of knowingly skewed your claim in its early stages or delaying its resolution and both of these could cause your claim to be more costly to settle in the end.
5. Arms equality
A majority of professionals have an insurance policy of professional indemnity to shield themselves from professional negligence claims that are made against them.
If a claim for professional negligence is made, it’s likely to be reported to an insurer , and later on to an internal adjuster. The adjuster is usually a solicitor with special training and experience handling professional negligence claims. As per the conditions of the policy the adjuster will generally decide, usually at the back of the room the way your claim will be handled. If required the adjuster may select an outside solicitor in some cases, but not always using its panel. The chosen solicitor will be a specialist typically within a major commercial law firm that is primarily involved in claims for professional negligence. The fees of the solicitor will be paid by the insurance company.
Although the reality that the professional can benefit from the expertise from a specialist team of solicitors does not mean you have to hire your own lawyer of your choice however, it is essential to be aware of what you’ll be facing and how there could be a significant difference of opinion should you choose not to take the advice of a specialist solicitor.
6. Personal experience
It is not common for plaintiffs to have prior experience making a claim for professional negligence. Although this may be a favorable situation but if it is the case in your situation this could leave you with a serious disadvantage, and could be a factor you should be considered in your decision-making.
However it is beneficial if you have experience in the particular area which led to the claim, or prior experience in other aspects of the litigation process, then you could feel more confident managing your claim on your own. In our experience, it’s rare to have 2 claims which are identical and we’d advise you not to believe that one case can serve as a solid basis for the next.
7. Complexity
Professional negligence claims are renowned for their complex nature. They can be triggered by the circumstances and evidence that they are based on and the legal rules that need to be followed, or the process to be followed when pursuing the claims. If it is obvious that the expert committed a mistake, difficulties may arise in proving (both in terms of law and fact) the fact that the professional was responsible for losses and the amount and nature of the loss. As a matter of fact, and not by it’s own, this doesn’t require the assistance of a lawyer, but it is an important factor to consider.
8. Time commitment
Due to their complex nature, professional negligence claims generally require a considerable duration of commitment. This is even true for lawyers who have experience handling these cases. If you are not, the time commitment will be even more significant. If you’re retired and/or don’t have any commitments to make it might not be a major problem for you. However, if you are a part of other commitments to family or work or other obligations, you might not be able, or the motivation, to the pursuit of any claim.
It is crucial to remember that even if employ a solicitor to handle your case it is likely to be a time commitment from you but it will be much less than the case if you dealt with a claims on your own.
9. Stress and emotional stress
When you pursue an action for professional negligence on your own behalf or on behalf of a company do not underestimate the emotional impact it will impact you. In its nature, the process of pursuing claims is adversarial and tempers are challenged. Finding a lawyer who is competent to protect you from and diffuse confrontational exchanges is often a benefit which isn’t thought of from the beginning by those who haven’t had any prior experience in litigation.
10. Strategy
The final consideration is the implications of strategic planning of the professional negligence case. If you are deciding between hiring a solicitor or acting on your own one of the primary considerations is the impact this could have on the defendant’s adviser (and its insurance company). Without legal representation, there’s likely to be more doubt about your dedication and determination, as well being a lack of credibility. This could encourage the adviser to defend rather than settle your claim. The reality it is the advisor’s (and the insurer’s) risk of liability for the costs is reduced significantly when you do not have counsel, may make it more likely to refuse or delay your claim.
Although it is acceptable to say that litigants in person have certain procedural advantages over litigants who represent themselves legally, a series of court rulings in recent times have proven that this permissibility isn’t unlimited. An excellent instance of this can be seen in the case of Reynard in Reynard v Fox where an action for professional negligence brought by the litigant in person with an expert in insolvency practice was dismissed due to procedural inconsistency. The details of the case have been more detailed by The Law Society Gazette.
It is also an error to believe that, as an individual litigant, the court could (or will likely) be more accommodating or more generous in deciding your case. This is not likely to be the scenario.
Alternatives
There aren’t many alternatives to instructing lawyers or acting on your own. But, you may want to contact an Citizens Advice Bureau for advice and assistance , or perhaps an attorney in your area which is able to do pro-bono projects.
Conclusion
The claims of professional negligence can be naturally complex and, while it may not pose a major obstacle to a personal action it is important to consider several factors before making the decision to take action.
If you decide to engage a solicitor you’ll surely want to get the best you can.
Copyright Reseau Actu.