A case where a solicitor failed to meet a deadline and prejudiced the client’s claim

The accident

Mr and Mrs J and their two young children were travelling in their car along a duel carriageway in the outside lane. As they began to overtake a lorry in the nearside lane it suddenly pulled out. The car was in the lorry’s blind spot. Mr J who was driving had nowhere to go and was forced into collision with the central reservation going out of control.

Thankfully the family’s physical injuries were relatively minor despite the traumatic accident, but it had a huge toll on their mental health, particularly the children, as they thought they were going to die when the car went out of control.

The family instructed a firm of solicitors to pursue a claim for their injuries. But what started out as a traumatic experience soon became a whole lot worse as things started to go badly wrong.

The solicitors were very slow in dealing with the claim. Whilst they submitted the claim to their opponent, and the insurers admitted liability, they made very slow progress obtaining the relevant evidence to value the claim, including delays in obtaining medical reports.

What went wrong

As they were approaching the third anniversary of the claim little progress had been made. For the adult’s claims, if court proceedings are not commenced within 3 years the right to claim can be lost completely (a longer timescale applies to children). The solicitors prepared proceedings to keep the parent’s claims alive, but left it to the last minute and posted the proceedings to court just before the 3 year anniversary. Regrettably the proceedings were delayed slightly in the post and they arrived at court one day late missing the dead line.

The Court still issued the proceedings and returned them to the solicitors so they could serve them on their opponent. The rules of court require the proceedings to be served on the opponent within 4 months, or they risk the proceedings being struck out. For some inexplicable reason the solicitors did not serve the proceedings for 6 months.

Solicitors were appointed by their opponent’s insurers who filed a defence claiming the proceedings should be struck out because they were issued too late and not served in time.

Where no defence is filed a claimant is entitled to ask the court to give them judgment in their favour by default in the absence of a defence. But despite a defence being filed, and the claimant not being entitled to judgment by default, for some inexplicable reason the family’s solicitor still applied for judgment by default to be entered. Normally this would be rejected by the court where a defence has been filed. But the court entered judgment by mistake to compound the errors.

Their opponent’s solicitors immediately applied to the court to set aside the inappropriate judgment and sought permission to defend the claim they had previously been prepared to pay because of the solicitor’s errors. They invited the family’s solicitors to consent to the judgment being set aside so the case could proceed to court fully defended. Again for no good reason whatsoever the solicitors refused which forced the matter to a hearing which they were bound to lose.

The family knew nothing about this approaching hearing. But a few days before the hearing, their nightmare suddenly got a lot worse. Out of the blue another firm of solicitors wrote to them who had been appointed by the Solicitors Regulation Authority who had closed down the firm. The letter suggested they should immediately find new solicitors, and informed them for the first time there was a hearing in court in a few days time. The family had no time to find another solicitor and did not understand what the hearing was for. So Mr and Mrs J were left to attend the hearing on their own before the judge with no real understanding as to what was going on having been kept in the dark by their former solicitors.

They asked the court to adjourn the hearing so they could find another solicitor. But the court refused. The judge pointed out that the solicitors should never have applied for judgment and the court should never have entered judgment, and the opponent was entitled to have the judgment set aside. But worse than that the judge ordered them to pay the legal costs of their opponent as the solicitors should have consented to the judgment being set aside and there should have been no need for a hearing. They were ordered to pay £1,750, money that the family did not have.

The family now searched for a new solicitor, initially without success until she contacted Hayward Baker. Other firms refused to take on the case with all these problems. We agreed to meet with the family free of charge to discuss the case, and at the meeting we agreed to take on their case on a no win no fee basis. Understandably Mrs J in particular was very emotional and distressed by the worsening position and worried how they could pay their opponent’s costs.

How we resolved the problem

Stage 1 was to protect the family against the order for costs. We contacted the opponent’s solicitors and persuaded them to agree to give us time to obtain payment as part of a negligence claim against the solicitors. So a letter of claim was sent to the former solicitors holding them responsible in negligence and insisting they indemnify the family against this liability. But the firm was now closed. All solicitors must be insured, and with the help of the Solicitors Regulation Authority we were eventually able to make contact with the insurers who agreed to investigate.

Stage 2 was to see if we could avoid the proceedings being struck out. So we applied for another hearing. At this hearing our intention was not only to avoid a strike out, but also to seek an order that the original solicitors be joined as a defendant so we could seek an order they indemnify the Claimant if the insurers did not agree to pay.

The day before the hearing the insurers for the original solicitors agreed to immediately pay the £1,750 and so it was no longer necessary to make the solicitors a defendant. This was a great relief to the family.

On the day of the hearing we discussed the case with the opponent’s lawyers outside the court room, and having found a loophole we were able to persuade them to drop their attempt to strike out the case for failing to serve within 4 months.

So now there was only one obstacle left. The proceedings had still been issued one day late and they still had a defence maintaining they no longer had to pay. But the court has a discretion whether to waive or extend the time limit, and the case would have to be listed on another day for a longer hearing for the parties to present their arguments to the judge as to whether the claim should be allowed to proceed or not.

This additional time gave us the opportunity to present our arguments directly to the opponent’s insurers as to why we thought we would win the argument. If we won we would seek an order they indemnify the Claimant’s costs of this further hearing.

After negotiations we were able to persuade the opponent’s solicitors to drop their defence rather than risk losing the point at a further hearing, and the family were now back in the position they should have been in had the solicitors not been negligent. The claims would now proceed as normal, and the remaining issue was now simply what were the claims worth.

A successful outcome

Having reviewed all four of the claims individually we assessed what further evidence was still required. In particular the children needed counselling that should have been arranged years earlier as they were still disturbed by the accident. Psychiatric reports were also required.

After sorting out the counselling and further reports all four cases were settled amicably without the cases having to go back to court so the family could put the whole experience behind them and get on with their lives.

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