Lawyer v lawyer: where there's blame there's a claim?

09 December 2015. Published by Claire Revell, Partner

Dissatisfied clients of law firms have probably never had so many ways to complain about their solicitor.

Clients can make formal complaints to both the Legal Ombudsman and the SRA, although recent reports from the Legal Ombudsman suggest that complaints against solicitors are actually falling. A quick peruse of any social media platform or internet forum will swiftly uncover more public 'naming and shaming' of solicitors. Further, as readers of this blog may recall, websites such as claim to 'expose' solicitors and allow their disgruntled clients a public opportunity to vent, albeit occasionally in a rather defamatory vein. We are even aware of solicitors' websites that feature the names of their competitors that they have successfully sued for professional negligence.

Despite the myriad of ways in which clients can complain without recourse to the courts, professional negligence claims against law firms almost tripled from 2013 to 2014. Googling 'sue my solicitor' produces over 500,000 hits, many of which are claimant professional negligence firms, so potential claimants are frankly spoiled for choice, although the quality of the advice given in those results (often from non-lawyers) is distinctly variable. 

As with any trend, a number of firms have capitalised on the opportunity and branded themselves as specialist professional negligence firms with particular expertise in suing solicitors. However, some firms have gone one better and have started to target solicitors who specialise in particular areas of work. Frequently this relates to volume-driven work, such as MMR litigation and vibration white finger claims, the latter having presumably been encouraged by recent high profile claimant-friendly decisions such as Procter v Raleys Solicitors. These are types of litigation where much of the underlying advice given to the client was relatively generic in nature and the work was being carried out on a high volume, low cost basis – one common allegation is that the firm undersettled CFA-led litigation, the insinuation being that the solicitor recommended a quick settlement over a proper settlement so as to crystallise the CFA and improve the firm's own cash flow.  As the work was done in bulk, these specialist firms know that any firm they sue will be a ripe source for further instructions, which further provides them with the added bonus of being able to tell future clients that they 'have experience' with that firm.  They can also re-use previous template claim correspondence so as to make this even more attractive.

We are also seeing an increase in claims being brought through companies who specialise in gathering claimants and passing the information across to panel firms of claimant professional negligence lawyers, so-called "claims-farming".  In particular, we have seen a number of claims arising out of divorce proceedings involving financial settlements which included a pension. These claims-farming companies typically target former wives and run adverts in popular women's magazines, as well as national newspapers and radio, accompanied by glowing reader testimonies. They reassure the wives that no contact with their former husband is required and provide obligation-free initial consultations.  The adverts are couched in very tempting terms, and we are aware that some of these organisations are conducting these cases in their hundreds.

As adverts from these types of firms usually state that they will investigate matters which took place in the last 15 years, a large proportion of these claims are likely to be outside of the primary limitation period of six years.  However, given that any claim can be pursued all the way through the pre-action protocol process without any fear of having to pay the other side's costs if the claim is abandoned, many speculative claims are being brought purely against the backdrop that there is nothing to lose.  Needless to say, all of this is causing much consternation among the solicitors that are facing the claims and their PI insurers; even the speculative claims cost a lot to dispose of in defence costs, so this whole issue is placing a significant burden on the profession and increasing the (already significant) pressure on PI insurance rates.  

This trend looks set to run and run, particularly as solicitors embrace new technologies so as to make it even easier to capture prospective claimants and automate claim correspondence.  Other areas of law may well be the next targets, specifically other types of personal injury work.  So firms which carry out bulk work of any sort (and their professional indemnity insurers) may wish to watch this space.

Stay connected and subscribe to our latest insights and views 

Subscribe Here