Claims Against Solicitors

As we have just seen in Euro 2024, there is the offside rule and the offside trap. The first is easy, but the second requires training and practice. Woe betide the lawyer who says, ‘It’s all a matter of common sense.’   

Commercial Leases are a growing source of professional negligence litigation. In part because commercial clients are litigious, in part because leases are long and difficult to decipher, and in part because there is now a cottage industry of firms who specialize in suing solicitors. What is necessary for a successful action for professional negligence against your legal adviser?

First, not every failure of a solicitor to do something will be an act of negligence. To be an act or omission that qualifies as negligent it has to be something which no reasonably competent solicitor would do.

Second, not every act of negligence will cause the client harm.

So far as leases are concerned, the areas which can give rise to claims might be categorised as follows:

1. A procedural error – a failure to do something on time.
2. A failure to give advice.
3. A positive misstatement of the client’s position.

The test is the same: what would the reasonably competent practitioner have done in possession of the facts which were reasonably discoverable at the time?

Errors of omission will be things like failing to effect a 1954 Act notice; failing to effect an assignment; failing to register the lease; failing to issue proceedings or a failure to serve a required notice etc. So long as the omission is in respect of something which the reasonably competent would have done, then negligence is established. The issue usually becomes one of whether the failure has caused the client loss.

A failure in the giving of advice is less straightforward. Where the client seeks advice on the terms and potential liabilities under the lease, then the advice must cover all those terms which may give rise to liability. Usually, the solicitor will have a ‘template’ advice which will cover these points. But the situation becomes less clear where the solicitor is asked to carry out the legal work necessary for an assignment or registration and is not asked to advise on the terms in the lease itself. Here the question becomes: what were the terms of the solicitor’s instruction?

If you are a lessee or landlord facing a potential liability under a lease for something which you feel ought to have been pointed out to you before you signed, take legal advice.