Suing your solicitor to get more damages

I presented a training course last week, for Liverpool Law Society on Professional Negligence in Personal Injury Claims. These claims have become more common over the last few years. This is partly because of the pressure on firms to delegate work to junior case workers because of limited recoverable costs. It is also because some firms have actively advertised for work. We discussed the things that can go wrong including missing limitation and court deadlines which are often the cause of sleepless nights for PI Lawyers.

The most interesting discussion concerned ‘under settlements’, those cases where the client is unhappy with the outcome of the case and wants more compensation. Some of these are fairly straightforward. I acted for a client last year, whose case had settled for £2.5k. We were now 4 yeurs post accident and he still had problems with his knee. His original solicitors had obtained a report from a GP expert who had given him an optimistic prognosis for a soft tissue injury. But he had also said that he would need to be seen by an orthopaedic surgeon if he had ongoing symptoms. This had not been done and the case had settled. The client had not recovered. Further evidence revealed a significant ligament injury and the claim against the solicitors settled for about £24k. That was a clear error by the junior case worker who had processed the claim. The advice from the expert had simply been missed.

Under settlement claims are not always that straightforward. The idea of claimants effectively bringing a secondary claim for an uplift is controversial. There are concerns about the growth of a secondary market for these cases, especially when backed up by adverts promising more money.

All of this was considered by the Court of Appeal, including Jackson LJ, in the recent case of Thomas v Hugh James Ford Simey Solicitors [2017] EWCA Civ 1303. The original case concerned a claim under the old Coal Miners VWF Scheme. This was a procedure for processing high volumes of cases on the basis of processed work and relatively low fixed fees. So it has many of the features of those cases brought under the PI protocol or fixed fees. In 2001, his solicitors secured an offer of £10,373 for pain and suffering. They wrote to him to say that he might be able to claim further damages if he was no longer able to do – ‘things such as gardening, DIY, home decoration, window cleaning, car maintenance, and car washing.’ The letter went on to say – ‘The amount of compensation payable in such cases can be significant.’ No figure was mentioned.

Mr Thomas met the solicitor. There was a detailed discussion and he said that he did not wish to a pursue a services claim. So he got £10,373. Years later he saw an advertisement from other solicitors offering the chance to obtain top up damages in these cases. They brought an action against the first firm and the case went to trial in 2016 – 15 years after the settlement. The Trial Judge and the Court of Appeal firmly rejected the claim. Mr Thomas had told the solicitor that he did not wish to pursue a claim. They were under no duty to go further. There was no duty on them to try and persuade him to change his mind. Jackson LJ commented on the need for realism in relation to what is expected of solicitors –

‘It is significant that this was a modest claim which the defendant solicitors were running under a fixed costs regime. I have read through their substantial file with admiration, bearing in mind the small amount of costs which they received at the end. Neither advocates nor judges should lose touch with reality. The CHA is a scheme for dealing with high volume, low value personal injury cases for fixed costs. There must be a sensible limit upon what we can expect solicitors to do in such cases.’

So what will be expected of solicitors as we move into a world where most straightforward PI claims will be – ‘high volume, low value personal injury cases for fixed costs’?

Will the bar be lowered? Where will the line be drawn?

Jackson LJ pointedly said in Thomas –

‘What is regrettable, however, is that a second firm of solicitors then recruited the claimant to bring an action against the first solicitors in order to 'top up' his award. The information given to the claimant by the second firm of solicitors "turned his head" so that he was "prepared to advance incorrect assertions’ and

‘The civil justice system exists to enable injured parties to recover compensation for genuine wrongs. It does not exist to service artificial claims stirred up by advertisements.’ (my emphasis).

I think any solicitors looking to bring claims for under settlements need to exercise great caution. There will always be the obvious cases such as the one I dealt with where things were simply missed. And there was the other recent case of Procter v Raleys (another VWF scheme case) where Tomlinson LJ said -

‘The written advice given to him was unclear, and there were clear indications that it may not have been understood. It is not asking much of a solicitor in such circumstances to make sure that his client understands the opportunity apparently being passed up.’

So the solicitor has to ensure that the basis issues are explained and understood. But beyond that it is going to be a challenge. It isn’t enough to show that there was an under settlement if the lawyer did what was expected.

And any solicitors who are considering advertising for, or buying in these cases, can expect a hostile reception from the courts.

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