# Solicitor's mistake



## seract (23 May 2008)

Hi new to this but i need a pointer.I will try to make this as short as I can.Had a accident 21/04/06 at work,broken nose,two teeth knocked out,small scar on my face.Went to solicitor told him i wanted to claim so he took notes i signed forms for PIAB claim.He told me this could take a couple of years to come through,fine i said left it at that.Two years passed last month,rang up to see if anything was happening with the claim,last week was told to come in and see him so i did.
He tells me he sent me out a letter saying he took advice from a barrister saying the case was high risk and i should seek advice elsewhere or claim myself from PIAB.I told him I never got the letter and asked to see a copy so he showed me it,turns out my address was not correct because he took the notes down in sort of shorthand and letter reached me.Now the two year deadline is passed and i cant go to another solicitor.What are my options?any advice would be helpful


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## ClubMan (23 May 2008)

*Re: Solicitors mistake*

[broken link removed] could be one option?


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## ubiquitous (23 May 2008)

*Re: Solicitors mistake*



seract said:


> Hi new to this but i need a pointer.I will try to make this as short as I can.Had a accident 21/04/06 at work,broken nose,two teeth knocked out,small scar on my face.Went to solicitor told him i wanted to claim so he took notes i signed forms for PIAB claim.He told me this could take a couple of years to come through,fine i said left it at that.Two years passed last month,rang up to see if anything was happening with the claim,last week was told to come in and see him so i did.
> He tells me he sent me out a letter saying he took advice from a barrister saying the case was high risk and i should seek advice elsewhere or claim myself from PIAB.I told him I never got the letter and asked to see a copy so he showed me it,turns out my address was not correct because he took the notes down in sort of shorthand and letter reached me.Now the two year deadline is passed and i cant go to another solicitor.What are my options?any advice would be helpful



Why did you wait all of two years to make contact with him?


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## seract (23 May 2008)

*Re: Solicitors mistake*



ubiquitous said:


> Why did you wait all of two years to make contact with him?


 
I know seems stupid but never dealt with a solicitor before he said leave it with him and he would get back to me so thats what i did.


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## Ravima (23 May 2008)

*Re: Solicitors mistake*

you need to see another solicitor. from what you say, your first shoice seems to have boobed. You have 2 years to mount the claim, if you have no done so to date, then in my opinion, your claim against employer is dead.

You should be able to claim against your first solicitor.

you need to get further legal advice. If you are living in a small town, I would suggest you go to the nearest big town or city to get yoru second solicitiror.


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## ubiquitous (24 May 2008)

*Re: Solicitors mistake*



Ravima said:


> You should be able to claim against your first solicitor.



On what basis, exactly? It seems to me that the OP has boobed by not contacting the solicitor within 2 years. The solicitor cannot be held responsible for this neglect on the part of their client.


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## MandaC (24 May 2008)

*Re: Solicitors mistake*

Also, is it worth phoning PIAB and speaking to someone senior and explaining the situation.  From their website, it says claims can be made outside of two years in certain circumstances.


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## Ravima (25 May 2008)

*Re: Solicitors mistake*

OP went to solicitor in good time. Solicitor is the professional and OP was entitled to a professional service. Solicitor is assumed to know the law, OP is not. Solicitor seems to have initiated the claim, but not pursued it. Solicitor is negligent. it is not unusual for a client not used to law would trust solicitor and not be bothering him every few weeks. others might, but OP did not.

My reccomendation remains the same.


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## rmelly (25 May 2008)

*Re: Solicitors mistake*

What has getting an address wrong got to do with 'knowing the law'? The letter advising him to seek further advice was sent within the 2 years.


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## ubiquitous (26 May 2008)

There is no evidence to suggest that the solicitor has acted unreasonably in this case. Hence no basis for a negligence claim or a complaint to the Law Society. On the other hand, the solicitor might validly claim that the OP acted unreasonably in failing to pursue the query for two years.


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## dazza21ie (26 May 2008)

Ravima said:


> Solicitor seems to have initiated the claim, but not pursued it. Solicitor is negligent. .


 
Some would argue that a solicitor pursuing a claim that is doomed is acting negligently. 
The OP is in an impossible position. Claim against the employer seems to be statute barred. OP could bring a claim against the solicitor but it would be extremely risky and unadvisable. A complaint to the Law Society would appear in this case to be a waste of time also as it doesn't appear that the solicitor done anything wrong.


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## mf1 (27 May 2008)

I have had clients with dodgy cases who very deliberately wait until quite close to the Statute of Limitations deadline before contacting me to advise on instituting a claim. Its quite clever really because if you agree to take on the case, you're stuck with having to institute proceedings before the deadline to protect yourself and your client or taking proper instructions and taking proper advices from Counsel ( all of which takes time and effort) and run the risk of being outside the Statute. Which is practically an indefensible negligence action. 

As a matter of practice, I now do not touch "late" cases at all. 

In this instance, its touch and go - did the solicitor actually send the letter? Did he genuinely send it to the wrong address? Should he have followed up with a  phone call? Should OP have gotten in touch earlier ?

mf


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## Caveat (27 May 2008)

Does negligence not need to have context/relativity etc?

As others have intimated, it might be difficult to claim negligence on the solicitor's part if the OP themselves could be accused of being neglectful in their own case.  It could be argued (I'm guessing) that it musn't have been the highest priority for the OP.


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## MOB (27 May 2008)

Might I just second MF1's comment.  The solicitor in this case could (and probably should) have done more to protect himself from a quite possibly unjustified, (but difficult to defend), negligence action.   When declining to take a case, we have to be very careful to:

1.   Make it absolutely clear that we are not taking the case;  

2.   make it clear that the client should take prompt advice elsewhere, as failure to do so may render the claim statute barred, 

3.   simultaneously avoid straying into giving any actual advice on how the Statute of Limitations applies to this particular case (in case the client then relies on our advice regarding the Statute, and we have it wrong due to not having full enough details at initial stage).

it's a minefield for the unwary practitioner.


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## ubiquitous (27 May 2008)

MOB said:


> 2.   make it clear that the client should take prompt advice elsewhere, as failure to do so may render the claim statute barred,



Just for the sake of clarity, does this extend to sending communications to this effect by registered post? 

And what then to do if registered post is returned because of a wrong address or other reason?


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## Soldier (27 May 2008)

well whos to say the solicitor even sent the letter. maybe after he got the phone call he typed it up there and then and wrote the address wrong so he'd have some excuse. usually solicitors have a ledger to say what letters are sent on what days and some are registered. ask to see the ledger.


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## MOB (27 May 2008)

Soldier said:


> well whos to say the solicitor even sent the letter. maybe after he got the phone call he typed it up there and then and wrote the address wrong so he'd have some excuse. usually solicitors have a ledger to say what letters are sent on what days and some are registered. ask to see the ledger.



I don't keep such a ledger;  I think very few solicitors would have such a thing these days.  I would have a record of individual registered post items, but not a ledger showing each and every letter for a given day.


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## MOB (27 May 2008)

ubiquitous said:


> Just for the sake of clarity, does this extend to sending communications to this effect by registered post?
> 
> And what then to do if registered post is returned because of a wrong address or other reason?



 Registered post would be overkill in my view.  I would usually make sure I had a phone number, email and full postal address for any new client or prospective client.  For any sort of compensation case, I would also make clear at initial consultation that I will only start work when they sign the engagement letter which I intend to send out to them (though in reality, I usually have work started before clients ever sign letter and send it back in).   

If I decided not to take a case, I would make a phone call to let the client know;  I would put a note of the call on the file and follow up by sending a 'non-engagement' letter, which would inform client that I have not opened a file for this and will be taking no further action.   I maintain a file for 'prospective clients and matters'; This is where I keep a record of all matters where I have not agreed to act, or indeed where the client has decided not to use my services.


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