A recent High Court case in Ireland serves as reminder for professional negligence litigators in England and Wales of the importance of adducing expert evidence to substantiate allegations of negligence. The Court in Thomas Loomes Practising as Thomas Loomes & Company Solicitors v Rippington & Ors (Approved) [2020] IEHC 237 held that the commencement of a professional negligence action, without first ascertaining that reasonable grounds do so exist, amounts to an abuse of process of the court.
Do you have a claim against a professional? If you want expert legal advice, do not delay in instructing us so we can assess the legal merit of your case. We can often take on such claims on a no win no fee basis (such as a Conditional Fee Arrangement) once we have discussed the claim with you and then assessed and advised you on the merits of the proposed professional negligence action.
The Background
This is a claim by a firm of solicitors, to recover professional legal fees from the defendants which were incurred when they were instructed to act on behalf of the defendants in probate proceedings. The claimant acted for Ms. Rippington and the other defendants in the probate proceedings, and Shortly thereafter, Ms. Rippington and the other defendants served a Notice of Discharge. The claimant produced to the Court a Bill of Costs which set out in considerable detail the professional services provided by the claimant, the various steps that were taken and the costs attributable to same.
In her Defence and Counterclaim, Ms. Rippington, on behalf of herself and the second named defendant (there is also a Defence on behalf of the third named defendant) and alleged, without stating any particulars, that the legal services provided by the claimant were “not up to a professional standard”. In her Counterclaim, Ms. Rippington and the second named defendant seek an order striking out the plaintiff’s claim for summary judgment, an order for plenary hearing and “further or in the alternative, damages, costs and outlay”.
The only matter of substance raised by Ms. Rippington is a general allegation of professional negligence against the claimant. No particulars are given and no expert report was obtained.
The Judgment: Abuse of process to commence claim without ascertaining whether there are reasonable grounds to do so
It is well established that it is an abuse of the process of the court to launch a professional negligence action without first ascertaining that there are reasonable grounds for doing so. This equally applies where a person seeks to defend an action, such as this for professional fees, on the grounds that the professional involved was negligent and in breach of duty. The Court referred to the following passage from Denham J. (as she then was) in the decision of the Supreme Court in Cooke v. Cronin & Neary [1999] IESC 54, where she stated: –
Legal Professional duty
Counsel for the Respondents submitted that this case was run on a wing and a prayer. He informed this Court that he had brought to the attention of the Learned High Court Judge the statement of Barr J. in Reidy v. the National Maternity Hospital, unreported judgment delivered on 31st July, 1997 where he stated at page 15:
‘It is irresponsible and an abuse of the process of the court to launch a professional negligence action against institutions such as hospitals and professional personnel without first ascertaining that there are reasonable grounds for so doing. Initiation and prosecution of an action in negligence on behalf of the plaintiff against the hospital necessarily required appropriate expert advice to support it.’
He pointed out that this had been endorsed by Kelly J. in Connolly v. James A. Casey and Laura Murphy (Trading under the style and title of Casey and Murphy) and Michael Fitzgibbon, unreported, High Court, Kelly J., 12th June, 1998. That was an action where the Defendants, who were solicitors, were sued for damages for professional negligence. Kelly J. stated at page 19:
‘I have no difficulty in endorsing the views of Barr J. that the commencement of proceedings alleging professional negligence is irresponsible and an abuse of the process of the Court unless the persons advising such proceedings have reasonable grounds for so doing.’
While bearing in mind the important right of access to the Courts I am satisfied that these statements of law are correct…”
Thomas Loomes Practising as Thomas Loomes & Company Solicitors v Rippington & Ors (Approved) [2020] IEHC 237 (06 March 2020)
Pre-Action Protocol for Professional Negligence Claims
Parties to litigation or contemplating litigation must adhere to the Civil Procedure Rules 1998 (the CPR). Therefore, the provisions of the CPR are applicable, in particular the Pre-Action Protocol for Professional Negligence (professional negligence PAP).
The updated PAP for professional negligence came into effect in May 2018, on which date claims to be issued from then must comply with.
All the parties are encouraged to attempt to settle the professional negligence claim without issuing formal proceedings in court. The PAP sets out the framework to be followed and encourages an exchange of information and a set timetable, which both parties must comply with to encourage early settlement without the need for a costly court process.
When does the professional negligence Pre-Action Protocol apply?
It applies to negligence claims against legal professionals, accountants, financial advisers, auditors and certain other professionals. However, it doesn’t apply to claims against construction professionals, (e.g. architects, engineers and quantity surveyors) as the Pre-action Protocol for Construction and Engineering Disputes is applicable instead. Nor against healthcare professionals (see the PAP for the Resolution of Clinical Disputes) or in defamation cases (see the PAP for Defamation Claims).
Common Examples of Legal Negligence
Examples of common claims against solicitors, barristers, patent attorneys and licenced conveyancers include:
- Failing to provide correct legal advice: a claim can be brought if a lawyer has provided a negligent legal opinion, relied upon by a claimant, which has led to personal or financial loss.
- Failing to fully investigate or properly evidence the claim: solicitors and direct access barristers may be negligent in not gathering all pertinent information to ensure a claimant’s case is successful e.g. by not obtaining witness statements which supports the version of events.
- Failing to fully warn the client on the risks: for example a solicitor will be negligent if a specific risk warning that a tax avoidance scheme might fail.
- Missing a limitation date leading to a claim becoming time-barred: if the original claim had merit, then a claimant is entitled to pursue the errant solicitor or law firm for their loss of chance of success in the claim.
- Failing to comply with a court order or deadline: if your claim has been struck out or dismissed by the court, as was the case in Piepenbrock, after your solicitor or barrister breached an order of the Court (e.g. an unless order), then you may have a claim against the legal professional for poor performance of the litigation.
- Poor performance of instructions: failing to adequately investigate title to property when acting for the buyer of a property; failing to advise on burdens affecting a property e.g. restrictive covenants, adverse rights burdening the property, failing to register a mortgage/debenture at Companies House if acting for a buyer client company.
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Do you have a claim against a professional? If you want expert legal advice, do not delay in instructing us so we can assess the legal merit of your case.
We can often take on such claims on a no win no fee basis (such as a Conditional Fee Arrangement) once we have discussed the claim with you and then assessed and advised you on the merits of the proposed professional negligence action.
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