Poorly Advised to Commence Private Prosecution?

The Professional Negligence Lawyers Association (“PNLA”) have been told that there will be surge in actions brought against solicitors in 2020, where their conduct has caused a collapse of a prosecution and/or adverse costs order.

Whilst private prosecutions offer an excellent legal remedy, they are subject to far greater scrutiny than a public prosecution. Therefore, it is of vital importance that solicitors who take on these cases take care and ensure that they have full and frank discussions with their potential clients about the prospect of success prior to the commencement of a private prosecution.

Was my solicitor professionally negligent?

What you will need to prove in order to establish that you were negligently advised to commence private prosecution:

1. There was a duty of care owed by your solicitor;
2. That duty was breached; and
3. That breach caused you loss.

Professional negligence is the failure to act with the duty of care expected by a reasonable professional of that profession. This duty may arise via a contractual agreement or by common law tort.

Assessing the evidence and the right course of action

It is the role of private prosecution solicitors to assess the evidence in a case before deciding the most appropriate course of action i.e. criminal proceedings, civil proceedings or both.

When commencing a private prosecution you will be required to lay all of the information before a magistrates court therefore it is important all of the evidence is in order and you have been advised on the merits based on the same.

To establish whether or not there was a breach of the aforementioned duty, private prosecutors should satisfy the same code as Crown Prosecutors, the Full Code Test. This comprises of two stages:

1. The evidential stage: is there sufficient evidence against the defendant; and
2. The public interest stage.

Evidential Stage

A solicitor should advise their prospective client whether there is enough evidence to charge and if this evidence is reliable and credible so it can be used in court. Solicitors should endeavour to adhere to the same standard as Crown Prosecutors who must be satisfied that there is enough evidence to provide a ‘realistic prospect of conviction’ against the defendant(s).

Public Interest Stage

The second limb of the Full Code Test is whether there is a public interest in the matter. If the public interest factors in favour of prosecution outweigh those that tend against it, this stage will be satisfied. This limb is typically only considered after the first is satisfied.

If the above have not been met, due to some error or omission by your solicitors or if the above has not been properly explained to you, then there may be grounds for a professional negligence claim to be brought against your former solicitors. Finally, in reference to the third criterion, if it can be shown that due to your solicitor’s conduct your prosecution collapsed or an adverse costs order was made, then this may be a quantifiable loss. This would form the basis of your legal claim against your solicitor.

How can I commence my Professional Negligence Claim?

In order to commence your claim before a Court in England & Wales you must first issue a County Court or High Court claim form which is to be accompanied by your Particulars of Claim which set out the details of your claim and the remedy which you are seeking.

There are strict time constraints on bring a professional negligence claim known as limitation periods therefore it is of the utmost importance that you issue the Claim form within time and pay the relevant court fee.

In all claims of this nature, the Civil Procedure Rules must be adhered to, the process for which can be read here.   

How much compensation will I get if my professional negligence claim succeeds?

Damages are awarded in this instance to put the claimant back in the position they would have been of the breach had not occurred. These are calculated generally from the date of the breach and must have been reasonably foreseeable.

Ordinarily professionals will have professional indemnity insurance which ensures that any compensation which is due can be satisfied. Solicitors are required to have professional indemnity insurance by the Law Society; therefore if your claim for professional negligence is a success your compensation claim will be satisfied.

What can we do for you?    

We can consider your case and will not proceed with a claim unless it is meritorious. If you have been unsuccessful in private prosecution and have been lumbered with costs, this may amount to six figure sums. Whilst you may be very unhappy with the judgment of the court it is not to say you will be successful in bringing a professional negligence claim against your previous solicitors.

If your claim has merit we can:

• File the relevant claim form,
• Draft and file the Particulars of Claim,
• Comply with all pre-action protocol on your behalf; and
• Communicate with the Court and the other side throughout.

Following the private prosecution brought against Boris Johnson by Marcus Ball, there has been a surge in similar proceedings brought by individuals.

‘In [our] chambers it has been about a 3,000% increase in enquiries from serious causes wanting advice in prosecutions. The risk of that is that people are running before they are walking, which is where professional negligence lawyers come in.’

Colin Witcher, Church Court Chambers

Due to this surge, many law firms will claim to be experts in these matters and will give unrealistic expectations for success. If you feel that you were given unrealistic expectations in a private prosecution which collapsed or have received an adverse costs order, then we may be able to help.

Instruct Specialist Professional Negligence Solicitors

We are a specialist City of London law firm made up of Solicitors & Barristers operating from the only law firm based in the Middle Temple Inn of Court adjacent to the Royal Courts of Justice. Our team have expertise in advising on claims for compensation against professionals that have fallen below the standard expected, which causes clients financial or personal loss.

We are experienced in bringing successful claims against negligent solicitors, barristers, financial advisers, surveyors, valuers, architects, tax advisers and IFAs.