Solicitor negligence claims: when your injury claim was mishandled

When an injury claim is mishandled, the injured person can end up with nothing, or with much less than the claim was worth, through no fault of their own. The law gives a remedy: a claim against the solicitor's firm for professional negligence. This guide explains what counts as negligence, what you have to prove, who pays, how a complaint differs from a claim, the steps before court and the time limits in England and Wales, Scotland and Northern Ireland. We are an independent information service, not a law firm. If your claim was turned down by the other side rather than mishandled, see our guide to what to do if a claim is rejected.

What counts as solicitor negligence

Under section 49 of the Consumer Rights Act 2015, every contract to supply a service to a consumer is treated as including a term that the trader must perform the service with reasonable care and skill, and that includes a solicitor's firm acting for you. A claim does not succeed just because a case was lost or settled for less than you hoped: the question is whether the firm fell below that standard and whether that caused you a loss. As the UK Supreme Court put it in Perry v Raleys Solicitors, a claim in negligence requires proof that loss has been caused by the breach of duty.

In injury cases, mistakes that can lead to a claim include:

• Missing the limitation date. Most injury claims must be started within three years of the accident or the date of knowledge (section 11 of the Limitation Act 1980). The court may still let a late claim go ahead under section 33, but that is discretionary.
• Not serving the claim form in time. Under rule 7.5 of the Civil Procedure Rules, the step required to serve a claim form must be completed before 12.00 midnight on the calendar day four months after the date of issue.
• Letting the claim be struck out. A court may strike out a statement of case where there has been a failure to comply with a rule, practice direction or court order.
• Settling without advice on the full loss, for example leaving out future care or loss of earnings.

What you have to prove: the lost chance

A claim against your former solicitor is really two cases in one: whether the firm was negligent, and what the claim it mishandled would have achieved. In Perry v Raleys Solicitors (2019), which began as a claim for vibration white finger, the Supreme Court drew a clear line. To the extent that the outcome depends on what you would have done with competent advice, you must prove it on the balance of probabilities. To the extent it depends on what others would have done, such as the other side or the court, the court makes a loss of chance evaluation.

That second step is why these claims are not all or nothing. The Supreme Court gave the example of a lost claim with substantial but uncertain prospects of success, where it would be absurd to award nothing if the prospects were 49% but full damages if they were 51%. The court therefore assesses how good the lost claim really was. Your medical evidence, the evidence on liability and the documents from the original case all matter, so keep everything. If your original claim was for an industrial disease, our guide to vibration white finger claims shows the kind of evidence those claims need.

Who pays: insurance and closed firms

Firms authorised by the Solicitors Regulation Authority (SRA) must take out and maintain qualifying insurance under the SRA Indemnity Insurance Rules. The SRA says professional indemnity insurance covers the insured firm, and all its partners, members and employees, against claims of negligence or other civil liability arising from the firm's practice. Once you have made a claim, rule 9.2 of the SRA Indemnity Insurance Rules requires the firm to provide its insurance details when you ask.

If the firm has closed and no other firm is its successor, the SRA says the policy in place when it closed extends for a further six years, known as run-off cover, and you can ask the SRA for the insurance details using its disclosure form. If the SRA closed the firm down, it may hold your papers: it keeps client files for at least seven years from the date the matter was concluded.

The SRA Compensation Fund is a separate safety net. It covers financial loss resulting directly from the dishonesty of someone the SRA regulates, a failure to account for money, or civil liability that should have been covered by insurance where the insurance was not in place. You must usually apply within 12 months of when you first knew, or reasonably should have known, of your loss.

Complaint or claim?

You can complain about poor service without suing. Complain to the firm first: the Legal Ombudsman says the firm has up to eight weeks to respond. If you are still unhappy, the Legal Ombudsman in England and Wales generally looks at complaints brought within one year of the problem happening, or within one year of when you found out about it, and you need to bring the complaint within six months of the firm's final response.

Choose the route with care. The Legal Ombudsman says it is not its job to decide whether there has been negligence, because that is a decision only a court can make. It also says that if you accept an ombudsman's final decision on a complaint alleging negligence, that bars you from bringing a later negligence claim on the same issues. Where the lost injury claim was worth a significant sum, take advice about the court route before you accept a complaint outcome.

In Scotland, complaints about a solicitor's service go to the Scottish Legal Complaints Commission; for inadequate service the time limit is 3 years after the date you were last provided with a service in connection with the work. In Northern Ireland, a client complaint about the adequacy of a solicitor's professional service goes to the Law Society of Northern Ireland. Our guide on how to choose a solicitor covers complaints and changing firms.

The steps before court

In England and Wales, the Pre-Action Protocol for Professional Negligence applies to claims against professionals other than construction professionals and healthcare providers, so it covers solicitors. Under it:

• you are encouraged to send a short preliminary notice as soon as you decide there is a reasonable chance you will bring a claim;
• a detailed letter of claim follows once you decide there are grounds, including a clear chronological summary of the facts;
• the firm should acknowledge the letter of claim in writing within 21 days of receipt;
• it then has three months from the date of the acknowledgment to investigate and respond with a letter of response or a letter of settlement.

The protocol does not change the statutory time limits, and you must still start proceedings within them. The parties can agree a standstill agreement extending the period in which a limitation defence will not be pursued, or you can issue proceedings and ask the firm to agree to an immediate stay while the protocol is followed.

Time limits

A claim against a solicitor has its own time limit, separate from the injury claim that was lost. In England and Wales, claims in tort and in contract must generally be brought within six years from when the cause of action accrued (sections 2 and 5 of the Limitation Act 1980). For negligence, section 14A adds a second period of three years from the date you first had the knowledge needed to bring the claim, where that ends later, and section 14B sets a long stop: no negligence claim can be brought more than fifteen years after the negligent act or omission. Northern Ireland has the same scheme in articles 4, 6, 11 and 12 of the Limitation (Northern Ireland) Order 1989.

In Scotland, an obligation to pay damages is extinguished if no relevant claim is made within five years (section 6 of the Prescription and Limitation (Scotland) Act 1973). The five years run from when the loss occurred or, if you were not aware of the loss, its cause and who was responsible, and could not with reasonable diligence have been, from when you became aware (section 11). A 20-year long stop runs from the act or omission (sections 7 and 11(4)).

A later knowledge date may be disputed, so the safest plan is to act well before six years from the mistake, or five years in Scotland.

Frequently asked questions

Related guides: if your claim is rejected, how to choose a solicitor, choosing a solicitor checklist, personal injury time limits, no win, no fee explained and going to court.

Official sources used for this guide: Consumer Rights Act 2015, s.49; Perry v Raleys Solicitors [2019] UKSC 5; SRA: professional indemnity insurance guidelines; Legal Ombudsman: when to complain; Pre-Action Protocol for Professional Negligence; Limitation Act 1980, s.14A. This guide is general information about the law in the UK, not legal advice; the law can change, so check your own position with a regulated solicitor.