Professional Negligence Claims against Solicitors and Barristers
Have you been let down by your Solicitor or Barrister?
Has this resulted in a loss to you? If so, you may have a claim for Professional Negligence.
Claims against a Solicitor or Barrister can arise from a variety of practice areas and include:-
- Divorce, matrimonial, childcare and pension sharing cases;
- Personal injury and accident claims;
- Medical negligence claims;
- Property sales and purchases;
- Commercial and civil disputes;
- Drafting wills or administering estates and trusts
A claim for professional negligence may also arise if your solicitor failed to give full advice, at the outset, about the costs that would be likely to be incurred in any matter.
Where a solicitor is acting for you under a “no win - no fee” agreement, it is important that he or she ensures that you are properly advised or protected against any liability for expenses such as your Court, barrister’s or expert fees and liability for your opponent’s costs should your claim fail. Your solicitor should arrange insurance against these risks where possible. We have handled a number of claims against solicitors who have negligently failed to advise or protect their client in respect of these potentially significant costs.
If you have been unfortunate enough to have received negligent advice from a solicitor or barrister you may have the right to make a claim for compensation.
Claims Arising from Negligent Conveyancing Transactions
People often buy property in joint names. They may contribute unequally to the purchase price. We are finding that many conveyancing solicitors are failing to give adequate advice to protect co-owners of property who do not contribute equally to the purchase price and/or who do not wish their interest in the property to pass to their fellow co-owner in the event of death.
Joint purchasers of properties should be advised that there are two ways in which title to a jointly owned property can be held. These are:-
Joint Tenants
If you own a property as a joint tenant, you and your fellow joint tenant will own the whole of the property together. You will not have a specific share in the property and you will not be able to leave a share of the property in your Will. If you sell the property, or if you separate from your fellow joint tenant, it will be assumed that you own the property equally, regardless of your respective contributions to the purchase price and you will both be entitled to 50% of the sale proceeds of the property. If either of you die your share will pass automatically to the other.
You may not wish to own the property as Joint Tenants if:-
- One person has made a larger contribution to the purchase price of the property, you may want this to be recognised if the property is sold or if you separate.
- You wish to leave your share in the property to someone other than your co-owner on death.
Tenants in Common
Tenants in Common will each have a specified share in the property. The shares may be equal, but they do not have to be. Respective shares in the property are set out in a Declaration of Trust (see below).
Your share of the property can be passed on to another person, either during your lifetime or under your Will. If you do not have a Will at the time of your death then your share will pass in accordance with the rules of intestacy.
What is a Declaration of Trust?
A Declaration of Trust is a document that formally records the share that each of the co-owners have in the property. If you sell the property, or if you separate from your fellow tenant in common, the Declaration of Trust will determine each party’s interest in the property.
When should a property be held as Tenants in Common?
Holding property as tenants in common may be appropriate if you have children from a previous relationship and you want them to inherit your share when you die, rather than your co-owner. It may also be appropriate if you have made unequal contributions to the purchase price of the property.
Solicitors are under a duty to act with the skill and care to be expected of reasonably competent solicitors. The Law Society has provided clear advice as to what is expected when a solicitor is acting for co-purchasers. The main points are:
- When acting for co-purchasers, it is essential to clarify their intentions as to the method by which they hold property;
- The methods of co-ownership must be explained to the clients in language appropriate to their level of understanding;
- The clients should be advised as to the most appropriate method of co-ownership according to their particular situation;
- A separate trust deed should be completed to express the clients’ wishes;
- Instructions should be obtained from both/all co-purchasers;
- Where the co-purchasers are not married nor in a civil partnership it may be necessary to advise each party independently about their rights in the property. It is important to be alert to the possibility of conflict
The Law Society has made it clear that where:
- The couple are unmarried;
- They are contributing in unequal shares; and
- There are children from a previous relationship
The most appropriate method of co-ownership is as tenants in common.
Unfortunately, it is often the case that inadequate advice is given by a solicitor and purchasers become Joint Tenants without being advised of the consequences.
If you have been affected by the negligent advice of a conveyancer, please contact us as you may have a claim for professional negligence.
