A solicitor must exercise the ordinary care and skill of a practitioner. This standard was established in the case of Hunter v Hanley 1955 SC 200. Hunter v Hanley is a case of medical negligence but the test set out at p206 of the judgment applies equally to all professional persons including solicitors: -
“To establish liability by a doctor where deviation from normal practice is alleged, three facts require to be established. First of all it must be proved that there is a usual and normal practice; secondly it must be proved that the defender has not adopted that practice; and thirdly (and this is of crucial importance) it must be established that the course the doctor adopted is one which no professional man of ordinary skill would have taken if he had been acting with ordinary care.”
Thus to establish the professional negligence of a solicitor or any other professional the claimant must prove the following:-
(i) What the usual and normal practice is;
(ii) That the professional has not followed this practice and;
(iii) That the solicitor has followed a course of action (or inaction) which no professional of ordinary skill would have followed.
In the case of Tiffin Hldg Ltd v Millican the solicitor’s duty of care has been expressed as a number of generalised obligations said to be owed to the client:-
“The obligations of the lawyer are: (1) to be skilful and careful; (2) to advice the clients of all matters relevant to the retainer so far as may be reasonably necessary; (3)to protect the interests of the client; (4) to consult with the client on all questions of doubt which do not fall within his express or implied discretion and (6) to keep his client informed.”
Duty to conduct Litigation diligently
A solicitor’s judgement is not expected to be beyond reproach but he cannot elide liability for non-observance or ignorance of the rules of court. In Godefroy v Dalton it was held that,
“It would be extremely difficult to define the exact limit by which the skill and diligence which an attorney undertakes to furnish in the conduct of a cause is bounded; or to trace precisely the dividing line between that reasonable skill and diligence which appears to satisfy his undertaking, and that crassa negligentia, or lata culpa mentioned in some of the cases, for which he is undoubtedly responsible.
The cases… appear to establish, in general, that he is liable for the consequences of ignorance or non-observance of the rules of practice of this court; for the want of care in the preparation of the cause for trial; or of attendance thereon with his witnesses: and for the mismanagement so much of the conduct of a cause as is usually and ordinarily allotted to his department of the profession. Whilst on the other hand, he is not answerable for error in judgment upon points of new occurrence, or of nice or doubtful construction, or of such as are usually intrusted to men in the higher branch of the profession of the law.”
The Duty to lodge a court claim on time
Where a solicitor is instructed in an action and he fails to raise that action within the relevant time limit then it is very likely he will be negligent.
Once an action is under way the solicitor must prosecute the action with reasonable diligence. In Scotland it is rare but not unknown for an action to be dismissed for want of prosecution however if that delay is down to inaction or inattention of the solicitor a finding of negligence is likely.
Duty to give the correct advice on the law
One of Solicitors principal functions is to advise on the law. If a solicitor gives erroneous advice on a point of law where the law is not in dispute, or is well established or not in doubt then he will be liable in negligence.
Where advice is given where the law is uncertain, the facts partial or the law is difficult then as long as the advice or opinion given is reasonable then no negligence arises where that advice was wrong.
Conveyancing
Where a solicitor fails to conduct the usual and necessary property searches in conveyancing then he will be negligent. Similarly, where a solicitor instructs searches but fails to report upon those searches he will be negligent.
Wills
A solicitor should take care to explain the terms of and implications of a will to his client. Where a will fails to reflect the client’s instructions the solicitor may be liable to the disappointed beneficiary.
Duty to explain documents
Clients expect and rely upon their solicitor to explain legal documents such as leases and wills. Unusual or onerous provisions in a document should normally be brought to the client’s attention and explained. This duty may not extend to experienced business clients and there is a limit on the solicitors duty to explain especially where the document is in standard terms or in common use.
If you believe you may have a claim arising from professional negligence please contact us by telephone on 0141 332 0913 or by e-mail to arrange a free initial consultation.