Claim against solicitors fails for being out of time

If you want to know how to sue a solicitor for negligence, it is very important to remember that there are time limits for bringing a claim against a solicitor who has made a mistake, as highlighted by a recent case decided by the Court of Appeal.

What is the time limit for suing a solicitor?

The usual rule is that you have six years from the date the solicitor was negligent, to start a claim for damages against them. In a lot of cases, clients will realise that their solicitor has made a mistake straight away, but in some cases, it may be many years later that the problems come to light. 

If the six year period has already passed, you may still be able to sue your solicitor for negligence, thanks to section 14A of the Limitation Act 1980. Section 14A confirms that even if the six year primary limitation period has expired, a claimant has a further three years to start a claim, running from the date they found out about the negligence. This is known as the "date of knowledge". 

The three years from the date of knowledge starts running when the claimant found out that they had suffered damage as a result of the negligence of their former solicitor. They have to know that the damage was sufficiently serious, which is usually easy to prove, and that the solicitors' negligence has caused them loss. 

There are two types of knowledge, actual or constructive, which have been the subject of a recent case heard by the Court of Appeal (Kay v Martineau Johnson) where a claim failed as it was considered to have been brought out of time. 

It is important to note that there is also a 15 year long-stop date, which means that any negligence which happened more than 15 years previously, can no longer be sued upon. 

Solicitors Negligence in divorce proceedings

The case recently heard by the Court of Appeal was Ellen Kay v Martineau Johnson. Ms Kay had instructed Martineau Johnson to deal with divorce proceedings in 2008. They advised her to enter into a clean break financial settlement with her former husband. 

Very soon after the settlement was concluded, Ms Kay became suspicious that her husband has not been honest about his financial position during the financial negotiations. She made enquiries with Martineau Johnson, who told her that the settlement could not be revisited. 

Around ten years later, in 2018, Ms Kay became concerned again, as her former partner's lavish lifestyle suggested that he had indeed hidden assets during their divorce proceedings. Ms Kay obtained her file from Martineau Johnson and then two years later, in 2020, instructed a barrister to advise whether she was able to reopen the settlement. The barrister confirmed that she couldn't reopen the settlement (as Martineau Johnson had advised her to enter into a clean break arrangement rather than a nominal spousal maintenance order), but told her that she could possibly bring a claim for professional negligence against Martineau Johnson. 

Ms Kay started a claim for professional negligence against Martineau Johnson in March 2023. Ms Kay alleged that Martineau Johnson had been negligent as they failed to investigate her ex husband's finances properly and they should have advised her to enter into a different type of divorce settlement, which could have be reopened at a later date. She also alleged that she only became aware of their negligence in 2020, after taking legal advice. She said that she could not afford to take legal advice before this date.

Martineau Johnson defended the claim on the basis that it was out of time. 

The Court of Appeal agreed with Martineau Johnson that Ms Kay had brought her claim out of time. Two of the judges found that she had sufficient knowledge of the negligence in 2009 and the other found that she had sufficient knowledge by 2018. Either way her claim was deemed to have been brought out of time and was not permitted to go any further. 

The Court of Appeal also confirmed that not having sufficient funds to obtain legal advice was not a good enough reason to bring a claim out of time. Ms Kay was receiving legal help from her new partner (a solicitor) and could not produce any evidence that she had sought help from any solicitors to help her under the terms of a conditional (no win no fee) agreement.  

How do I sue my solicitor for negligence?

If you have discovered that your solicitor has made a mistake, and you want to bring a claim against a solicitor for professional negligence, it is important to take legal advice quickly, particularly if you instructed the solicitor some time ago. 

Even if you are within the six year time limit for starting a claim for professional negligence against a solicitor, you should still take legal advice quickly, as there is a protocol procedure which needs to be followed before a claim can start in court, and that takes many months to complete. 

The first step in bringing a claim for professional negligence against your previous lawyer, is therefore to speak to an expert solicitor who deals with this type of claim. They will probably advise you to obtain your file from your previous solicitors, if you have not done so already, and they will be able to advise you if you are close to the end of the limitation period. 

If you are close to the end of the limitation period for suing your solicitor, you can enter into a standstill agreement with them in some cases, to stop the time running while you examine their files, take legal advice, and go through the protocol procedure. 

How to fund a claim for professional negligence against a solicitor?

The warnings from the case of Kay v Martineau Johnson are very clear - the court will not turn a blind eye to a claim being brought out of time, simply because a client cannot afford to sue their previous solicitors. It is therefore important to investigate whether there are any alternative sources of funding a legal claim available to you, for example:

• legal expenses insurance - you may have the benefit of legal expenses insurance or family legal cover, to help with the cost of suing your previous solicitor for negligence;
• conditional (no win no fee) agreement - if you have a strong claim, you may be able to enter into a conditional (no win no fee) arrangement with a new firm of solicitors to help you sue your previous lawyers without having to pay legal fees along the way. It is important to note in these types of arrangement you usually have to pay a success fee when you win, which is deducted from your damages; or
• pro bono or deferred fees - you may be able to instruct new lawyers on a pro bono or deferred fee basis, where they agree to wait to be paid until the end of the case. 

Samuels Solicitors LLP has a long track record going back decades, of helping clients sue solicitors who have made a mistake. We are able to help many clients on a conditional (no win no fee) basis, to recover compensation and legal costs. 

If you want to bring a claim against solicitor for professional negligence, we will be able to help you. Contact us today to speak to one of our expert lawyers about your case, how you can fund it, and the compensation you can expect to receive.