Sugar coating advice is tantamount to negligence

Cases go to trial every day, and there is always a winner and a loser. Usually the loser just has to pay the winner's costs, but what happens when the loser's solicitor has failed to tell them that their case was bound to fail?

Solicitors' duty to advise honestly 

In 2001, a firm of solicitors and a barrister told a client that her clinical negligence claim against the NHS was unlikely to be successful and that she should not bring a claim. The client was unhappy with the advice she received and brought a negligence claim against her solicitor and the barrister who had given her that advice.

At trial, the judge decided that the advice given by the solicitor and the barrister was correct.

However, the client appealed that decision, and the case went to the Court of Appeal. Last week the Court of Appeal gave its decision about whether the solicitor and barrister had been negligent.

The Court of Appeal agreed with the judge who had made the original decision. Lord Justice Jackson said that where a client has a weak case, the solicitor and barrister had a duty to tell them so. Jackson stated: "it is no kindness to the client to soften the advice or to encourage them to press on anyway".

Jan Samuel, senior partner at Samuels Solicitors, and a professional negligence expert, believes the Court of Appeal made the right decision. He said: "It seems obvious that solicitors have a duty to tell clients when their case is weak. What is interesting about this case, is that if a solicitor fails to advise a client that their case is weak, and that client goes on to incur costs pursuing a hopeless claim, that solicitor could be sued for negligence."

Clients who are not told that they have a weak case, could bring a claim against their solicitor and barrister, for the losses they have suffered as a result of their negligence. These losses could be considerable, particularly where a losing party has had to pay their opponent's costs.

Did your solicitor fail to tell you your case was weak?

At Samuels Solicitors, we are experts in advising clients who have been badly advised by their solicitors, with professional negligence claims having been our niche specialism for many years. If your case is very strong, it is possible that we might be able to act for you under the terms of a conditional fee agreement.  

If you have lost a case, and if your solicitor failed to advise that your case was weak, we may be able to assist.

Contact us today for a free initial appraisal of your case.