Chapter 9

Lawyers’ Negligence

 

Introduction

9.01
This chapter deals with a lawyer’s duty of skill and care, and with the principles of compensation which apply when clients suffer loss as a result of a lawyer’s breach of this duty in contract or tort.

9.02
The source of a lawyer’s duties to his clients is the retainer (or contract of engagement), by which he agrees to provide services for payment. The scope of the duty in tort is generally the same as in contract, and there is an overlap with remedies provided by the Legal Ombudsman.

9.03
This chapter proceeds through the three stages involved in any negligence claim:

  • What was the lawyer instructed to do?
  • Was the lawyer’s work carried out with the necessary skill and care?
  • If losses have arisen are they to be compensated?

Consideration is then given to limitation defences and the basic procedure involved in negligence proceedings. Particular negligence risks are dealt with arising from the practice areas of litigation, conveyancing and wills and probate. Finally, further risk information is drawn from statistics derived from the Legal Ombudsman.

9.04
A sound grasp of the relevant principles is essential in order to manage the risk of claims for negligence and complaints to the Ombudsman. Although the facts of many cases make it clear that a duty has both existed and been breached, the law in this area is capable of producing surprising results.