TAKING A SOLICITOR TO COURT Help

sc123_2

Does anyone have any experience of suing a solicitor.

Four years ago I used a firm of solicitors to sort out the contact order for my children with my ex husband and they also touched on the subject of the ex matrimonial home and started looking into the financial issues. As this time I was living with my partner (now husband) and was told that because I was living with my partner I could not claim legal aid. Just as correspondence regarding the financial side of my divorce was starting, I was told by the firm of solicitors I was using that I would have to find someone else as the firm was splitting up and could no longer act for me. This happenend in December 2002. In January 2003 I found a new firm of solicitors and was horrified to learn that because I re-married in December 2002, without signing the paperwork that was needed for me to make a financial claim under matrimonial law, I would have to now make a claim on the house under civil law with a TOLATA claim which would cost me a lot more money. At no time did the first firm of solicitors say to me that I must sign this form before I remarried but were quick enough to tell me I wouldn't get legal aid. At no time did they say that I must inform them if I was to remarry.

The claim has now been sorted out at a cost of £8000+.

I am going to sue the first firm of solicitors for not advising me correctly but I have no idea of how to work out how much I should claim for. I don't want to go back to my current solicitor as I want to keep costs to a minimum. I was thinking of claiming through the small claims court. Does anyone know how I can put a figure on my claim. Their mistake caused me a great deal of stress and cost me a lot of money and I feel they should compensate me in some way.

payless

http://www.lawsociety.org.uk/choosingandusing/redressscheme.law

would be a good place to look , BUT ONLY IF you have exhausted the firm's own complaints procedure

CGG

Hi sc123
Take a quick look at your House Insurance policy. You could be covered for Legal expenses on it.
If it mentions legal expenses cover, contact them for a claim form. They will then assess the information you supply and make a decision whether they will take the case on for you - I have a close relative who has a claim for Professional Negligence going through at the moment against a former Solicitor.
At regular intervals the claim gets re-assessed and if there is a 51% chance
(in their opinion) that you will be successful with the claim, they will continue with that claim on your behalf.
Good Luck!

Bossyboots

Have you made a complaint through the Law Society? A successful complaint there will give you grounding for compensation as they are better placed to judge negligence than the court. The issue seems to be whether or not they should have advised you not to get married or, at the very least, to make your application for ancillary relief before you did so. That should be standard practice for any matrimonial solicitor so it does look like you have some recourse but I am not convinced from what you have said that your best course of action right now is to set about suing them.

How are you going to prove what you have lost? You don't actually know that it has cost you more money to pursue a TOLA claim than as a matrimonial claim. £8000 is not an uncommon figure for matrimonial financial work. You will only be able to claim for your losses and you will need to know what they are.

You can be awarded compensation by complaining through the Law Society if your complaint is upheld and there is a sufficiently high compensatory award available for your position. Remember, you would have paid a considerable amount of money anyway. You have not actually lost £8000.

Did your ex fight you in relation to the property. Can you prove he would not have done so even under the matrimonial claim? These are all things you need to consider before issuing proceedings.

I would suggest your best angle from here is to get all your paperwork together (or write up a sequence of events) and obtain legal advice on your position so that you make sure you do not throw good money after bad by acting hastily.

Also, if the partnership broke up there may be difficulties finding them in any event. Do you know who you actually need to sue?

Sorry for firing questions at you. I am just typing issues as soon as they come to mind to help you consider what you need to gather as your evidence.

sc123_2

Thanks for your replies.

I am going to make a complain to the law society first as that is what my current solicitor has told me to do. I do not want my current solicitor to act for me on this as I don't have money to throw away on yet more legal expenses.

My previous solicitor mentioned nothing about ancillary relief or the fact that I need to complete any paperwork before remarrying. My current solicitor has contacted the old one stating I would be putting in a claim and they have defended it by saying I did not tell them I was getting married. I have no legal experience which is why I used a solicitor, how was I to know the implications of remarrying if they didn't tell me. If I had that kind of knowledge I wouldn't have needed to use a solicitor.

I have no idea how much I have lost, which is my problem. I do know that issuing a TOLATA claim cost £500 and that under matrimonial law it would have cost about £80 to raise the necessary paperwork.

As soon as my ex and his solicitor found out about the "mistake" they were laughing. My ex fought me all the way I had at least 3 court hearings each time with a barrister. In the end it was settled out of court with an offer that I had put forward at the beginning of the proceedings. I had to fight for a 50% share, which I would have been entitled to at least that under matrimonial law.

Thanks very much for the advice.

Andy_Davies

To play devils advocate here for a moment...

Why should they compensate you, and was the mistake their fault, or just down to the way events happened at the time?

I understand you may have spent more time and money than you expected to sort out the financial/house situation, but did you mention the intention to get married to the solicitors and if you didn't, how would they know?

Bossyboots

Working backwards

Andy - I think it is fair to say that a solicitor dealing with matrimonial law should have enough knowledge to discuss with the client the ramifications of getting married before the proceedings are concluded whether the client raises the issue of having another partner already or not.

sc123 - You would not necessarily have been entitled to 50% of the matrimonial home. That is merely a starting point called the "presumption of equality". This is then balanced against, for example, whether one party put in a large deposit. The length of the marriage is also taken into account. It may be a toothless argument therefore to say you would have been entitled to 50% and indeed, I suspect you would have had this battle anyway. You might struggle to prove you were in a worse position because of this.

If you had put forward an offer that was rejected, have you been awarded your costs incurred from the date of the offer until the court order? I know the new rule is to prevent couples from claiming costs from each other but I don't think it applies to standing cases and also you may have a case that it was the unreasonableness of your ex that caused the costs to accrue.

I am beginning to fear that your only actual provable loss is going to be a higher court issue fee and higher preparation fee for the original application.

At the start, after your first appointment with your original solicitor, did you receive a client care letter setting out their terms of business and confirming what you had discussed and the advice given to you?

sc123_2

Andy - No I didn't mention to them that I was about to re-marry although my ex husbands solicitor did in a letter to them (2 months prior to my remarriage) and they did know that I was living with someone as my partner came to several meetings with me at the solicitors.

Bossyboots - There was a verbal agreement between myself and my ex husbands solicitor that everything would be split 50/50. As soon as my ex's solicitor found out that i had not signed the ancillary relief form this was withdrawn. I had personnel possessions at the ex marimonial home, which I have never received and in order to get them would have to "go to court". I have had no split of any furniture etc. because to get this I would have to "go to court". All of these would have to be done as a separate claim.



I was awarded costs, but my ex proposed an IVA (his business was failing) just as the case ended so I am now a creditor and will be lucky to get anything.

I originally contacted the solicitor to sort out the contact order for the children so the care letter focuses on this. Although I think it does say, or a least a letter from them says, that financial issues would also need to be sorted out. I wanted to focus on one thing first. The contact order took priority.

To be honest compensation of anything would make me happy. People like me use a solicitor, not because they want to but because they need to. I feel that through them not advising me of something cost me, say at least £1000, and more if I decide to try and claim for my personnel possessions and a share of the contents. Which by the way I am not going to bother to do.


Also didnt mention before that correspondence had already started between my previous solicitor and my ex's solicitor regarding the financial side. This was about 2-3 months before my remarriage. They did not say anything about informing them if I intended to remarry. And it was a legal executive that I was dealing with who was reporting to the solicitor that I originally saw when I first contacted the first of solicitors.

Mrs_Optimist

GO through the Law Society Complaints system, even if the first firm are no longer trading, they would have had in place Indemnity Insuurance at the time that they were acting for you. The law Society are usually very thorough, but if you are still not hapy with the outcome, check your own insurance plices, credit cards etc to see if you have Legal Expense Insrurance cover to pay your legal costs.

Incidentally a Legal Executive cannot call themselves a Legal Executive unless that have sat several exams and qualified. Therefore they should have adequate legal training to act for you.

Bossyboots

sc123 I almost thought you had lost it half way though with your talk about the children but you brought it back together. The key issue here is that the correspondence between the solicitors in relation to financial matters had started. You should have been told of the consequences of remarrying when that correspondence started. Whether it was negligent not to do so or just poor service is an issue the Law Society can look at. You are right that it is not something you would ordinarily be expected to know and that may push it into a negligence area. You would not need to be told for instance that you cannot do damage to your partner's property. Anyone's common sense and general knowledge should mean they know that. The intracacies of divorce law are not common sense and general knowledge and I think you have a case to argue that this is a point you should have been told without needing any prompt from anyone because it is something you simply should not have been expected to know. The fact that your solicitors were put in knowledge of your proposed remarriage strengthens your case if you can prove it.

Also, you should have had a fresh client letter for the financial matters together with an estimate of costs and confirmation of your instructions and their advice. If you are going to the Law Society, please draw this to their attention.

The only other thing is that I think it unlikely you can rely on what you perceived to be a verbal agreement between your ex's solicitor and yourself as to the split. That was not his decision to make and his client can change his mind at any time. It would be a foolhardy solicitor indeed that gave you that reassurance, I suspect it was merely a platitude. The only binding agreement in this scenario is a written and signed one although if you are promised something in writing in the proceedings which is then withdrawn, you can bring into question why that was but the spoken word of your opponent's solicitor is a very insecure ground on which to base your claim. It is entirely possible and likely, that your ex would still have fought you on the property. I do think however you have a genuine grievance in relation to your items left at the property which you presumably cannot now afford to sue for. I think you should include those as a loss in your claim.

Hope that helps. I am trying to put the position as I see it from what you have said, but only someone seeing all the paperwork can give you the full and proper legal position but I hope you get some joy from the Law Society.

sc123_2

Thank you all for your replies.

Bossyboots - I am going to get all my paperwork together and go through the Law Society first. Hopefully it will stop there. I do have copies of paperwork from my ex's solicitor, sent to my solicitor stating that I was shortly to remarry, so I feel I do have some kind of proof.

I did not have a separate client letter once financial issues had started so will draw this to the law society's attention.

Your advice has been really useful and I really appreciate it.

Many thanks