Solicitors Mistake - options ?

Sandtree

Have the conversation with the solicitor first and see what they propose, its much better than trying to second guess everything.

In principle if it were fully their fault then you'd expect them to cover the cost of correcting their mistake and any actual financial loss the delay causes (depending on what the matter is that could be nothing or substantial). You'd be much harder pressed to try and get a full refund let alone that and compensation.

Obviously the reality is that you did see the forms, again without understanding the underlying matter if I saw something mentioning a married woman by her maiden name and the field didnt explicitly mention that is what it was for I would have raised the question and so whilst the majority of the blame is likely to be with the solicitors I'd struggle to support the idea that its purely their fault. 

At the end of the day solicitors know the law and are fairly good at it, its one of the reasons why after paying solicitors thousands to draft contracts you are always told to read it for yourself or if asking legal opinion on something you almost never get a straight single answer. 

metal675

metal675 said:

williamgriffin said:

So you knew about the error when they sent to forms for checking?

There were 2 documents which I had seen at different times but prepared by my solicitor. I was not aware both are to be sent to the court together (I am not legal expert, my solicitor is) and certainly did not notice the difference in names on the two documents.

It would not be reasonable to expect the OP to be aware of different contents in documents presented to them at different times, or at least to expect them to understand the significance.

Thank you. That is exactly my feeling. I was not aware that it would be significant and moreoever I did not notice/ recollect at a later date. It is not incorrect spelling as the other poster implies, but at one point it was maiden name and in another place a marital name.

metal675

Sandtree said:

Have the conversation with the solicitor first and see what they propose, its much better than trying to second guess everything.

In principle if it were fully their fault then you'd expect them to cover the cost of correcting their mistake and any actual financial loss the delay causes (depending on what the matter is that could be nothing or substantial). You'd be much harder pressed to try and get a full refund let alone that and compensation.

Obviously the reality is that you did see the forms, again without understanding the underlying matter if I saw something mentioning a married woman by her maiden name and the field didnt explicitly mention that is what it was for I would have raised the question and so whilst the majority of the blame is likely to be with the solicitors I'd struggle to support the idea that its purely their fault. 

At the end of the day solicitors know the law and are fairly good at it, its one of the reasons why after paying solicitors thousands to draft contracts you are always told to read it for yourself or if asking legal opinion on something you almost never get a straight single answer. 

Thank you to you and everyone else who have taken time out to provide assistance.

I will have the conversation with them and push for fixing the mistake free of cost and compensation for the delay.

metal675

Just to add, the solicitors terms mention -

Any complaint which raises an allegation of professional negligence will give rise to a conflict of interest immediately and we will have to cease acting forthwith. Such claims are outside the remit of the Complaints Procedure and that of the Legal Ombudsman except insofar as it may concern an issue of service.

So I believe they will stop acting for me when I raise the complaint.

Manxman_in_exile

Although you have the option of making a formal complaint, I'm not sure that others are suggesting you take that step now?

Rather the suggestion is that you have "a converstation" with your solicitor at this stage.  I presume they must already be aware of the error if the court threw the application out.  Simply ask them what they propose to do to rectify the error at no cost to you (eg extra application fees etc).  If you can also show that the inevitable delay causes you any financial loss, ask about that too.  If you talk to them reasonably and non-confrontationally they may even offer an ex gratia goodwill payment (albeit a small one) even if you've suffered no additional loss.  By all means be assertive and polite in asking them how they propose to put this mistake right, but if you do it aggressively or in a confrontational way, they are likely to go into defence mode.  Whatever they offer to do to put it right, ask them to confirm it in writing.

The time to make a formal complaint is if they won't rectify this error

Also, when they send you papers to check or for your approval, read them carefully and ask yourself (for example) does it sound right that they should be referring to the same person under two different names.  You may not know the law or legal procedure, but there will be some things about your case where errors will be more obvious to you than to your solicitor.  If something doesn't make sense to you query it and keep a record of your query and their response.

Sandtree

Manxman_in_exile said:

Also, when they send you papers to check or for your approval, read them carefully and ask yourself (for example) does it sound right that they should be referring to the same person under two different names.  You may not know the law or legal procedure, but there will be some things about your case where errors will be more obvious to you than to your solicitor.  If something doesn't make sense to you query it and keep a record of your query and their response.

The OP did say the papers were sent at different times and therefore it wasnt a side by side comparison which may have made it more obvious questionable however I would personally still say that any reference to a person by a former name (be it maiden name or otherwise) would be questionable unless its clear as to why.

metal675 said:

Thank you to you and everyone else who have taken time out to provide assistance.

I will have the conversation with them and push for fixing the mistake free of cost and compensation for the delay.

Have the conversation about the error first, before raising a formal complaint. Compensation can wait until the matter is resolved in full but remember its only for actual losses not just generic "inconvenience". 

metal675

Thank you all for your help.
So I did have a conversation with the solicitor and my primary focus has been to correct the mistake and cut down on delays that occured due to the mistake.
The solicitor insists the court is at fault and not them.

The court has asked to make a fresh application as I indicated in my original post. The court had asked to confirm the correct name of the other party.  Now the solicitor sent me the new application for review where in they have indicated the court to update the name from X (matrimonial name) to Y (maiden name)

I have asked them to amend this to say the correct name is X (matrimonial name) and the name as Y on the earlier application was in error and should be disregarded.
The solicitor does not seem to be keen to do this as this shows they were at fault, but I need the name to be X rather than Y as that is the official name.
They are not following my instruction and have simply said if I want to make application then to just agree to what they have proposed.

My understanding is that a solicitor has to follow clients instructions. Is this correct?
What options do I have please given that what they are proposing is not what I want to do.

davidmcn

metal675 said:

My understanding is that a solicitor has to follow clients instructions. Is this correct?

They're not to do things which are contrary to your instructions, but that doesn't mean they have to accept your instructions at all. And they also owe duties to the court, which might be relevant here.