Italy: The Elements Of A Professional Negligence Claim

CASE STUDY: the "Plebgate"scandal – Andrew Mitchell v News Group Newspaper Ltd. (The Sun)

Claims are fairly simple to establish and can be categorized as a breach of contract or a tortuous breach. Contractual breach is fairly self-explanatory: there was a clause in the contract which one party to the contract breached. The remedies are variable depending on the clause or clauses breached. A tortuous breach usually involves negligence and three core elements:

  1. there was a duty of care owed;
  2. the duty was breached; and
  3. a loss was caused to the injured party as a result of the breach.

The Andrew Mitchell defamation case is a recent example where professional negligence could potentially be argued. The court had given directions for certain deadlines to be met. Directions can be anything from a deadline by which time the parties must disclose relevant documents, to a deadline ordering the respective parties to file and serve witness statements. In this case, a direction was given as to when a costs budget should be filed with the court. This is particularly poignant following this year's Jackson reforms. Andrew Mitchell's solicitors failed to file this document by a given date. The result was that the Court made an order capping Mr Mitchell's right to recover his legal costs (amounted to roughly £2,000).

We can identify the elements for proving a case of professional negligence against Mr Mitchell's solicitors as follows:

  1. DUTY: Mr Mitchell's solicitors owe a duty of care to their client. The duty of the "reasonable man". In the case of a solicitor (or any other professional) that duty is set to a higher standard – the "reasonable man" becomes the "reasonable solicitor". The test that the solicitor or adviser is put to, is an objective one. If another lawyer (of equal experience) was put in the same position, would he or she have made the same mistake? If the answer is in the negative, then a client who was wronged, may well have the basis for a professional negligence claim.
  2. BREACH: Mr Mitchell's solicitors missed a deadline ordered by the court. Do you think it reasonable for a solicitor to respect such a deadline? If there was any doubt in terms of what the consequences might have been in the past, there can certainly be none now.
  3. LOSS/DAMAGE: it is important to be able to show that the loss, in a professional negligence case, usually pecuniary in nature, flowed directly from the breach: the "But For" test. "But for" the solicitors' mistake, would Mr Mitchell have suffered a loss? If the solicitors had adhered to the court's directions, no such restrictions on recovery of costs would have been imposed – at least, not for the reasons given in this case. Mr Mitchell has retained his legal advisers on a no-win/no-fee agreement so for now, he will not be too upset about the mistake. Ironically, the decision will really only have an adverse effect in the event Mr Mitchell wins his case. Fees for this type of claim could be in the hundreds of thousands of pounds – fees he would have to pay out of his own pocket. That burden would have fallen on the opposing side's solicitors in the event of a victory. Damages for professional negligence are supposed to put the injured in party in the position they would have been had the negligence not occurred. If he is successful at trial, Mr Mitchell could have a potential claim against his own legal advisers for the fees he would have recovered from the other side's solicitors had his legal fees not been capped.

On that analysis, what do you think? Were his lawyers negligent? Would you sue your solicitors if you were placed in the same position? Would your decision change depending on the outcome of the trial?

Most recently, the penalty for failure to comply with court directions has been further emphasised in the Court of Appeal case of Durrant v Avon & Somerset Constabulary [2013]. Originally, the defendant's two applications seeking a relief from sanctions was granted by Judge Birtles, who agreed to allow eight witness statements to be served more than two months after the original deadline. This decision was overturned by the Court of Appeal citing the Mitchell case in its reasoning.

This firm has a broad experience of successfully negotiating and settling professional negligence claims via out-of-court dispute resolution methods. If you have a query with respect to a potential claim for professional negligence, then contact this firm for a free consultation for a limited time only.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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