Court of Appeal upholds client's right to sue former lawyers for professional negligence | Fieldfisher
Skip to main content

Court of Appeal upholds client's right to sue former lawyers for professional negligence

Dushal Mehta
In ongoing litigation on behalf of a client suing his previous legal team for wrong advice in settling a personal injury claim, the Court of Appeal set precedent last week by deciding that the lawyers' failure to include provisional damages in the original settlement could constitute a professional negligence claim.

This gives Lee Witcomb the right to sue his former legal team for not including funds for future damages 14 years after original settlement.

Lee suffered serious leg and foot injuries in a road traffic accident in July 2002. He instructed Keith Park Solicitors to pursue a claim against the insurers of the driver involved. Liability was admitted and full and final settlement of £150,000 was agreed in 2009. At the settlement meeting, his former legal team failed to tell Lee about the potential risk of amputation in the future and the possibility of provisional damages if this occurred.

In January 2017, on his doctor's advice, Lee underwent amputation surgery, which severely impacted his life. When he asked his original lawyer if he could reopen his case, he was told he could not. He was subsequently advised by a medical professional to seek legal advice.

Lee then instructed Dushal to claim against the original legal team for wrong advice. The defendants argued that the claim was out of time because Lee had sufficient knowledge about his injuries for the limitation period to start in December 2009 or at the latest in 2016, meaning his claim was out of time.

The heart of the defendant’s argument was that Lee should have realised he had received flawed advise at the time of the settlement meeting or when his symptoms deteriorated more quickly than he had been advised they would.

The Court of Appeal, however, determined that Lee was entitled to bring his claim since it had been brought within 3 years of his acquiring 'relevant knowledge' of the flawed advice.

Lady Justice Thirlwall agreed that Lee did not have the necessary knowledge in 2009 because he could not have been expected to seek a second opinion because: ' He was being advised by apparently competent and experienced solicitors and counsel whose advice he was entitled to trust.'

'To require a litigant who has received advice from competent and experienced solicitors and counsel to incur the expense, delay and disruption of a second/third opinion in case the opinions of both solicitor and counsel (which he has no reason to doubt) were flawed would seriously undermine the effective running of personal injury litigation,' she said.

Lee may have been frustrated with the legal system, but he had no reason to doubt the advice he was given. Like most claimants, Lee had no experience of personal injury law and could not be expected to know about provisional damages unless advised by his lawyers.

The Court of Appeal gave a unanimous decision and Lee’s claim will now progress to a trial on liability and quantum.

DushaI Mehta instructed Jeremy Hyam KC of 1COR and John Paul Swoboda of 12 KBW.

Sign up to our email digest

Click to subscribe or manage your email preferences.