Prof. Negligence

A solicitor taking over a litigation file from a previous solicitor on record is more susceptible to being successfully sued for professional negligence where they lose the case and their advices deviated from the previous advices given to that client (sic to settle) by the previous solicitor(s) whose advices could be deemed to satisfy the requirement for an ” independent expert report“.

In Rooney v HSE [2022] IEHC 132 where Simons J. said the following:

“[41]   … the courts have said that it is irresponsible, and, potentially, an abuse of the process of the court to commence professional negligence proceedings without first ascertaining that there are reasonable grounds for so doing (Cooke v. Cronin [1999] IESC 54). An independent expert report will be required in the vast majority of medical negligence claims, but there will be certain circumstances where such is not an essential precondition (Mangan v. Dockeray [2020] IESC 67).

[42]     This has resulted in a convention whereby proceedings alleging professional negligence will not normally be issued without the intended plaintiff’s lawyers having first had sight of an independent expert report. This convention is not absolute, and proceedings are sometimes issued notwithstanding the absence of the requisite report. This is done to protect the intended plaintiff’s position in respect of the two-year limitation period. This practice is sometimes referred to as issuing a ‘protective writ’ or issuing proceedings on a ‘protective basis’. It is imperative, however, that the requisite report be obtained thereafter with reasonable expedition (Murphy v. Health Service Executive [2021] IECA 3 at paragraph 93). Depending on the views expressed by the independent expert, it may become necessary to discontinue the proceedings.”       

In Dunnett v Railtrack Plc (Costs) [2002] EWCA Civ 303 (22 February 2002) the Court of Appeal of England and Wales made “No order as to Costs” against unsuccessful litigant on the basis the defendant company didn’t consider ADR before costs started to “flow” and their budgetary focus should’ve been on resolving the “substantive” dispute.

It is of course feasible that a client could successfully sue their solicitor for failing to advise on the cost of settling a claim rather than the relentless and antagonistic pursuit of expensive litigation. The esoteric question being if the solicitor was spending their own money (and not that of an insurance company/corporation) would they be so lavish and luxurious. Unlikely.

Also if a medical profession tells another medical profession “I have diagnosed a say peptic ulcer” it is likely weight will be attached to this professional opinion by the other medic. Should similar logic and analogy not apply when a legal professional asserts a breach of law etc ie should weight not attach to this? Or is the professionals’ opinion in their field of competence to be dismissed outright. The Bar Council of England and Wales put it succinctly as follows:

“Similarly, if it appears that a dispute could readily be resolved if only the other person realised that his view of his legal rights was incorrect, it might be sensible for you to say that you are a barrister, that you practise in the relevant field and so you are sure that your interpretation of the law is right. However, in those circumstances you should also urge the other person to seek his own legal advice, and not to rely on your view. In doing so, you would be seeking legitimately to resolve a dispute, and ultimately to save the other person the time and cost involved in bringing a claim that he was likely to lose.”

The law of professional negligence should address the foregoing in determining liability.

10/08/2015 Plaintiff to Defendant ” The Irish courts — Of which i am a practising solicitor — would understand that…”

8 Years and 2 months later and at huge expense to Irish taxpayer:-

4/10/2023 Irish High Court agreed in finding for the plaintiff “it was always going to be that way”.