Professional Negligence Claims On The Rise

Research Highlights 188% In Disputes

05.12.2014

David Shirt, Press Officer | 0161 838 3094

Research by RPC has shown that High Court actions against some Solicitors in the UK have increased considerably in the space of a year from 143 to 413.
 
According to the figures, which were exclusively reported in The Times newspaper, many disputes involve property and conveyancing disputes and include claims from sub-prime mortgage lenders.
 
The firm which conducted the research believes a contributory factor is that more people are being encouraged by the industry regulator to pursue claims.
 
It also highlights that claimants have six years to pursue negligence claims and that property transactions completed during the 2008 financial crisis have had an impacted on the latest data.

Expert Opinion
With recent figures demonstrating that the number of negligence claims against professional legal advisers appears to have trebled in the past year, the notion that the tide of professional negligence claims resulting from the height of the property market bubble in 2006/2007 may be coming to an end may be misplaced.

"There is of course a limited period of time in which claims can be made for breach of contract or breach of duty, and the question of limitation is an interesting one for the lender market to consider.

"Whilst many of the delinquent loans may be over 6 years old, there will be no doubt be some loans which are performing and in which the charge has not been registered properly or at all.

"The point being, that the negligence will not be known at the point when limitation, in the primary sense of the law, expires; such negligence not becoming apparent until such point as attempts are made to sell or re-mortgage the property.

"No doubt, insurers are going to argue that it is potentially too late for lenders to recover damages for the failure to register title.

"There will be other cases in which the value of the property is substantially less than the outstanding loan. This will be due on some occasions to a negligent valuation or a negligent solicitor failing to advise on a title issue or a sub sale. Again Defendant insurers are likely going to argue that any claim is time barred.

"If the Lender relies on the Latent Damages Act with its long stop provision of 15 years from the date of the advance, insurers are going to argue that the 3 year period for date of knowledge of a claim starts from when a loan first has a potential problem and not from the date of repossession.

"With the FCA and the FSA having had a policy of asking Lenders not to enforce a loan in default this policy in itself may have created a time bar for may claims of negligence.

"These claims are going to come out of the “woodwork” once interest rates increase, although this may seem an unlikely prospect in the current market, and in particular in those loans prior to 2009 which may have had a high loan to value ratio.

"The key for lenders is to firstly carry out some random checks on certain patterns of registration and in particular some known problem law firms to check that their mortgages are in fact registered appropriately before it is too late for a claim to be made.

"In addition the moment a loan goes into default a basic valuation check should be made either through an automated value model or alternatively even in main web products to ascertain if there is sufficient security and, if not, consideration must be given at that stage, and not at the date of repossession, to a standstill agreement on limitation against the Defendant professional or even the issuing of a protective Claim Form.

"In respect of a solicitor a request for a full copy of his file, including the client ledger, should be made as soon as there are any suspicions that call into question whether the services provided were accurate, appropriate and properly carried out.

"If these directions are not followed at an early stage of knowledge then it may very well be that any claim a Lender has for Damages against professionals on old loans will be lost as a result of being time barred."
Jonathan Sachs, Partner