Mining for claims: a year on from Proctor v Raleys

A year has now passed since the Court of Appeal's decision in Proctor v Raleys, a judgment which highlighted the difficulties defendant solicitors will face in stating that they gave sufficient advice if the advice they gave was contained in precedent letters and questionnaires (especially if they didn't actually meet the client, as was the case with the unfortunate Mr Raley).

This is typically the case for high volume, low value claims, like the vibration white finger claims which featured in Raleys. In December 2015 we reported on the trend for claimant professional negligence firms seeking out potential claims against the client's original solicitors, which was at least partly prompted by that decision. Websites offering cheesed off clients assistance in suing their solicitors are spreading across the internet like a rash. However, we can now report that this trend has not only continued but has mutated into something even more cannibalistic.

The trend we now see is for claimant firms not just to sue the claimant's original personal injury solicitors, but to sue the professional negligence solicitors the claimant instructed to pursue those PI solicitors, in a 'claim within a claim' Russian doll type scenario. Not only does this make for some hasty scribbled diagrams trying to work out who sued who for what and when, it makes for some interesting loss calculations as the defendant solicitor tries to quantify the claimant's loss of a chance of a chance. If you're still following, you'll see that this can result in some fairly tricky unpicking of what will almost certainly transpire to be a relatively low value claim, as the majority of these claims appear to relate (funnily enough) to VWF claims.

There are a number of bonuses for the claimant firm here. First, this type of claim gets around the pesky old chestnut of limitation as most VWF claims were settled so long ago that primary limitation has long since expired. S14a arguments abound, frequently off the back of strategically placed advertorials in the national media which purport to be the relevant date of knowledge (although we await the first decision which deals with this argument), but it's a neat trick if you can avoid that altogether by selecting a brand new defendant and effectively resetting the limitation clock. Second, the claims are mostly for under settlement of service damages, which, for the most part, would not have been particularly high value. These firms may well be banking on that as a disincentive for insurers and their insureds to fight what can be relatively complex claims (often involving high volumes of paperwork, including medical evidence) for the quantum involved. Ironically, a number of these claimant firms have what could arguably be called precedent letters of claim; it would be interesting to see how they would hold up should the whole process be taken yet one stage further and they face a claim from their own clients.

This trend also looks set to run and run, particularly as limitation starts to expire on certain types of industrial disease claims (such as VWF) and we start to reach the longstop dates. Professional negligence solicitors dealing with underlying personal injury claims are the obvious targets, although we have seen these types of claims with other types of legal work. Insurers may wish to consider how to deal with these claims at a strategic level, to avoid setting any precedents which may come back to haunt them.