SUING SOLICITORS – WRONG CHOICE OF COURT

Solicitors are not doctors but they have to be able to understand exactly what is said in all medical reports. Sometimes the language can be difficult but the fundamental principle is that if a solicitor does not understand what is in the medical report then he must get assistance from somebody who does. 

In the case of Lopez v. Walker in 1997, a solicitor allowed an injury case to proceed in the Circuit Court relying on a number medical reports, which appeared to indicate that his client’s brain injury was congenital rather than caused by the accident. Reports had been obtained from a neurologist, an orthopaedic surgeon and a psychiatrist and the solicitor was of the view that the content of these reports together with the opinion of his barrister justified the case proceeding in the Circuit Court. There were however certain provisos mentioned in some of the reports and these matters were never followed up. It is not unusual for a medical report to be reasonably definite about the cause of an injury or the long term prognosis but adding that further enquiries should be made about a specific aspect of the injury. This case is authority for the fact that a solicitor must diligently read the medical report and unless he has overwhelmingly strong reason to ignore any of the contents of the report, the solicitor must follow up and eliminate any reasonable directions set out in the medical reports. 

This case is also authority for the fact that just because a barrister says that this is the right way to proceed, does not absolve the solicitor from ultimate responsibility. I have come across many cases over the years where solicitors rely entirely on the advice of their barrister and while the advice of barristers is almost always extremely useful and helpful, barristers are not infallible. This last point is particularly important because courts have traditionally held the view that if a solicitor properly instructs a barrister and then follows his advice, he generally cannot be found negligent but this case is authority for the fact that it would be wrong of a solicitor to blindly follow the advice of counsel in the same way that it is wrong of a solicitor to not diligently read, understand and follow up every aspect of a medical report.

Kevin Brophy,
Brophy Solcitors

Suing Solicitors – Statute of Limitations

Kevin's Blog

The Statute of Limitations is fairly clear. If you have a personal injury action, you must issue your proceedings within two years. If you have a defamation action, you must issue your proceedings within one year. If you have a breach of contract case, you have to issue proceedings within six years and this is the heading under which most people will sue their solicitor if there is a question of negligence.

What is the position however where that solicitor acts in a negligent manner but continues to act for you? By a strange coincidence I have two cases at the moment involving solicitors who continued to act for clients for several years until in fact the six year period had passed and the client then came to me.

The basic rule is that if you know or if you ought to have known that your solicitor had acted in a negligent manner, then you have six years from the date of that knowledge to issue your proceedings. Even if your solicitor says, “don’t worry, I made a mistake here but I’ll work it out – leave it with me”, you could still have a problem. This is the position I have in these two particular cases. In one of them I think we have managed to overcome the problem but in the other one, I have a barrister telling me that if we issue proceedings, the chances of success are no more than 50/50. The law is extremely complex in this area.

The basic lesson to learn from this however is that if you suspect that your solicitor has acted in a negligent manner and that you have suffered a loss as a result, get a second opinion. There is nothing to stop you going to another solicitor and telling them what has happened and asking for a view as to how you should proceed.

Otherwise you could be statute barred from bringing any claim in the future.

Kevin Brophy
Brophy Solicitors