How JustAnswer Works:
  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site. Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.
Ask Kasare Your Own Question
Kasare, Solicitor
Category: Law
Satisfied Customers: 1301
Experience:  Solicitor, 10 yrs plus experience in civil litigation, employment and family law
Type Your Law Question Here...
Kasare is online now

my solicitor issued protective proceedings on 11 june 2014

This answer was rated:

my solicitor issued protective proceedings on 11 june 2014 due to limitation issues. the poc was not sent to the defendant. my solicitor's then sent the poc on 10 oct 2014. i have the following questions for you :-
1. was the service of the poc valid?
2. was my sol negligent in not sending the poc in time?
3. the defendant is asking me to discontinue proceedings, what should i do?
4. the defendant is saying that even if i discontinue proceedings they will be seeking all their costs against me, can they do that?
Hi thanks for your question, I will assist you with this.
To answer your fully, I would be grateful if you could give me some background:-
1. When did you instruct the solicitors?
2. What is the claim? Personal injury, clinical negligence, civil litigation?
3. Why was there is delay? Was there still investigations ongoing?
4. What has your solicitor advised regarding the Defendant's request?
5. Any other information you have regarding your case - how long the case has been going on, your solicitors advice on likelihood of success etc
Customer: replied 3 years ago.

1. in october 2012

2. negligent valuation on residential property

3. my solicitor thought the other side may enter into negotiations but the reality was a) my solicitor had trouble identifying the correct defendant and b) where the correct valuer was identified my solicitor sent the poc to the wrong address(i.e. not the surveyors current address which i had notified him of)

4. solicitors have been sacked. i have informed them that the defendants are seeking their costs of 10k plus

5. my first knowledge of the negligent valuation was june 2011 hence the protective proceedings. solicitor always indicated i had a good claim and the damages were calculated at over 400k. the only issue would be if the court found i did not rely on the valuation. property has been retrospectively valued at 410k. the original valuer was a good 65% over!

Hi Nick
You say you became aware in June 2011, when did you purchase the property?
Customer: replied 3 years ago.


I see, so essentially given the passage of the 6 year standard limitation period, you had to issue within 3 years from the "date of knowledge".
So did your solicitors send a letter of claim to the defendant?
Sorry to be asking so many questions, but your situation is not quick Q&A scenario!
Customer: replied 3 years ago.


letter of claim sent to defendant, we also issued protective proceedings.

Was this at the same time? Did the Defendant respond to the letter of claim?
Customer: replied 3 years ago.

hi letter of claim set approximately 1 month before we issued proceedings. defendants instructed solicitors to act for them and reply to letter of claim

Hi Nick
If the Defendant acknowledged the letter of claim and instructed solicitors and the protective proceedings were served on the Defendant (sent to the same address as the LBA) or their solicitors (if they were instructed to accept service) then place of service should not be an issue, unless your solicitors simply served the Defendant's solicitors when they were not instructed to accept.
Has the Defendant served their Defence? Have they now suggested it was out of time? If this was served in October - you should be at the stage of disclosure and costs budgeting now.
However, in order to answer your specific questions, the question should not be whether your solicitors served the POC in time but the Claim Form. In protective proceedings the claim form must be served in accordance to the CPR 7.5 for valid service:
"(1) Where the claim form is served within the jurisdiction, the claimant must complete the step required by the following table in relation to the particular method of service chosen, before 12.00 midnight on the calendar day four months after the date of issue of the claim form."
The Defendant's could argue that it was served on them out of time as the CPR also advises that "deemed" service of a claim form is the 2nd business day after it was sent.
This is an argument that is used often. It is a matter of interpretation of the CPR. However, I would suggest that service was correct in accordance with the CPR. Nevertheless, that is for them to argue before the courts and if they do you/your solicitors could make an application for retrospective extension of time.
Thus, in answer to 1 & 2 - I would suggest service was valid and that although your solicitor cut it fine, they did so just in time. However, unless the Defendant has raised this as an issue I would not concentrate on this too much.
Now for 3 & 4 - I can tell you I have dealt with several cases like this and the Defendants have used every tactic in the book to get me and my client's to go away, from denial, to threats of applications, to seeking their costs. It is bluster. If you know you have a good case, ignore it. However, in order to protect yourself against costs, did you not obtain ATE insurance or have BTE insurance? If not, perhaps look at getting this asap. These insurances can cost a lot of money in these types of claims but this can be minimal in comparison to the Defendant's costs and your disbursments.
Normally as I say if you refuse to discontinue, they get more blustery - but really what are there "reasonable" costs likely to be given they have only been instructed for several months? As I say if you and your (former) solicitors are satisfied that you have a valid claim then do not be panicked by their threats.
Have they replied to the letter of claim and filed a defence? I would insist they provide you full disclosure of their denial and explain on what basis they consider you should discontinue your claim.
I would recommend that you get new solicitors to assist you with this claim as soon as possible. You can do it yourself, but these claims can become complicated and a solicitor experienced in these types of claims can handle the matter and procedural issues with ease. There may be solicitors who would be willing to take this on as a conditional fee agreement.
I hope this answers your questions, if you have anything further please ask.
Customer: replied 3 years ago.

thanks for that....

a couple of further issues. my solicitors were unsure who the correct defendant was. i had identified the correct valuer and his name and current address. the other 2 defendants were thought to be the correct defendant. at the time the other 2 defendants had requested disclosure of documentation and within 1 document was a reference to the correct trading name who carried out the valuation. unfortunately i had not noticed this as i had received the document some 18 months before and was part of a 500 page dsar request from my lender. the document was sent to my solicitor in october last year some 3 weeks before they drew up the poc. it seems my solicitor also did not read the document and as a result the defendant was named as the company to whom we all thought was responsible.

the problem then arose that not only did my solicitors send the poc late they also sent the poc to the correct surveyor but they sent it to an address which was incorrect. both defendants have indicated in writing that the poc was served out of time and also that the surveyor was served late and not at his last or usual address.

with respect to costs one defendant is quoting 16k so far and will accept 8k. the other side (surveyor) is saying discontinue or we will apply to the court to strike out claim and seek costs against me.

the defendant whose entity is disputed has provided a letter outlining why they are not the correct defendant but that is all.

my question is still 'if both sides are saying there has been incorrect service re names & times then when do i become liable for any of their costs?' if the service is invalid who notifies the court?

just to let you know i have now sent a preliminary notice to my old solicitors re a potential claim against them for the negligent mishandling of the above claim.

How many Defendants have you claimed against? 2 or 3? Who are the other parties?
When did the parties say it was late/not correct? Did your solicitor not deal with this issue at the time it was raised?
If the Defendants are saying that service is invalid they should have made an application to the court at the time of service. If they have accepted this and served a defence and carried on proceedings only raising this now, then they should make an application to the Court. In terms of costs and whether you are liable for these, that would be decided if they were successful in persuading the Court of their position.
I should add, if you have issued against a Defendant who does not have any liability you will become liable for their costs from the date of service.
You definitely need a solicitor asap to assist you with this. A solicitor can help you decide:
a) If you have a good claim that you can continue with in all the circumstances.
b) Who is the correct defendant - if one or all two/three.
c) If you should discontinue against any Defendant.
d) Negotiate costs if the other parties wont discontinue with no order as to costs.
If after all this the solicitors advise that you cannot continue with your current claim, then you can proceed against your former solicitor for professional negligence.
Customer: replied 3 years ago.

3 in total. 1 surveyor and 2 entities who the sols thought were the correct legal entities ultimately responsible for the valuation.

i did approach my old sols with a view to them continuing with my claim but they replied saying that as i may bring a claim against them in the future there is now a conflict of interest. that i must admit confused me?

Usually the claim would be against the valuer and potentially the lender. Therefore there are normally two potential defendants. Obviously I have not seen the documents - so I cannot really comment on whether the defendants are correct, hence my recommendation for another solicitor.
Your former solicitor would not be able to continue with the claim as you have put them on notice that you may in the future bring litigation against them for negligence.
The conflict of interest is that IF you HAD a valid claim but can no longer continue due to something that they have or have not done then you would have a claim against them. Alternatively, if they continued to represent you now, knowing that you feel they may have been negligent, you could claim later on if they continued and the case failed that it was their fault - whether it was or was not their fault. The circumstances here affects their ability to act impartially on your behalf hence their response to you.
You need a new solicitor asap.
Customer: replied 3 years ago.

thanks for your answers. having just spent over 16k on my formed solicitor's which got me nowhere funds are now extremely tight. indeed when all of the above problems started appearing they asked for another 5k to progress matters. if i didn't pay they would simply stop acting for me!! there is also 6k outstanding of their bills which they threatened legal action but they haven't taken any as of yet. furthermore i had interim bills along the way but never a full and final bill.

one last point, if i did have a good original claim and the solicitors by their actions lost any chance of pursuing it, how is a claim against the solicitors advanced?

I believe I have answered your original questions and much more, I'd be grateful if you would please accept/rate my answer thus far - I have had a lot of people lately where I have spent much time on their issues and they have simply gone without doing this and I get no credit for my time.
I will of course continue to assist and answer the additional questions above.
Many thanks
Kasare and other Law Specialists are ready to help you
Thanks Nick! Much appreciated!
It is a shame that you didn't look around, there are many solicitors who would have potentially taken this on via a conditional fee agreement.
In terms of your solicitors fees, you would need to look at their terms of engagement and client care letter which should have set out costs. Unfortunately, if you are a private client the solicitor has the option to cease acting on your behalf if you do not pay the interim bills.
If you are unhappy with the bills and feel they breach the retainer, ask for one of the partners to review these.
Re a case against them you should try and find a solicitor who is experienced in professional negligence and potentially willing to work on the matter on a CFA. If you look at the Law Society, they have a "find a solicitor" page where you can review solicitors in your area and the specialism you are looking for. Alternatively search online for Professional Negligence Solicitors and CFA.
But first and foremost you need a solicitor to assist with this case. Thankfully the solicitors who act on professional negligence often are experienced in actions against all types of professionals - surveyors, valuers and solicitors! So you may find one who can advise you on the current case and if you need to discontinue due to their negligence, consider a claim against the solicitors - they will have all the information they need already to hand.
Does that help?
Customer: replied 3 years ago.

original estimate £1800.00 following that some revisions but no proper explanation as to the large increases.

what i was trying to ask you was if i have a case against my former solicitors for negligence then how does that exactly work. in essence i am saying i have lost the chance to sue a surveyor for a negligent valuation?

Hi Nick,
Sorry for the delay (we occasionally stop for some family time! :) )
I dont know how they quoted you £1800 unless for letter of claim only and initial action. In my best estimate these types of cases usually cost at least £15-20k.
Yes, apologies, you are correct - your claim against them would have to be based on the "but for" test - i.e. but for their negligent actions/conduct you are no longer able to pursue a claim which had good prospects of success. They would then have to argue a) the case did not have merit and b) they were not negligent in their action.
BUT if the case had no merit, why would they have billed you £16k?
Re their costs, I would check if you had explanations about the increase in funds required and if not, advise them you are not happy with their costs (again and not to harp on about it, a solicitor or someone with sight of your documents should be able to advise you fully).
I am logging off now, but if there is anything else, I will come back to you tomorrow.
Good night and good luck
Customer: replied 3 years ago.

hi kas ref your third paragraph, if and when i issue against the solicitors primarily it will be on the basis they got the defendant wrong, served out of time and served at the correct defendants wrong address then how would the claim progress. firstly from the paper trail it is plain to see the sols got it wrong even bringing the claim. now with respect to whether i had a good claim, lets assume it went all the way to trial the only issue the court would have to decide is whether or not i relied on the valuation. just for your information the valuation was 70% out!!

and finally (he says) i am still not sure where i stand on the issue of liability of the other sides costs i.e to date. if all the defendants have indicated at some stage that service has not been correct, yet they have sent some form of defence then what will the court do if 1. i do not discontinue service or more to the point if the defendants apply to the court to strike out the claim would they be awarded costs up to now. as i mentioned before one defendant is saying they have already incurred 16k and will accept 8k...that seems high to me!

Good morning Nick
You really need to concentrate on one matter at this time - and right now it is the current proceedings against the Valuer and whoever else you have included. As a solicitor, without reviewing the full file of papers (correspondence from your solicitors, the defendants solicitors and the court proceedings) I cannot advise you fully on this. All may not be lost on this claim and you may still be able to proceed with your claim and be successful.
In terms of liability for costs, you can be liable for all defendants costs from the moment you issued and served them (including any pre-action costs they have incurred). This is irrespective of whether or not service has been correct. If you discontinue your claim or they apply to strike out the claim the Defendants can seek an order from the Court that you pay their reasonable legal costs.
As such, it is imperative that you have another professional review the matter to ascertain if you have a claim that you can continue with given the issues raised by the Defendant's. If they advise you that due to the catalogue of errors by your former solicitors your claim will fail due to the technical errors then you/they can try and negotiate with the Defendants an order that you discontinue your claim and each party bear their own costs.
If that happens, then you need to look to your former solicitors for redress - but not before.
Re The Defendant who has advised you of his costs - he has offered a 50% reduction to these, whilst it may seem high, you yourself have paid more than £16k of costs to your lawyer and you say you have another £6k outstanding and they wanted £5k more (a total of £27k!) - I think their costs are fairly standard.
What I would want to consider more is why they have advised they will accept a 50% reduction to their costs - particularly if they believe they have good reason to apply to strike out the claim! Perhaps they do not have good reason?!
Then - re your 1st question/paragraph - in order to bring a successful claim against your former solicitors for negligence you will need to establish a breach of professional duty by proving that the professional’s conduct fell below the standard of a reasonably competent professional in the same area of expertise and that this breach caused you loss.
In this instance, it is clear the solicitors owed you a duty of care. You need to show the above - the fact they selected the wrong defendant, served out of time and wrong address - fell below the standard of another solicitor in this area of expertise.
If you were dealing with this matter yourself, I would recommend you read the CPR, there is a pre-action protocol for professional negligence claims. You will need to prepare a formal letter before action. Quite often these claims can be settled without needing to issue court proceedings.
However, before you start this route, it may well be worthwhile putting your grievance to the professional directly before involving solicitors, in case the matter can be resolved amicably and swiftly between yourselves.
Customer: replied 3 years ago.


thanks for that.

one item which i think i mentioned above was an error on my behalf where i did not inform my solicitors of the original trading name of the surveyor's company who carried out the original valuation. as a result 2 of the defendants were incorrect and were entered on the poc. however as i previously mentioned i sent the letter identifying the correct legal entity some 3 weeks before my solicitors even drew up the poc. my quick question is if my solicitors were aware of the correct defendants (apart from the original surveyor) before they served the poc what should they have done before serving the poc. it must be remembered that the original letter before claim and the claim form would have had the wrong defendants.

Firstly Nick, the solicitors should have investigated this claim fully between Oct 2012 and June 2014 and should have asked you the right questions and reviewed all the documentation a long time before even preparing the claim form to ensure that they had the correct party identified.
I have no idea why, as a private paying client, they have left this matter in abeyance to the point that they issued against the wrong defendant. It all sounds very rushed and like there was little communication between you and your solicitors.
But secondly, if you identified the correct Defendant, and were certain of this and they were too, they could have and should have made an application to amend the Claim Form so that when it was served it was not served against the incorrect Defendants which will cause you to incur additional unnecessary costs for their legal costs.
However, you can also expect some level of criticism for not providing your solicitors all the required information in the first instance.
Customer: replied 3 years ago.

thanks kas.

i fully understand and that maybe a 'high level' of criticism may be directed at me for not providing the correct entity which carried out the valuation. however as you have pointed out my solicitors had almost 3 weeks to make an application to simply amend 2 of the defendants. if i remember correctly when i sent my solicitor the documentation 3 weeks before the poc was served i did not point out specifically the document in question which identified the correct entity. the documents sent through to my solicitor at the time were in fact following a request for information by the defendants. obviously my solicitors didn't read them before disclosing them, in actual fact it was the defendant who pointed out the obvious mistake to my solicitors!!! i may also add that following an earlier disclosure of documentation to my solicitor they did initially inform me that some of the information should not be disclosed to the defendant at such an early stage at it may undermine my case, but guess what they sent it all by mistake. the solicitors, following my complaint, accepted responsibility and knocked £200.00 off my bill. now looking at the whole situation everything to do with my case seemed rushed or rather no one really cared. they simply gave a very low estimate and it kept on going up and up and i had no option but to keep on paying!!

going back to the correctly identified defendant, my thoughts are that if my solicitors had dropped him a letter before claim, say a year ago, i am sure he would have been only too quick to identify his original employer, their insurers etc etc

Well hopefully you will get this sorted Nick!
Good luck with it!