A recent decision of the Court of Appeal sends out a warning signal to disappointed litigants seeking to bring professional negligence proceedings against their former legal team in respect of the outcome of litigation.
The claimant here brought proceedings against his former solicitors in respect of the manner in which they had conducted personal injury proceedings on his behalf. The Plaintiff had his damages reduced in those proceedings by the Supreme Court and had been criticised by both the High Court and the Supreme Court in respect of his credibility.
The professional negligence proceedings were dismissed by Judge O'Malley in the High Court - the Judge finding that any difficulties the Plaintiff suffered with credibility in his personal injury proceedings were entirely of his own making due to his having given several different accounts of his health and employment history at various stages during the proceedings. She also noted that the Plaintiff's evidence of negligence from a suitably qualified expert was lacking.
This decision was appealed to the Court of Appeal, who agreed with the decision of the High Court. Judge Mahon found that neither the evidence before the High Court nor the submissions made to the Court of Appeal supported the position that the appropriate professional standards had been breached. The Court again noted that no expert evidence had been presented to support the very serious criticisms made of the claimant's former solicitors. He noted that whilst this was not an absolute requirement before proceedings are brought, the lack of expert evidence represented a "serious handicap to any plaintiff in a professional negligence action".
Professional negligence claims arising out of the manner in which litigation is conducted are traditionally trickier for claimants to bring home. This is due to the difficulty in establishing that a particular decision or course of action by a party's legal team had sufficient impact on the outcome of the proceedings to be said to have caused the Court to make the decision it did. Added to that is the fact that a certain amount of latitude is allowed to legal teams in respect of decisions made "on the hoof" whilst at hearing.
Disappointed litigants should therefore think long and hard before re-entering the litigation arena making claims that their former legal team did not do a good enough job.
The appellant failed to establish that, as a matter of probability, the outcome of his personal injuries action against Bus Éireann was undermined or rendered unsatisfactory because of any professional failure on the respondent’s part, or, indeed, his entire legal team.