Claim struck out due to solicitors negligence

[oscarpalgal]

I filed a legal claim against my previous landlord using a solicitors firm. I signed a no win no fee agreement with them.

Long story short, the solicitors didn't keep me posted properly about the progress of the claim. I didn't know there was a trial scheduled for several months, and I didn't know a hearing fee had to be paid by a specific deadline. Due to a number of administrative errors the solicitors missed the deadline to pay the fee (it was them who had to make the payment, not me) and the claim was struck out by the court. As I never knew about the trial date I wasn't really in a position to chase them about that, during many months I was just waiting for an update about the case from them.

When the claim was struck out, they immediately applied to reinstate the claim, and there will be a hearing soon for this application.

I've been reading about this scenario, and I'm aware that the decision to reinstate the claim will just depend on the discretion of the court. I don't really know if it's likely or not that the case is reinstated, to be honest, but I think it's quite unfair that I'm now in this position when I have not done anything wrong. I hope the judge takes that into consideration when making a decision.

I'd like to understand what my position would be if the application to reinstate the claim is dismissed, so I can be prepared to act properly if that happens:

1. Could that be considered a solicitor's breach of our agreement, given that due to their negligence the claim was struck out?
2. I know we could always try to start fresh proceedings for the same claim, but I wouldn't want to do that. Could we refuse to do it if the solicitors propose it, or could that be considered a breach of the agreement from our side? I wouldn't want costs to keep escalating after all this mess, and I'm concerned that such scenario could happen.
3. I know I would be required to pay costs incurred by the defendant. Could I claim compensation to the solicitors in that case using the Legal Ombudsman?

[Pezza54]

Hi
It would be helpful if you could post the no win no fee agreement

[oscarpalgal]

I'd prefer not to do it, as this is a public forum and a solicitor of that firm could recognise the terms, I hope you understand. However, having a quick look at the agreement now I could summarise two important points that can be related to my issues:

1. The agreement says that we will not be responsible for their costs "unless the proceedings have been struck out". This is concerning, but I'm not sure this can be applied to a case that has been struck out due to a solicitor's negligence.
2. "Our responsibilities" (...) " we must always act in your best interests, subject to our duty to the court". In my view they have not done that, given the current scenario.

The rest of the agreement looks like a standard no win no fee agreement to me.

[Pezza54]

What about the defendant's legal costs and all court fees if your claim is unsuccessful? Did you take out legal expenses insurance?
Are there any more standard terms in the agreement about legal costs, expenses, court fees etc?

[oscarpalgal]

We didn't take out legal expenses insurance, we asked solicitors about it at the beginning of the process and they said they didn't recommend to take out that insurance in cases like ours, so we just followed their advice. So, essentially, according to the agreement we are responsible of all legal costs, expenses, court fees, etc if we lose. We took that risk because our case was cut and dry. The defendant wasn't in a good position during the proceedings (he had a very poor litigation conduct). However, we could have never anticipated a scenario like the one we're in now.

[JK2054]

i doubt the court would refuse to allow it back in.

it'll just be a case of pay fee by x date. solicitors will find a way to blame the court system. seen it loads never changes tbh

[Pezza54]

That was bad advice from the solicitor
The solicitor made the assumption that the defendant would pay all his fees if the case was won. If there is a shortfall between his final fee and the legal cost award against the defendant, you may be responsible for paying this. Insurance would probably have covered this sum.
If it was the solicitor's responsibility to pay the hearing fee and he failed to do so on time, causing the claim to be struck out, you should write a letter of complaint to the solicitor. If the solicitor acted quickly when the claim was struck out and can provide good reason why the fee wasn't paid on time and the claim should be reinstated, then there is a very good chance the court will decide the claim should proceed
You are right. If you end up with a complaint and dispute with your solicitor, you should refer your complaint to the Legal Ombudsman

[oscarpalgal]

Thanks for your response. I appreciate they provided bad advice, and I would include it in a potential complaint once the case finishes.

I'm not happy at all with the service provided, to be honest, and I guess I would have a strong case with the Legal Ombudsman if the application to reinstate the case is not accepted (or hopefully they accept their mistakes and escalation is not needed). Fingers crossed.

[oscarpalgal]

i doubt the court would refuse to allow it back in.

it'll just be a case of pay fee by x date. solicitors will find a way to blame the court system. seen it loads never changes tbh

Let's see, I'm not convinced with the arguments provided by them. Do you mean that in your experience most cases in these circumstances are reinstated?

[atticus]

These cases are very often reinstated. I share JK2054's experience here.

[JK2054]

it'll be reinstated its as simple as that tbh.

this will have happened loads (As it does at every firm) and the court will allow them back in, simple as really.

[oscarpalgal]

The hearing for the application to reinstate our case will take place soon. Solicitors have told us that we don't need to attend, however we're considering whether it would be beneficial for us to be there. Our case is where it is due to the solicitor's negligence, and for example, they didn't communicate to us at all since the reply to the defence was submitted, which means we were never aware that a trial would be happening and there was a deadline to pay a hearing fee, which was missed by them.

We don't really want to complicate matters, to be honest, but at the same time we believe a judge could probably be more lenient if they understood our case was progressing and we were not aware of it.

Could our attendance change anything regarding the case being reinstated or would that be just a waste of time for us?

[JK2054]

hate to break it to you but it would actually have a negative impact.

[oscarpalgal]

Thanks, that good to know. We're a bit overwhelmed with the situation, even though you said we shouldn't worry and the case would be reinstated. Hopefully you're right! We'll just wait and see then, and will forget about going to the hearing then.

[JK2054]

whens the hearing?