You don’t have to stay! – Empowering parents of injured children to change solicitor if they are unhappyAugust 6, 2020
Nobody wants to change solicitor half way through a claim, litigation can be stressful as it is, but what do you do if you are unhappy with the service you have received? I decided to write this blog to try to reassure and empower parents who are dissatisfied with their child’s solicitor to take action and seek advice as soon as possible. As a Child Brain Injury solicitor, my clients are children who suffer brain injuries in accidents, but this blog applies equally to anyone who has an ongoing personal injury or clinical negligence claim.
Are you right in wanting to change solicitor?
Over the years, I have taken over many claims where my client has been unhappy with the service provided by their previous solicitor. The reasons for their dissatisfaction has varied but in all cases, their concerns were justified. My colleague, Ben Pepper, lists the most common reasons people wish to change solicitors in his blog.
In my experience, the three most common reasons people wish to change solicitor partway through a claim are:
- Not being kept updated
- Concerns not being taken seriously or ignored
Delay and failure to update
I recently took over a case involving a 6-year-old girl who suffered a brain injury whilst crossing the road on her way to school. During my initial telephone conversation with my client’s mother, she explained that she hadn’t heard from her daughter’s solicitor in months, he never answered her emails or returned her telephone calls and she was worried that her daughter’s claim wasn’t being progressed properly. I agreed to take over conduct of the claim and applied for the previous solicitor’s file. As I reviewed the file, I could see that what my client’s mum had told me was right, the previously solicitor had failed to keep her updated, had made little progress and failed to respond to her calls and emails.
Ignoring parent’s concerns
I have also taken over cases where parents feel their concerns about their child’s injuries or ongoing symptoms are not taken seriously by the solicitor. One example in particular stands out in my mind involving a 3-year-old girl who was a passenger in her mother’s car when they were involved in a head-on collision with the Defendant, who had lost control of her vehicle.
It was clear at the scene of the accident that her child had suffered a head injury. She was scanned in hospital and her parents were informed that she had suffered a brain injury. Their solicitor didn’t get a copy of the child’s medical records and rather than send her to see a neurologist (a brain, spinal cord and nervous system specialist), he sent her to see a GP expert (a general practitioner) who spent less than 10 minutes assessing her injuries. The GP expert concluded in his report that the child had suffered minor injuries in the accident with no mention of the brain injury she had suffered. Upon reading the report, the child’s mother called the solicitor to express concern that there was no mention of her daughter’s brain injury in the report.
Now, you would think the solicitor would apologise and rectify the situation but no; he put pressure on her to approve the report and settle the claim. If mum had agreed, the child would have only been compensated for the minor injuries listed in the report and not for her brain injury. This could have led to the child being seriously under compensated.
Instead, the mother called me. I listened to her concerns, which were clearly serious and important, and explained to her how I could help. I am pleased to say that we did take over this case and we thoroughly investigated the nature of the child’s injuries and she has now received the compensation she is entitled to for her injuries.
On this note, I would also acknowledge that when a child is seriously injured, it can have a real impact on family life. If you have a multi-disciplinary team coming into your home to deliver treatment and care to your child, then the dynamics have to work for everyone involved. I think sometimes solicitors can see their role as perfunctory – if the care package is in place then they have done their job but there is more to it than that.
My team and I take a much more holistic view. We consider whether the personalities work well for the family, whether the family’s wellbeing needs are being met and whether the care package providers are being sympathetic to the family unit. In my experience, a happy family – including the parents and siblings of the injured child, not just my client – will enable a far more positive environment in which my clients can thrive. That means that I have to listen to the family’s feedback and if it isn’t working (we are all humans after all), I need to find a way to improve things by communicating with everyone involved and taking action.
What are the barriers to changing solicitor and what is the process?
I have found that the two main barriers to people making the decision to change solicitor are:
- Telling the current solicitor that you want to change, and
- Whether you have to pay your solicitor’s fees before you can change
Some parents delay seeking advice about changing solicitor because they worry about having to tell their current solicitor that they wish to transfer their child’s case. Although this is understandable, it shouldn’t stop you taking action because once you have found another solicitor to take over the case, the new solicitor will deal with everything for you. There is no need for you to speak to your previous solicitor again.
Perhaps the biggest barrier is whether or not you will have to pay your previous solicitor’s fees before you can transfer to a new solicitor because the previous solicitor has a right to keep your child’s files and documents (‘exercising a lien’) until he/she is paid.
In practical terms changing solicitor is a simple process which involves you signing a form of authority requesting that the previous solicitor send their file to the new solicitor, but how quick and straightforward the process is will depend on how the case is funded, the stage of the litigation and the reasonableness of the previous solicitor.
- Funding of the claim
Privately funded claims. If you are paying your child’s legal fees yourself, provided you have paid the latest bill from the previous solicitor, you can transfer the case to another solicitor of your choice and there should be minimal delay.
Conditional Fee Agreement (CFA). If your child’s case is funded by a CFA, or No Win No Fee as it is commonly known, it is likely that the agreement used is the Law Society’s model CFA which requires clients to pay their solicitor if they wish to terminate the agreement. However, given the fact that the majority of Claimants won’t have the means to pay their solicitors bill, most solicitors accept that it isn’t viable to seek payment from their former clients and instead they agree to accept an undertaking (enforceable promise) from the new solicitor to preserve their right to be paid for their work (lien).
Legal Expenses Insurance. Many people now have legal expenses insurance included in their motor and home insurance policy either as standard or for a small fee. In most cases if you wish to use your legal expenses insurance to fund the costs of your child’s compensation claim, you will be required to instruct one of their panel solicitors. It is worth noting that the insurers cannot refuse your request to transfer the case to a solicitor of your choice once court proceedings have been issued.
Legal aid. If your child’s case is funded by legal aid, it may be possible to transfer the legal aid certificate to another solicitor provided they have a contract to do legal aid work by the Legal Aid Agency. Unfortunately, the process of transferring the certificate to a new solicitor is usually lengthy; therefore, the new solicitor may decide to offer you a CFA instead.
- Stage of the litigation
If your child’s claim is close to trial then a change of solicitor could prejudice their position. It may also be difficult to find a solicitor willing to take the case on at this late stage in the proceedings.
If your child’s claim is already in court, then you will formally need to notify the court of the change of solicitor, before the court will speak to your new legal representatives.
In personal injury and clinical negligence claims there is a 3-year limitation period in which you must issue court proceedings otherwise you may lost your right to claim. The 3-year limitation period starts to run from the date of the injury or knowledge of the injury, however, for children, the 3-year limitation period starts to run from the child’s 18th birthday, so court proceedings must be issued before the child’s 21st birthday.
It is likely to be difficult to persuade a new solicitor to take over your child’s case if you are close to the limitation deadline and even if you were able to find someone suitable to take the case on, changing solicitor close to the limitation deadline is not advisable due to the risk of the deadline being missed. In time sensitive situations such as this, you, and the new solicitor will need to consider whether a change is the best thing for your child and his/her claim.
- Reasonableness of the solicitor
Ultimately, a solicitor can only act on your instructions. If there has been a breakdown in your relationship of trust and confidence, then, as a professional person carrying out their job, a solicitor shouldn’t stand in your way if you want to change firms, provided that an agreement can be reached about payment of their fees and you can find someone else willing to take on your child’s case.
If you do decide to change solicitor, then find someone first who is able and willing to help you. They should then take care of the transfer of the file. Be open, explain the issues you are facing, why you are concerned, and see how the person you are speaking with responds. Sometimes, you may find that the advice you are receiving is the same as the advice from your current solicitor, in which case you may have the reassurance you need that all is well, other times you may realise that you want to go ahead and change, and it could make a world of difference to you and your child’s future.
Cheryl Abrahams is a partner at Bolt Burdon Kemp specialising in Child Brain Injury claims. If you would like to make a claim on behalf of a brain-injured child, contact Cheryl free of charge and in confidence on 020 7288 4854 or at firstname.lastname@example.org. Alternatively, complete this form and one of the solicitors in the Child Brain Injury team will contact you. Find out more about the Child Brain Injury team.