Under Settlements
These are the compromise or settlement of disputes, claims and litigation pursuant to or in reliance upon erroneous legal advice where the outcome is significantly below what could be expected in similar circumstances.
This is a type of claim which we have pursued with very good results but the assessment of whether there is a case against the lawyer in negligence must be carried out carefully and there are inevitably some cases where there are justifiable reasons for the apparent Under Settlement or the difference is too small to amount to a breach of duty or to be worth pursuing.
There seems to be quite a lot of attention being given to Under Settlements particularly because of the growth of volume personal injury work and industrial disease claims schemes, where some unfortunate examples have occurred. However, litigation is not a fixed battleground but is more fluid, ebbing and flowing with the arguments and evidence of both sides, so the valuation of a case can go up or down. This sometimes leads to settlements a long way below the valuation advice provided at or near the outset by the Claimant’s lawyers but can be justified by the changes in the evidence, not least the Defendant’s best efforts to avoid or undermine or down value the claim. We all know that Lawyers will always disagree and argue different positions and figures for their Clients and settlements will always vary according to particular facts and personalities.
There is obviously a human element in any negotiation and this can lead to differences in outcomes in cases, which appear similar to each other. It is also very clear that the Court will judge your lawyer’s advice according to the standards of a reasonably competent lawyer and not those of the best lawyers in town. Further, the Court is always slow to criticise lawyers for advice given which leads to a compromise, as the advice has to be given when there is no certainty of outcome and many factors have to be considered, not least the lawyer’s assessment of the merits and risks and how to achieve the best outcome for the Client. The skill and experience of the lawyer in negotiating in difficult circumstances is treated with some respect and it is usually only in obvious cases of error that a Court will find that there has been negligence.
If there is an obvious error it is also necessary to find a significant difference in the actual outcome so that if your lawyer makes errors in how he has calculated a settlement figure but the actual settlement is there or thereabouts it will usually not be actionable.
There are unfortunately still cases of potentially actionable Under Settlements each year and sometimes the Client will not realise that the Settlement ought to have been significantly higher. If you have settled litigation and are concerned about whether an error has occurred we can certainly assist. We use our considerable experience of pursuing and negotiating many different types of litigation and our wealth of experience in pursuing professional negligence cases against lawyers to assess whether there could be a case in negligence to pursue on your behalf for Under Settlement. Mr M B Wilkinson BA MPNLA Solicitor.
Matthew Wilkinson
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