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Can I change solicitor? The important facts

The success of your personal injury or medical negligence claim can be dependent on your choice of solicitor and you may not realise you are unhappy with the service you are receiving until halfway through a case. Many people feel daunted by the idea of changing solicitor and do not know how straightforward the process can be.

Reasons for changing solicitor

There are many reasons why it might be appropriate to consider changing solicitor. These include:

  • Disappointment at dealing with many case handlers rather than a dedicated contact.
  • Concern about the quality of the advice you are receiving.
  • Disappointment at the lack of contact from your solicitor.
  • Feeling left in the dark about your claim. You may feel that you solicitor does not communicate well or does not explain matters in a way that is easy to understand.
  • Unhappiness with the speed that your case is progressing at.
  • Feeling pressured to accept compensation that you feel is less than you are entitled to.

What’s the best way to ensure you receive good legal advice and a positive outcome?

Instruct a specialist solicitor. A specialist acts only for people who have suffered a personal injury or the consequences of medical negligence. Many firms claim to have the necessary specialism, expertise and experience. Unfortunately this is not always the case.

What signs should you look for when instructing a solicitor?

  • Is the solicitor accredited in their field by an independent body?
  • Have they arranged to meet with you or your family face-to-face to talk about the claim? A solicitor must fully understand the incident that gave rise to the claim, as well as the impact of the injuries on those concerned.
  • Have they advised on the range of options available to you for funding your claim?
  • Have they discussed rehabilitation needs with a view to secure appropriate support? This can include: care, aids and equipment and, in certain cases, accommodation.
  • If liability is admitted, has the solicitor discussed entitlement to an interim payment? This could meet private treatment, care, lost earnings or living expenses.

Three simple steps to changing solicitor

  1. Make the decision to change solicitor.
  2. Choose a new solicitor. Make contact and speak to your new proposed solicitor and arrange to meet with them if you can. Your new solicitor should speak and/or meet with you on a free, no obligation basis.
  3. Once you have instructed your new solicitor, they will send you a Form of Authority to complete and sign. This simple document will then be sent to your previous solicitor and authorises the release of your file of papers to your new solicitor. An example of this form would be: “I, Joe Bloggs of XYZ address hereby authorise and request you to release to (enter address of new solicitors) all such documents you hold in relation to my claim arising out of an accident on ABC date. This request is made pursuant to the Data Protection (Subject Access) Fees and Miscellaneous Provisions (Regulations 2000)”

Your previous solicitors should not contact you during this process. They should simply send all your case papers to your new solicitors. If they do contact you, ask that they discuss any issues with your new solicitors.

This is not a process that should leave you feeling pressurised, by either your old or new solicitors. The Legal Ombudsmen will take a dim view of any solicitors who are seen as being difficult.

Do I have to use, or stay with my insurer’s appointed panel solicitors?

If you have legal expense insurance, you will likely be referred to solicitors on their “panel”. This is a firm with whom the insurers have commercial arrangements. It is financially advantageous for them if the case is handled by panel solicitors.

Whatever your insurers or their panel solicitors tell you, you are legally entitled to choose your own solicitor.

Will I lose my legal expense insurance cover if I don’t choose their solicitors?

The insurers might say that you will lose your legal expense insurance cover if you don’t use their solicitors. This is incorrect. There is European legislation which provides that:

“Any contract of legal expenses insurance shall expressly recognise that: (a) where recourse is had to a lawyer or other person appropriately qualified according to national law in order to defend, represent or serve the interests of the insured person in any enquiry or proceedings, that insured person shall be free to choose such Lawyer or other person.”Legal Expenses Insurance Directive 87/344/EEC

There have been five cases in the European Court of Justice as to the meaning of “any enquiry or proceedings.” Only one of those five cases restricts the individual’s free choice of instruction. But that case only applies if you choose a lawyer who lives outside of the jurisdiction of the Court.

For more information on this issue, please read “Legal expenses insurers try it on again” from the Law Society Gazette.

Your new solicitor will correspond with your legal expense insurers. You won’t need to deal with them directly in this regard. Even if your insurers won’t extend cover to your solicitor, they can’t continue to do so once court proceedings begin.

What about the cost incurred by my solicitors before my case is transferred to my new solicitors?

Most cases are funded by way of legal expense insurance or a Conditional Fee Agreement (“no win, no fee”). Occasionally cases are paid for on a retainer basis where the client pays for costs as the case goes on. This latter arrangement is rare but it does still happen. Why pay as you go, when your case can proceed to conclusion with you paying no costs? An advantage of a Conditional Fee Agreement is that you won’t be charged if your claim is unsuccessful. For more information, please see our article: “Funding your medical negligence or injury claim”.

Your original solicitors should accept what is known as a “lien” on costs. This means your new solicitors simply give a binding undertaking that if your case is successful then they will seek to recover your previous solicitors costs at the end of your case. It is rare that your previous solicitors will ask for payment of costs before then. To receive full advice about this, it is helpful to have a copy of any funding agreement you have with your current solicitors available when you consult with possible new solicitors, as this agreement will be relevant to how costs will be dealt with. Your new solicitors will be able to explain this to you in further detail.

As mentioned above, it’s rare for solicitors to insist on being paid before transferring your file. This adds insult to injury when you are in a difficult situation and have received poor service. In our experience solicitors are not usually unreasonable in this regard. A “lien” on costs is the readily accepted way of dealing with this situation.

Can I get legal aid for my case if I transfer to a new firm of solicitors?

Legal Aid is not available for personal injury cases.

Since 2013 Legal Aid has only been available for clinical negligence cases relating to brain injuries sustained during or near the time of birth.

If you already have Legal Aid, it can be transferred if your new solicitors have a Legal Aid franchise.

Why instruct Clarke Willmott on a personal injury or medical negligence case?

Our expert Serious Injury and Medical Negligence teams are recognised by leading organisations. These include: the Association of Personal Injury Lawyers (APIL), Action Against Medical Accidents (AvMA), and the Law Society.

We are highly ranked by the two national legal directories, Chambers UK and Legal 500.

We pride ourselves on our specialist expertise and client care. For feedback received from our clients please see our testimonials.

If you have any questions about a new or existing claim, please get in touch. Our team of specialists will be happy to speak to you and discuss your case free of charge. Call us on 0800 316 8892, contact one of our solicitors directly, or use our enquiry form.