Right Of Way Errors & Subsequent Negligence Claims Against Solicitors

A right of way across private land (referred to as an easement) has the potential to cause legal and practical problems for land and property owners. How an easement is interpreted and used is essential. Legal advice is usually needed in such instances.

Should a solicitor be instructed to provide advice in relation to a right of way and this advice is incorrect and subsequently causes you a loss, then you may be able to bring a negligence claim against the solicitor.

Alternatively, when a person, business, or developer is purchasing a property/commercial premises or land, they will typically seek legal advice from a conveyancer or solicitor. If the advice provided does not make the buyer aware of any right of way related issues, or provides incorrect advice in relation to them, and these issues come to light further down the line, causing the buyer legal issues then they could ultimately be able to bring a claim against their conveyancer/solicitor.

Right of way negligence claims against solicitors

To be able to make a right of way negligence claim against a solicitor or conveyancer you must first be able to establish that the solicitor or conveyancer owed you a duty of care.

In many cases, establishing a duty of care will be straightforward. If a person or company has instructed a conveyancer or solicitor to advise them on the purchase of property or land, it is well established that the conveyancer/solicitor will owe their client a duty of care to provide advice, which meets the standard of a reasonably competent conveyancer/solicitor.

A duty of care and level of service expected is usually specified via the conveyancers/solicitors’ terms of business or an engagement letter. In addition to specific contractual duties, conveyancers/solicitors are also under a general duty to act with reasonable care and expertise.

Once a duty of care has been established, the second hurdle to deal with in any prospective negligence claim is whether the conveyancer/solicitor has breached their duty of care. This can be complex depending on the case.

A simple error may not constitute a breach of duty. However, a conveyancer/solicitor will be deemed to have breached their duty of care to their client if they have not performed to a practice accepted as being appropriate by responsible members of the legal industry.

One of the most important, and often complicated, elements of any professional negligence claim is proving that the breach of duty caused the claimant to suffer a loss. A conveyancer/solicitor could have made a significant error but if it did not cause the loss complained of, then the person or business will not be able to proceed with a claim for professional negligence.

Often the starting point for establishing causation is the ‘but for’ test, which outlines that the conveyancer/solicitor will only be responsible for the loss of the claimant if their loss would not have occurred ‘but for’ the negligence of the professional.

Another similarly complex issue is that of loss. Sometimes it will be relatively easy to quantify that loss and, at other times, it will require some forensic work to establish just how much money has been lost or how much should have been gained had the conveyancers/solicitors’ advice not been negligent.

A person or business does have a duty to mitigate their losses, meaning that they need to have taken reasonable action to reduce the loss caused by the negligence of the conveyancer/solicitor. A claimant cannot recover damages for losses that they could have avoided or are deemed to be unreasonable.

If you have been affected by negligent legal advice in relation to a right of way and this has subsequently caused you to suffer a loss, then you may be able to bring a negligence claim. It is advised to seek legal advice first, where we can advise you on the merits of your claim.