Has your legal assistance provider missed a deadline, failed to investigate properly or advised you to settle without explaining the consequences? If so, a question of liability may arise. To answer it, you need to establish which obligation was breached, what would have happened had the case been handled properly and what loss the mistake caused. An unfavourable outcome is not in itself proof of professional negligence.
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Written by Onur Arslan, attorney at Arslan Advocaten. Do you have questions about your own situation? Contact us.
When is there professional negligence?
Whoever handles your case must act as a reasonably competent and reasonably acting professional would in the same circumstances. That is the standard the courts apply to legal service providers. The question is what care could be expected in the given situation, not whether a better approach can be imagined with hindsight. An engagement to provide legal assistance is an obligation of best efforts: the person handling the case promises careful work, not a won case (Article 7:401 of the Dutch Civil Code (BW)).
Clear examples of possible mistakes are an expired appeal deadline, a claim that was only brought after it had become time-barred, or proceedings brought before the wrong court that can no longer be put right. Less clear-cut are situations in which the person handling your case made a choice that you consider unwise in hindsight. A strategic choice that was readily defensible is usually not a mistake, even if the outcome is disappointing.
Communication can also play a role. The person handling your case must keep you sufficiently informed about the progress of the case, the risks and the consequences of important decisions. If you agreed to a settlement or to closing the case without the consequences being explained to you, that may amount to a failure. What is decisive, however, is what you would have decided had you been properly informed.
First establish who handled the case
Legal expenses cover often involves several parties: the insurer named on your policy, a separate claims-handling organisation or foundation that provides the legal assistance, a legal professional who dealt with your file and sometimes an external lawyer. For a liability question, it is important to establish who had which task. Use your policy schedule, the confirmation that your file was opened and any letters of engagement.
A mistake made by a legal professional employed by the insurer or the claims-handling organisation is, in principle, the responsibility of that organisation. If an external lawyer was instructed, that lawyer is personally responsible for the quality of their work. Lawyers are required to carry professional liability insurance. Whether the insurer is also liable for mistakes made by a lawyer it instructed depends on the arrangements made and on the role the insurer played in handling the case.
Also keep a liability question separate from an ordinary complaint. A complaint about poor availability or slow responses calls for the handling of your case to be put right. A damages claim requires proof of a failure, a loss and the link between the two. For the complaints route, see also complaint about your legal expenses insurer or claims-handling organisation.
Three questions that must be answered
1. Is there a failure? Which specific obligation was breached? Think of a deadline that was not monitored, evidence that was not gathered although that was the obvious thing to do, or advice that a fellow professional would not have given. Support each complaint with a document or a date.
2. Is there a loss? What disadvantage have you suffered? For example, a claim that can no longer be brought, a lower settlement amount than was achievable, or additional legal costs. The loss must be specific; disappointment about how things went is not in itself compensable loss.
3. Was the loss caused by the mistake? This is often the most difficult part. You must show that the outcome would plausibly have been better without the mistake. Where an appeal deadline was missed, the court will in principle assess how the appeal court should have ruled. If that cannot be properly determined, the loss is estimated on the basis of the good and bad chances you would have had in those proceedings (Supreme Court (Hoge Raad), 16 February 2007, ECLI:NL:HR:2007:AZ0419).
Loss of a chance
Sometimes it is no longer possible to establish what the outcome would have been. The court may then assess the loss as the loss of a real chance of a better result. That chance is expressed as a percentage of the amount you would have received had you succeeded. One condition, however, is that it must be established that the mistake deprived you of that chance: there must be a causal link between the mistake and the loss of the chance (Supreme Court, 21 December 2012, ECLI:NL:HR:2012:BX7491).
A fictitious example: an employee wants to challenge a dismissal and claims compensation of €20,000. The person handling the case lets the statutory deadline expire, so the request can no longer be filed. The file shows that the employee had a reasonable, but not a certain, chance of success. If that chance is estimated at 50%, the loss may be assessed at around €10,000. If the chance of success was virtually nil, there is little or no loss, even though the deadline was missed.
A settlement you regret afterwards
If you accepted a settlement on the advice of the person handling your case, the question is whether that advice was responsible and whether you were sufficiently informed. A settlement is often a reasonable choice, even if more might have been achievable in hindsight. A mistake is more likely if important heads of loss were overlooked, if a full and final discharge was signed without the consequences being explained, or if you were put under time pressure that was not justified.
Therefore check the advice you received, the calculation on which the settlement was based and the wording of the settlement agreement. See also our article on legal expenses insurers that want to settle or buy out your case.
How to go about it
First request your complete file, including internal notes on deadlines and advice insofar as they concern you. Under the GDPR, you have a right of access to your personal data. An external lawyer must make the documents in your case available to you. Without the file, it is difficult to assess what went wrong.
Then have an independent assessment carried out. A second opinion on your legal expenses file can show whether there has been a failure, and whether the original case can still be put right. Sometimes putting things right matters more than a damages claim: a deadline that has not yet expired can still be met.
Next, hold the responsible party liable in writing. Describe the mistake, the loss and the link between the two, and ask the party to notify its professional liability insurer. Ask for a response within a reasonable period and keep proof of sending.
Limitation: do not wait too long
A claim for damages is, in principle, time-barred five years after the day on which you became aware of both the loss and the party liable for it, and in any event twenty years after the event (Article 3:310 of the Dutch Civil Code). You can interrupt the limitation period with a written demand or notice in which you clearly reserve your right to compensation (Article 3:317 of the Dutch Civil Code). A new five-year period then begins.
Please note: the limitation period for your claim against the person who handled your case is separate from the deadlines in the original case. If that case is still ongoing, first make sure that no deadlines expire there.
What routes are available?
With a legal expenses insurer or claims-handling organisation, you start with the internal complaints procedure. After that, Kifid, the Dutch Financial Services Complaints Tribunal, can deal with complaints about affiliated financial service providers, including legal expenses insurers. Check the rules, the financial limits and what a binding decision means for you beforehand. The Kifid rules set out the conditions.
If an external lawyer is involved, you can first follow the firm’s complaints procedure. Disciplinary proceedings assess whether the lawyer breached the professional rules, but do not award damages. To obtain compensation for your loss, you need to send a notice of liability and, if necessary, bring proceedings before the court.
Frequently asked questions
Is a lost case always the fault of the person handling it?
No. A case can be lost even when it has been handled with due care. There must be a specific failure, such as a missed deadline or advice that a reasonably competent and reasonably acting professional would not have given.
Whom do I hold liable: the insurer, the claims-handling organisation or the lawyer?
That depends on who actually handled the case and with whom you had an agreement. A mistake made by a legal professional employed by the insurer or the claims-handling organisation is, in principle, the responsibility of that organisation. An external lawyer who was instructed is personally responsible for their own work.
How is my loss calculated if the proceedings never took place?
In principle, the court assesses how the missed proceedings should have ended. If that cannot be properly determined, the loss is estimated on the basis of the good and bad chances you would have had in those proceedings.
How long do I have to bring a claim?
A claim for damages is, in principle, time-barred five years after you became aware of both the loss and the liable party, and no later than twenty years after the event. Send a written notice of liability in good time to interrupt the limitation period.
Can I take a handling error to Kifid?
Kifid can deal with complaints about affiliated financial service providers, including legal expenses insurers. Check beforehand whether the organisation is affiliated, whether your complaint falls within the rules and what the consequences of a binding decision are.
What should I send to Arslan?
Your policy schedule, the case correspondence with the person who handled your case, the decision or judgment in your case, a timeline of events and an overview of the loss you believe you have suffered.
Have your file assessed
Contact Arslan Advocaten if you suspect that your legal assistance provider has made a mistake. We assess whether there has been a failure, whether your original case can still be put right and whether a damages claim has a good prospect of success. The engagement and the costs of an assessment or further handling are discussed in advance.
Sources
Article 7:401 of the Dutch Civil Code. Article 3:310 of the Dutch Civil Code. Supreme Court, 16 February 2007, ECLI:NL:HR:2007:AZ0419. Supreme Court, 21 December 2012, ECLI:NL:HR:2012:BX7491. Kifid rules.
This page provides general information and is not legal advice on your own situation. No rights can be derived from its content.
