- Litigation is an area in which Lawcover continues to see a high number of professional negligence claims against solicitors.
- Recognising when, where and how risk can arise in a litigation matter is key to managing it effectively.
Litigation is often complex and multifaceted. Not surprisingly, it is an area where we continue to see a high number of professional negligence claims. The following cases highlight some of the key risk areas.
In Spralja v Bullard & Ors  VCC 437, Mr Spralja was in litigation in relation to the sale of a fishing permit and shark catch quota. The litigation settled, but he later claimed his solicitor and barristers had not properly advised him in relation to the settlement and had forced him to sign settlement terms he had not agreed to.
Woodward J held that the solicitor and barristers were negligent and liable to Mr Spralja, specifically noting:
- The advice provided to Mr Spralja was superficial, unbalanced and, in part, misconceived. It did not adequately equip him to engage meaningfully with potential settlement options. As a consequence, the basis for any assent to ongoing settlement negotiations was not sound;
- Advice on prospects was wholly focussed on the risks to Mr Spralja and gave no attention to what success might look like;
- The advice was pitched at a very general level with no attempt to unpack the claims and counterclaims in the proceedings, and work through the likelihood and consequences of success/ failure in respect of the different parts;
- There was no written record (preferably signed by Mr Spralja) of his instructions on the offer that was finally agreed.