Can I change solicitor whilst they are considering a complaint?

[Strawberrycocktail]

I wondered if any lawyers or those who deal regularly with lawyers might be able to shed some light on this please!

I am having a very bad time with a litigation solicitor who I didn’t choose (provided by an insurer). They have been inconsistent in their advice (what little advice they have given) and then kept me in limbo for 3 months whilst a court deadline approached when they had previously indicated they would be doing certain work in that time, sending me drafts, doing some research and providing details for the next step in the litigation. I am being deliberately vague but it was an important step where they needed to apply some expertise. They have done nothing to meet the deadline and now agreed an extension.

I am extremely upset that they kept me in the dark, not answering emails or voicemessages asking them what was happening and leaving me increasingly stressed that our case might be struck out (they already have a consistent history of sailing close to the wind and then expecting me to drop everything to review documents just before a deadline, disrupting holiday or weekend plans). Hence, I am absolutely sick of this. I am making a complaint and have already let them know I am sending it over and that their conversation with me hasn’t nipped the complaint in the bud. It now looks like this has caused them to stop work (again) as the promised long-overdue draft document wasnt sent to me.

These problems mean I am thinking of changing solicitors and have one in mind (I have the right to choose a different solicitor). However, i am worried that the current solicitor will cause more problems by not sending the file to the new solicitor, thereby jeapardising our ability to meet the new extended deadline. I asked the solicitor for a copy of our file a couple of months ago as they had not been answering some questions I raised about how they had recorded costs on our case and who was doing the work. They said they would send it ‘when it was ready’ but two months later it isn’t ‘ready’ apparently. Therefore, I don’t know how I can keep our case on track and transfer it to another solicitor if it takes them so long to provide the case file? I am also worried that they will delay providing it even further if I send my complaint. Hence, my question is can solicitors refuse to hand over the file when they are considering a complaint? This solicitor seems to have everything scanned in as electronic records so there would presumably be no reason why they couldn’t keep their own electronic files and simply provide a copy to another solicitor? Hence, is there any reason they can delay handing over the file while considering a complaint? Also, how normal is it to take 2 months plus to provide a copy of the file if requested?

Your client care letter should have a point of escalation / the file handler's supervisor or the partner with overall supervison. Is it in their hands now? Have you had an actual complaint acknowledgement?
What deadline is it? Is it limitation? Have you raised it with the insurer's recovery department? It may be that if ask the insurer's file handler to press the issue too, it's resolved faster.

Thank you Eileen, all good suggestions! I have been involving the insurer and they have chased/tried to escalate. We thought we were trapped with the current solicitor winding down to the deadline (even the insurer claims handler was sympathetic that we must be stressed counting down to the deadline but they were not getting any replies from the solicitor either). I thought a new solicitor couldnt get up to speed and take the actions in time and was resigning myself to a strike out and negligence claim! I hadn’t realised an extension could be obtained. Now I’d like to move immediately to give a new solicitor the best chance to pick up the pieces. There is a lot wrong with the current solicitor but I don’t want to be too detailed on here! It is their retrospective justification that they still have plenty of time and hence the extension is fine that has really pissed me off after the stress I have suffered while they ignored all attempts to contact them! The file supervisor has been really laid back and thought complaint resolved because the solicitor finally called me back and updated me. I have told him I wantit processed as a formal complaint and I am providing more detail. He tried not to acknowledge it as a complaint even though I filled in a complaints form on the firm’s website. However, I will be reconfirming in writing that it is a formal complaint and asking for it to be dealt with by someone more senior.

The deadline isn’t limitation but is an important step in proceedings (given in a court order) and a difficult one for another solicitor to take on in the time allowed as they have extra steps to complete before they can get started (like obtaining the file, assessing the case afresh and negotiating a contact with the insurer!). Then they have to find a suitable third party and instruct them to do a report. All this takes time. I think they may have to go to court to request a further time extension to do it all, especially if the current solicitor delays providing the file.

These problems mean I am thinking of changing solicitors and have one in mind (I have the right to choose a different solicitor). However, i am worried that the current solicitor will cause more problems by not sending the file to the new solicitor, thereby jeapardising our ability to meet the new extended deadline.

If you have the right to choose a different one, given your description of this one, I would get on with it and instruct someone else.

You are ALWAYS better off fighting a primary claim than trying to succeed in a negligence action - because then you have to prove (a) you'd have won on the primary claim AND b) they were negligent - whereas with the claim, you only have one of those steps.

You are of course right that a solicitor can be obstructive (or given your description of delays incompetent) in providing a file or a hand over - but I wouldn't worry too much about that because a lot of documents can be obtained from the Court file by your solicitors anyway if they are desperate. If the other side have lawyers instructed, they too have an interest in resolving the claim (obviously they want it their way/ you want it your way - but both sides want it done) so they can sometimes help with recent correspondence.

In short, you are better off having someone good ( even if they have a struggle to retrieve a file or reconstruct bits of if) on your case as soon as possible than sticking with a delaying incompetent.

Not saying this is your case, but in my personal experience, serious delaying/non-response is an indicator of a bigger problem - either a solicitor having a nervous breakdown or a firm about to go into insolvency. I've seen this many times. Whatever the reasons, it's not a good sign.

Courts are generally sympathetic to extension requests if it is because of change of solicitor due to this sort of issue - but (For example if you are taking about an unless order) you need to make that request in advance and not let the deadline expire because then you are on the back foot asking for relief from sanction.

Another point to bear in mind is that when looking at long delay, Courts do take the view that the case is the Claimant's case - so you have a duty to get on with it yourself. In other words, you can't just hide behind a solicitors delay as a total answer - because eventually it gets to a point where a Court's attitude is 'this is your case, you could see nothing was happening, it was your job to either chase your solicitors or change them'.

Thank you WigsNGowns for sage advice. Yes I would dread a negligence claim against them as I think the solicitors are stronger on defending solicitor negligence than on handling my type of claim! I have done quite a lot to try and keep it on track and I am more restricted in changing solicitors by the involvement of an insurer who already blocked my attempts to move at a few times when it would have been a good time to move as they are also the client and allowed to rely on the ‘advice’ of the solicitors apparently. Then the suitable moment passed, I was ‘allowed’ to move but stuck again at a critical point when a move would have been disruptive to the case so trying to give the solicitors a chance to improve as they promised.

It is hard to understand how they could be so terrible so it may signify there is more going on that I don’t know about/haven’t been told about. I have a few thoughts on this already but too specific to discuss on this forum!