Suing a solicitor in court - few questions and advice needed please

[chocolatekimmy]

Hi I am hoping there might be some lawyers out there. I have posted briefly on this subject before but need some more advice.

Basically I was mis sold an endowment by a solicitor in 1990. This is according to the Financial Ombudsmans conclusions which took about 4 years. I contacted the Law Society but they didn't gain powers to award compensation until march 1991.

I am now left with the option of going to court myself. I have no qualms about this, preparing or presenting the case etc (done employment tribunals before).

I can't quite understand the process though for my claim which is £8400 (differnce between endowment surrender and repayment)and I assume I will add interest on.

If I can't go through the small claims court (up to £5k?), how do I go about it or who do I contact. The other major thing is am I at risk of paying out thousands in the other sides legal costs if I actually lose?

I can cope with losing and even having to pay out £500 or so but not if I am at risk of more.

Can I get an indemnity insurance to protect me?

I don't want to drop this as this guy sat and told me (when I was 19) that endowments were best, its guaranteed to pay off the mortgage and give a nice lump sum at the end. In fact, he even had a client recently who had thousands extra when their policy matured!

?

hi ck,

have you directly asked solicitor for the shortfall and he has said no?, there are firms who will take them to court but the cost is usuaslly 25% of win, i will ask around today as my company has 1600 independent financial advisers and i'm sure some one will help

err surely that implies that it is true!

Sorry I don't get this endowment misselling thing, surely anyone who buys one should read the small print and realise that the cash in value could be more or less than the sum stated! Caveat emptor and all that...

Anyway, I would approach someone on a no win no fee basis then your costs are covered but you have to pay a percentage to them

(also it is very unlikely it would go to court, they would settle)

You could try your citizens advice bureau for advice.
I'm sure that the papers you fill in are the same whether done by you or a solicitor.(who'll charge for the privilege)
my parents got missold an endowment & got some money back themselves. there on hols at the moment though

It is possible to go through the small claims court, even if the claim exceeds £5k. I recently claimed back bank charges, and I was over the small claims limit, but the court agreed it anyway.

What have you done to request the money so far? If you haven't already, you need to send a letter before action to the solicitor involved, giving all the relevant details and asking them to put their professional indemnity insurer on notice of the claim. I would allow 28 days for them to respond, then issue proceedings if they don't.

You may be able to get a solicitor to act for you under your house insurance if you have legal expenses insurance thrown in with it, well worth checking.

(I am a paralegal, not a fully qualified solicitor, but hope this helps)

hi ck

totally agree with wheresthevalium,this is what a colleague told me,

Small claims can go up to £99,999.99, see www.moneyclaim.gov.uk/csmco/login_get_started.jsp.
You must be able to show that you have considered alternative dispute resolution first, but should not become liable for other side's costs

Just to let you know, unless you have strong evidence of a guarantee (e.g. written on documents from the time of sale) it's unlikely you would get the amount of the shortfall. The usual form of redress is to compare how much the endowment is currently worth with how much you would have paid off a repayment mortgage by now. This is often substantially less than the shortfall and can be nothing at all. Did the FOS find you had been given a guarantee? Can you tell me what reasons the FOS gave for it being missold as I may be able to help further?

(I used to calculate compensation for mis-sold endowments and have also investigated sales of endowment policies)

hey ck, can you email me on [email protected] as i have just had massive email from colleague which will explain what to do but is to big to cut and paste and to make sense

Thanks so much for all those responses

So far, I have written to the solicitor again recently and asked for the money. The £8k was calculated by Exasoft who are a web based company that have provided an illustration - comparing it against if I had taken a repayment. Solicitor has a copy.

I had written to the solicitor initially in 2002 and they now claim that they refuted the claim back then and therefore they don't have a case to answer to and that my complaint is misconceived. I have been told that in the event of me replying I should send my letter to the complaints handler at the firm.

swanseadaddy - your'e a star, I will e-mail you now

ck - glad to hear that the amount you're claiming for has been calculated by Exasoft (they're the company that made the software most financial companies use to do these calculations - although you probably know that!). I've just seen lots of cases where people think that because they've been told they have a valid claim they think they're going to get the shortfall amount. Hope you get your settlement asap .

Thanks nuttygirl, thats reasssuring.

This has been the bane of my life for 6 years now and all I have done is hit my head against brick walls. We had a letter in our favour initially from the Financial Ombudsman and even signed to accept the compensation only to then be told that more paperwork had been found by the financial company that proved the advice had emanated from the solicitor.

I'm not scared of going to court or being up against solicitors or a barrister - I can only tell the truth and provide all the documentation I have. I'm also not scared of losing - just of being landed with a hefty bill for legal costs for the other side!

You need to be very careful as there is a 6 year time limit on contractual claims, ie. you CANNOT sue them more than 6 years after the event. When were you sold the endowment policy? If it is coming up to the 6 year time-limit, I would issue proceedings immediately.

Isn't it from date of knowledge though?

I don't know when the breach would be considered to take place in this sort of situation, but with contract, it is usually just 6 years from the breach. With tort, ie. non-contractual damage, it is 3 years from the time of the incident or 3 years from when the damage becomes apparent.

I think the OP needs to get some legal advice quite quickly though as she's mentioned that she's been banging her head against a wall for 6 years! That's what triggered me mentioning the time limit.

I think in this case you have a time limit from the date you first became aware of a potenital shortfall. Generally this is when your endowment company first notify you with one of their 'red' letters. I believe it was a 3 year limit at the time but don't quote me. The FOS were happy that we made the claim in time so hopefully we are ok to continue.

The solicitors are saying that we have waited too long as since the FOS conclusions we have been via the law society and back to where we started.

Its taken so long, I've had 3 kids in the time since it all started!!!!!

Legal fees on my insurance won't cover it as they are saying the event happened in 1990 so its out of date. I think they are fobbing me off because its only now that I know I need to sue the solicitor. I didn't know that back then or even when I started the process with the FOS!

I was thinking about this and to be honest am surprised that a solicitor was giving you what was essentially financial advice. I would have thought the correct thing for them to do would have been to advise you to seek independent financial advice. Maybe you should contact the Law Society and see if it is against their rules. (I'm a solicitor, but can't remember the details of that kind of thing and would always say if I didn't think I was properly qualified to advise on anything anyway.)

What happened was that back in 1990, sedgewicks financial services got some sort of agreement to allow solicitors to install and use some software for financial products. He basically filled in an online questionairre about us, what we wanted etc and then was given a list of 'suitable' products.

In this case, it was completely new to him and he sold it to us by saying that he would use us as guinea pigs and pay us all of the commission recieved (another selling point) but charge us a nominal fee of £100. It would be a win win situation as we would get the commission rather than a financial adviser and he would get £100 for doing very little!

We went for it, along with his advice about how great an endowment would be as it would pay off and give a lump sum etc. We got about £370 commision, duly paid him the £100 and thought it was great - until years later.

I have since found out that the commission was in fact £1200 in total over the full term! He also sold us the policy for the purchase price of the flat (rather than the mortgage amount) and a low cost policy when we could have easily afforded a standard one that would cost us less in the long run. He said that it would make more money because we had paid more in!!