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Lessons in mitigation

Eamon Mooney considers the merry dance played by solicitors during allegations of professional negligence

16 December 2014

When a solicitor faces a negligence claim, a ritual dance commences. There is often an early skirmish over the duties the solicitor owed, followed by more elaborate footwork surrounding causation and the consequences of any breach of duty. Then, however, it is frequently game over.

The client relied on the solicitor; the client was let down; and the client has taken a course of action they wouldn't have taken otherwise. Noises will be made by the defendant about their former client failing to take reasonable mitigation steps, and there will be assertions from the claimant that the client should not have to act speculatively to try to sort out the problem caused by the solicitor.

Figures will be haggled, payment will be made and the matter will be settled -with the music fading and drawing the predictable dance to a close.

But those time honoured steps in that traditional dance were not followed in the Chancery decision in Bacciottini & Cook v Go...

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