April 12, 2024

Should I get a second opinion?

Posted in Mesothelioma

Bringing an asbestos claim can be daunting for anyone. Very few people ever need to pursue a claim, so it is often an unfamiliar and sometimes overwhelming experience. Claimants are reliant on their solicitor for advice and guidance, but what if you are unhappy with that advice, the speed of your claim’s progression, or the solicitor advises you there are low prospects of success?

Is there a right to a second opinion and how easy is it to change solicitor?

Everyone has the right to a second opinion, not least because different law firms may take different views on a case. Some may be willing to take on cases that do not meet other firms’ selection criteria. No solicitor is compelled to take on an individual case, therefore it is always worth having your case reviewed by other firms to see if their opinion differs.

Mr J had been advised by a national law firm in his lifetime and had had his case turned down because that firm felt the prospects of success were insufficient. Mrs J approached us at RWK Goodman for a second opinion, and upon reviewing the case, there was further evidence that could be gathered from other witnesses and other possible angles that could be investigated. Mrs J brought a case on behalf of the Estate of Mr J and it was concluded successfully, despite Mr J being advised by another firm that they could not continue to act due to the case having insufficient prospects of success.

What about the costs?

In the case of Mrs J, her case had been turned down by a previous firm, so she was able to enter into a new Conditional Fee Agreement with us without having to pay any of her previous solicitor’s costs.

Mrs B, Executrix of the Estate of Mr B, also found her claim being turned down by a national law firm, but her claim succeeded when she instructed us. The evidence was approached from a different angle and the case brought on the basis of the Occupiers Liability Act instead of an Employer’s Liability claim. Mrs B did not have to pay any additional costs and was able to enter into a new Conditional Fee Agreement with us.

The same thing occurred in the case of Lloyd v Humphreys & Glasgow [2015], which succeeded at trial after Mrs Lloyd instructed us after two previous firms had been unable to pursue her case. Our detailed understanding of out-of-time cases and the impact on Mr Lloyd’s claim of the asbestos trigger litigation meant that, when we assessed the merits of the claim, we thought it had good prospects.

What if I want to change solicitors because I am unhappy with my solicitor?

If a claimant is unhappy with their solicitor, can they change firms? Whilst a solicitor can charge their client for terminating the CFA, solicitors have to abide by the terms and conditions of the CFA agreements in the same way that their clients do. If they have not provided timely advice or advice on the pros and cons of legal action, then they may be in breach of the agreement. In practice, solicitors will normally make an arrangement with each other to preserve and recover the costs of the claim on behalf of the original solicitor, meaning that changing solicitors is a viable and usually straight forward process.

If the claimant is unhappy with the progress of their claim, there can be benefits in approaching another lawyer. Asbestos claims are technically difficult. The Mesothelioma List in London’s Royal Courts of Justice has a special fast track procedure outside of the normal procedure for injury claims. A specialist solicitor will know how to navigate these promptly and efficiently, to progress cases urgently.

In the case of Mr H, he instructed a small regional law firm that did not specialise in asbestos claims. He had a very strong claim and was in desperate need of an interim payment to fund private immunotherapy treatment, as at that point his treatment was not available on the NHS. Mr H’s solicitor was not progressing his case rapidly, despite the strong prospects and Mr H had to pay for his treatment himself. He was only able to manage this for a short period of time. He sought a second opinion from RWK Goodman and we were able to immediately issue Court proceedings and seek an urgent interim payment, which allowed Mr H to continue with his private medical treatment and recover the cost of what he had already paid.

While there are definite benefits to seeking a second opinion or changing solicitors to a specialist if you feel your claim is not being progressed fast enough, one also needs to bear in mind the practicalities. Files of papers take time to access, and solicitors need time to review and familiarise themselves with the papers. It is essential that practicalities such as limitation dates are kept in mind. As much as a new solicitor may want to help, unless sufficient time is allowed, it may be impossible to achieve. So if you are considering seeking a second opinion, the sooner the better!

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