FACTORY LAW FIRMS: END OF THE ROAD?
In Procter v Raleys Solicitors, Leeds County Court, 6 November 2013 HH Judge Gosnell held that the defendant firm of solicitors had been negligent in under-settling a claim after it failed to have a face-to-face meeting with its client, the successful claimant.
Raleys Solicitors settled a vibration white finger case for £11,141 but failed to take in to account activities that Mr Procter, a miner for 17½ years, could no longer perform including DIY, car repairs and gardening.
The court awarded Mr Procter half of the extra that he would have recovered had he been successful in the missed claim on the basis of loss of a chance. This reinforces the point that the victims of solicitors’ negligence virtually never recover the sum lost, as such claims are always loss of a chance claims. This principle is dealt with at length in the judgment.
The solicitor’s defence was that Mr Procter failed to tell them about his need for services due to his inability to perform certain domestic tasks, even though the solicitor had recorded on a file note that “there is a potential services claim”.
The advice to Mr Procter was contained in three letters. He was never seen. It appears he was never advised on the telephone.
The Judge, at paragraph 10, said:
“These three letters are crucial to this claim as they appear to contain the sum total of advice that the claimant received. The claimant claims that he never had any face-to-face meeting with any lawyer employed by the defendants and the defendants have not called any witnesses to give evidence that they actually gave any particular advice. The defendants have relied on Mr Barber who was a partner at the relevant time who can give evidence that the file shows that the letters were sent and that, in his view, the contents of the letters represent sufficient advice”.
At paragraph 20 the Judge, commenting on the evidence of Mr Barber, said:
“In relation to the letters which had been written to the claimant he was not prepared to accept that they were anything other than clear and I felt he was attempting to defend his own work as it was he who drafted the letters. That in itself was not too surprising but the fact that he appeared to suggest that the letters contained all the information which the claimant needed and did not seem troubled that there were no file notes to show that any relevant advice had been given to the claimant other than in those letters was not what I would have expected of a solicitor who was managing those fee earners at the relevant time. The answer I would have expected was that the client should have been advised in addition to the letters, the advice should have been recorded in a file note and the advice then confirmed in writing to the client”.
The Judge was not too impressed with the fact that the firm’s training included reference to a fictitious client – Mr Thikas Toosh Ortplanks.
The Judge went on to consider whether the sending of the three letters was sufficient to comply with the solicitor’s obligation properly to advise the client about his claim.
“What would a reasonably competent practitioner specialising in this type of work have done? Would he or she send out a series of long standardised letters to their client and expect him to tick the correct boxes on the tick box form to reflect his instructions or should they have a discussion with the client and try to ensure that he has not only read but understood the correspondence. “
The Judge held that the solicitors should have done more to ensure that the client actually understood the advice he was receiving.
The Judge set out a three stage process for when a solicitor takes instructions:
- The solicitor must obtain information from the client about the nature of his claim and the facts which surround it.
- Once the solicitor has all of the relevant information he or she should advise the client.
- The solicitor should discuss with the client what action the client would like the solicitor to take on the basis that advice.
Here the information was contained in the questionnaire, the advice was in the initial letters and the instructions were by tick box form.
The Judge held that it was reasonably foreseeable that a client may not understand the system and what claims he could or could not make, and that whether the particular mistakes were foreseeable is not relevant if those mistakes could have been avoided by the taking of full instructions.
The Judge was also critical of the fact that the standard letters were not adjusted to take account of the particular facts of the case.
The judgment, which is a first instance County Court one in any event, does not go as far as to say that failure to see a client, or at least speak to them on the telephone, is of itself negligent.
However the Judge did say that it was “not too much to ask” that a solicitor consult with his or her client direct. He added:
“The system set up by the defendants involving, as it did, the extensive use of questionnaires and standardised letters with very little personal contact with the client enabled them to deal with a very high number of claims at limited cost.
“The disadvantage however of such a system is that it is heavily reliant on the client carefully reading all the correspondence and filling the questionnaires in accurately”.
However, this was a relatively straightforward claim with liability not in dispute and the solicitors were held to be negligent.
Solicitors who routinely refuse to see clients clearly face an increased risk of negligence proceedings and may now find it hard to get professional indemnity cover.
Those solicitors how do see clients should take a very careful look at any case management system and the way it is operated by staff. Computer generated standard letters are no substitute for advice.
This decision could turn out to be more significant than many of the Jackson reforms. It may be the beginning of the end for factory firms whether they be law firm on Alternative Business Structures.
That must be a good thing.