AVOIDING NEGLIGENCE CLAIMS 6: COMMUNICATIONS WITH THE CLIENT
Previous posts in this series have concentrated upon limitation issues. This post looks at the recent decision of Judge Gosnell in Procter –v- Raleys (Leeds County Court 6/11/2013). In particular what it demonstrates about the need to communicate with the client.
THE FACTS OF PROCTER
Mr Procter had instructed the defendant to represent him in an action against various mining companies following the development of Vibration White Finger and Hand Arm Vibration syndrome. The claim was brought under a scheme administered by the DTI. No claim was brought for common law damages. The DTI scheme was tariff based, however it did allow claimants to claim damages for loss of services.
COMMUNICATION IN RELATION TO SERVICES
The medical report obtained for the purposes of bringing the claim had only one entry which was relevant to services where the claimant stated that he found gardening difficult as he could not grip a spade properly.
- The claimant’s lawyer recorded that there could be a potential services claim.
- The lawyer wrote to the claimant informing him about the service claim and other claims which would be considered in due course.
- A further letter was written giving information about potential services claim.
- When an offer was made a further letter was written giving the claimant more information about service claims.
- The claimant subsequently accepted an offer made under the scheme (which did not include an offer made in respect of services).
THE IMPORTANCE OF THE LETTERS
The judge observed that the three letters were crucial to the claim. They were the totality of the advice that the claimant had been given about the services claim. The claimant never had a face to face meeting with his solicitors. The defendant [that is the defendant solicitors in the negligence action] called no evidence that they gave any particular advice.
THE PAUCITY OF THE EVIDENCE IN RELATION TO ADVICE
The defendant solicitors did not call the fee earner who had dealt with the file. The judge observed that the observation that the three letters were sufficient was not satisfactory:
“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 LETTERS WRITTEN
The judge reviewed the three relevant letters in detail. The letters contained reference to a claim for services they included the advice that:
“It is a well established principle of law that anyone unable to carry out everyday tasks due to an injury should be able to recover the cost of any assistance to carry out those tasks.”
The claimant said that he believed he could only make a claim if he had actually incurred some financial loss. The judge held that the letter gave some support to this view. However, overall, the three letters – on an objective reading – did not suggest that a claim could only be made where there was a financial outlay.
WERE THE LETTERS SUFFICIENT TO DISCHARGE THE DUTY OWED TO THE CLAIMANT?
The judge was clear in his view that the solicitors should have done more to properly advise the claimant. A system of standardised letters and forms with tick boxes was not sufficient. The question was whether a reasonably competent solicitor should “have a discussion with the client to ensure that he has not only read but understood the correspondence.”
THE SOLICITORS SHOULD HAVE DONE MORE
The judge stated that a solicitor taking instructions from a client involved a three stage process.
- The solicitor should obtain information from the client about the claim and the facts.
- The solicitor should then give the client advice.
- The client then tells the solicitor what action he would like him to take on the basis of the advice received.
In the current case instructions were taken by questionnaire, the advice was the initial letters and instructions “were by tick box form”.
It was reasonably foreseeable that a client would not fully understand the system and the claims he was entitled to make. That mistake could have been avoided by obtaining full instructions “… which would include a meaningful discussion about what the Claimant could and could not do once he became symptomatic.”
THE SERVICE CLAIMS
The defendant solicitors knew that most miners were not well educated. Their records demonstrated that they were regularly experiencing clients who had not notified them of a potential service initially but changed their mind at a later stage on receipt of further information. A staff meeting minute indicated that clients were better advised if spoken to over the telephone. In fact it read that the client should be asked to contact the fee earner:
“… so proper advice can be given over the phone or in the office. We need to ensure that services are fully explained to the client.”
The judge held that this phrase was particularly telling.
THE CLAIMANT’S CASE
There were aspects of the case which “should have rung alarm bells”. He had left questions blank in the questionnaire; had not made a claim for handicap in the labour market and his staging on the medical report led to a medical presumption he would need assistance with certain tasks. The claimant mentioned difficulties with gardening and this was noted and recorded by the defendant lawyer.
THE LAWYER’S DUTY
The judge held that it was incumbent upon the solicitor to check whether there were certain tasks which the claimant needed assistance with.
“I fully accept that it was not the Defendants’ duty to attempt to create a claim where
none existed, or to encourage a fraudulent claim. If the client replied to the enquiry by
saying that he had never done the tasks concerned or was still doing them without
need for assistance then I accept there would be no need to go any further. In my view
however it was not too much to ask the solicitor to directly consult with the client to
advise him in layman’s terms what a services claim was and whether on the facts that
applied to him he potentially qualified to claim. 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. It was foreseeable in my view that some clients
(particularly these clients) would not fully understand the long and detailed letters and
might misunderstand whether they had a right to claim or not with the consequence
that potentially valuable claims might never be made when they could have been. The
evidence suggests that a number of the Defendants’ clients did not fully understand
the right to make a services claim until they actually had a meeting or telephone
discussion with a lawyer who would fully explain the subject. It follows from these
conclusions that I find that the Defendants were in breach of duty.”
CAUSATION AND DAMAGES
The judge went on to find that defendant’s negligence was causative of a loss. The loss of chance was assessed at 50%
of the sum that the scheme would have awarded for loss of services.
This judgment has been much discussed in the legal press (see the links below). One crucial point is that one reason that the defendant was negligent was that they did not follow their own suggestions. A staff meeting had noted the importance of direct discussions with clients, particularly on the issue of services. It was the absence of direct discussions with the claimant that was negligent.
AVOIDING NEGLIGENCE CLAIMS
Life will be difficult for claimant lawyers under the fixed costs regime. This case indicates that a wholesale reliance upon questionnaires and “tick boxes” is unlikely to represent a sufficient standard. “Personal contact” may well be essential. The lawyer cannot assume that a client understands everything that he or she is sent.
FINDING THE CASE
The case is attached to this post and can be found by pressing on the header “Procter -v- Raleys” at the very beginning of this article.
There is an interesting discussion of the case and its principles by John Hyde at http://www.lawgazette.co.uk/practice/mistakes-inevitable-when-youre-paid-peanuts/5038848.article
There are particularly forceful views expressed in the comments section below the article.
There are several posts relating to taking witness statements (which have some relation to the issues in the case).
AVOIDING NEGLIGENCE CLAIMS SERIES
- For the first in the series see http://civillitigationbrief.wordpress.com/2013/07/07/how-not-to-get-sued-2-not-every-limitation-period-is-three-years/
- For a discussion of the limitation periods and air travel and aviation see two posts at
- For the post in relation to water travel and limitation periods see