Melissa Worth

Commercial Disputes Partner, Bexley Beaumont

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… pressures to hit targets and other responsibilities can result in all solicitors overlooking the need to stay on top of legal developments

Avoiding professional negligence claims

Opinion
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Avoiding professional negligence claims

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Melissa Worth analyses factors typically leading to professional negligence claims against solicitors – and how to minimise the risk

The number of negligence claims against solicitors always increases when the economy is suffering, but the large number of solicitors working remotely during the pandemic has provided the perfect storm.

June’s Supreme Court judgment in Manchester Building Society v Grant Thornton [2021] UKSC 20 means claimants can argue that there is greater range, or number, of losses within the scope of a solicitor’s duty.

The pandemic will have exacerbated existing problems, but will not be the root cause of negligence claims. Here is my take on the top five factors leading to claims against solicitors.

1.     IT systems

There is pressure on solicitors to assimilate more information more quickly. Case management systems can greatly assist. However, solicitors rarely make full use of such systems. Some practitioners try to avoid training around new IT altogether. Often, these solicitors attract the most client complaints. There can be a disconnect between the IT professionals and solicitors, as IT professionals do not always understand solicitors’ day-to-day responsibilities. Some firms may not be able to afford the luxury of sophisticated case management systems.

When used correctly and consistently, IT systems are an incredibly useful tool. They remind solicitors of deadlines and prompt them to do certain things at certain times such as reviewing advice checklists or providing up to date costs estimates.

Top Tip: Invest in IT systems relevant for your practice and regularly train all on its functionality, including refresher training.

2.     Recording deadlines

This function should be part of a good case management system but, as it is an issue which regularly results in notifications to insurers, deserves a mention of its own. Civil litigators will appreciate that the court has, for many years, been less forgiving about missed deadlines. Yet, still, many civil litigators fail to appreciate the urgency at which a relief for sanctions application ought to be made. In firms undertaking property work, referrals to insurers for missed deadlines for the renewal of leases are very common.

Top Tip: Record key deadlines, keep a key dates calendar and review regularly.

3.     The retainer

The scope of a retainer should be set out in writing at the outset. However, professional negligence lawyers will regularly see instances of advice being given without a properly documented retainer. Often, solicitors will argue that the advice complained about was not part of the retainer, but if the scope of the retainer is not properly documented, a solicitor will be at risk. This is even more important given the decision in Manchester Building Society v Grant Thornton [2021] UKSC 20.

Top Tip: Ensure retainers are in writing and correctly scoped and review regularly.

4.     Recording advice

Clients may appreciate regular calls over lengthy written advice, but if a solicitor does not record advice in writing, they will not be able to evidence that the advice was given. This sounds basic, but all professional indemnity lawyers will have dealt with a case where the solicitor will claim the advice was given yet is unable to evidence it. If you are regularly advising clients on the telephone and not in writing, file notes are a must. Your advice may be perfect but, when faced with a claim, all that will matter is the extent to which you can prove it.

Top Tip: Record advice in writing, files notes are a must.

5.     Supervision and culture

In the race to be increasingly cost-effective, more work is being dealt with by less experienced professionals. Junior colleagues may lack the experience to understand how the relevant law ought to be applied. It is not just junior colleagues that require supervision, as pressures to hit targets and other responsibilities can result in all solicitors overlooking the need to stay on top of legal developments. File reviews can be a useful tool, but it is better to encourage a culture of collaboration and support where colleagues have the confidence to discuss their concerns without judgment. An inclusive and collaborative team culture, where solicitors are not afraid to ask and discuss potential mistakes/issues at the first opportunity (and without blame) can greatly reduce claims and complaints.

Top Tip: Implement good supervision working practices and create an open and collaborative culture.

Melissa Worth is a commercial disputes partner at Bexley Beaumont who has acted both for and against solicitors dealing with professional negligence claims: bexleybeaumont.com