Avoiding professional negligence claims

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