Last word | DIY SOS

It's 2013 and I really should stop being surprised by certain firms' litigation tactics of sitting on documents for an age, then cynically serving them at the eleventh hour, knowing that much of the opposition's response time will be eaten up by bank holidays, staff days off and perhaps even closed offices. This used to happen every year when I began my career in the 90s '“ I believe I held some sort of record at my first firm for being served with proceedings on three Christmas Eves in a row, one of which I recall was something to do with dog food. The practice seemed to have died out for a while, perhaps when the friendly 'we're all in this together' Civil Procedure Rules were introduced, but it seems to be making a comeback.

In my current case, it was also only ?when I read the small print on the perpetrator's letterhead that I noticed that delightful phrase: 'We do not accept service by e-mail'. Although ironically they have requested an e-mailed copy of our response documentation as well. Demanding service of only hard copy documents in this way ?of course shaves at least one more day ?from an opponent's fast disappearing window of opportunity.

On the different point, I began the year on a positive note, receiving £150 towards our client's costs from the Court's Complaints Service for the inexcusable delays in correspondence from a certain county court about which I've previously ranted. That fairly small cheque represented a significant moral victory and was, as one would expect, very well received by the client who had long since given up hope of recovering anything.

Off with a bang

The Solicitors Regulation Authority (SRA) has certainly started 2013 with a bang. The catchy abbreviated monikers of 'OFR', 'COLP' and 'COFA' which they have been bandying around for over a year now have finally come to mean something to those of us getting on with the day job.

As we all know - we do, don't we? - every firm now has to have a Compliance Officer for Legal Practice (COLP) and a Compliance Officer for Finance and Administration (COFA) to whom all staff, as the regulations do not just apply to fee earners, can go with any concerns regarding potential breaches of the Code of Conduct or Accounts Rules.
Those lucky individuals then have to decide which, if any, of these matters is a material breach and needs to be 'self-reported' by the firm to the SRA. They also have to keep a record of all breaches, which the SRA can inspect. Are you still with me?

When I first heard of outcomes-focused regulation (OFR), it sounded somewhat Machiavellian. However, I now believe that we are very far from being told that the end result can justify the means.

Almighty headache

My firm rolled out a compulsory training course last month from our Professional Practice Team. We were asked to consider certain situations and decide whether they involved a potential breach which would need reporting to the COLP or COFA. The answer in each of the four scenarios presented was, perhaps predictably, in the affirmative.

I am not personally convinced that this signifies a fluffier approach to regulation at all. For large firms with thousands of employees this will be no mean administrative feat, in all likelihood necessitating the employment of a new team of people to support the two officers.
As regards smaller firms who won't ?have the budget to create a new department full of staff whose time cannot be charged out, it could cause an almighty headache.
I anticipate that the already long-suffering 'Insurance Claims' Partners with whom I tend to deal in my line of work will have a COLP or COFA tag added to their collection of entirely unenviable responsibilities. They will then be powerless to stop the increasing number ?of non-chargeable hours which will ?march onto their already administration-heavy timesheets.

There is also the important question of how the law firms will all be judged. Would it be a negative for the magic circle firms to report thousands of breaches in one 12 month period, or is that the benchmark expected of them, meaning that a failure to do so will result in a closer inspection? What if most staff are either too nervous, or possibly happily oblivious to their own obligations, and simply do not report in to their appointed officers. Will law firms have to introduce a new round of death by file audits to try and uncover such issues?

Perhaps a stronger steer on what is expected of the profession would be helpful, but I am forgetting that this is of course hands off, do it yourself regulation. Perhaps Ikea will offer us a flatpacked guidance product soon.

Copyright & permissions