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Two Lessons to be Learnt - Jennifer Haren, Weightmans LLP

24/08/15. So far in 2015 we have seen two decisions which are not only likely to leave a lasting mark on the profession but also a judiciary in no doubt expecting lessons to be learnt.

The first was Proctor v Raleys Solicitors [2015] EWCA Civ 400 where the Court of Appeal rejected submissions that financial pressures require solicitors to "commoditise" their advice. In upholding a finding of professional negligence against Raleys, for its conduct of Mr Proctor's miner's compensation claim, Tomlinson LJ warned against the over reliance on precedent letters and tick box questionnaires when seeking to discharge duties owed to clients to ensure that they fully appreciate the consequences of the instructions they provide.

Mr Proctor claimed that Raleys failed to adequately advise him that he could pursue a claim for loss of "services" - assistance with gardening, DIY etc - as a result of his personal injury claim for excessive exposure to vibration leading to the development of vibration white finger.

Raleys defended the claim arguing that they properly advised Mr Proctor - they sent three standard advisory letters and questionnaires to Mr Proctor. Mr Proctor did not however instruct the firm that he required assistance with services. The firm refused to accept that their approach resulted in Mr Proctor's Jack of instructions - this was despite the firm not having met with or spoken to him directly.

Sitting at Leeds County Court His Honour Judge Gosnell found that Raleys should have done more to ensure that Mr Proctor understood the nature of his instructions... "it was not too much to ask the solicitor to directly consult with the client to advise him in layman's terms what services claim was and whether on the facts that applied to him he potentially qualified to claim".

Raleys appealed HHJ Gosnell's decision on the question of whether the firm was negligent in failing to conduct either a meeting or telephone conversation to satisfy themselves that Mr Proctor fully understood their advice.

In dismissing the appeal Tomlinson LJ observed that it was reasonably foreseeable that clients such as Mr Proctor might not understand long detailed letters and could misunderstand whether they had a right to claim. Tomlinson LJ formed the view that the claim "cried out for short discussion with the client, preferably face to face, but if necessary over the telephone, in order to ensure that the client understood the circumstances in which claim... could be made".

Whilst the profession will likely agree that it is not always commercial or indeed practical to advise clients face to face (particularly in the advent of the fixed fee/Pl portal regime) Tomlinson Lj's warning that solicitors should not feel "inhibited" from ensuring that clients have "understood advice given... by the consideration that so ensuring might generate further fee payable by the client''ought not to be taken lightly. It would be interesting to see how a Claimant's solicitor would fare if arguing that the 200 odd mile round trip to meet with a client in a claim worth no more than say £1800 was reasonable and proportionate.

The dangers of the profession relying on precedent letters and questionnaires was again highlighted in the recent decision in Saunderson & Others Sonae lndustria (UK) Ltd [2015] EWHC 2264 (QB). Here Mr Justice Jay, sitting in the Liverpool High Court, was pretty scathing of those Claimant firms involved and has referred two such firms to the SRA for alleged misconduct.

In Saunderson Mr Justice Jay heard 20 test cases of those involved in the Sonae Group Litigation. The Group Litigation involved 16,626 Claimants seeking compensation for personal injuries (mainly eye, skin irritations and breathing problems) they said they sustained following a large scale industrial fire at the Sonae plant in Kirkby, Merseyside in 2011.

Mr Justice Jay found in favour of Sonae and dismissed all 20 claims.

In his judgment, he found "serious weaknesses" in the Claimants' cases citing reasons such as delay and the "absence of any contemporaneous evidence" as to why the claims failed. He was also critical of the use of standard form questionnaires finding that they "asked a series of leading questions" which provided "inaccurate and exaggerated' responses ..."calling into question the objectivity and integrity of the whole process". As to the use of "pop-up shops and cold calling" he found that this method of attracting prospective clients did not engender "any degree of confidence".

In two of the 20 test cases, involving Claimant firms GT Law and Walter Barr, Mr Justice Jay found that documents served bore forged signatures. As a result he directed that a copy of his judgment be sent to the SRA. Mr Justice Jay was of the view that the forging of a signature on a statement of truth by a non-solicitor employee of GT Law left not only an "unpleasant miasma of concern and dubiety... it also has the potential to infect the integrity of [thefirm's] processes overall, and other claims."

These decisions serve as a salutary reminder of the importance of firms ensuring that they try to avoid a one size fits all approach to low value Pl claims. Whilst there is nothing wrong with the use of templates and questionnaires each claim does need to be reviewed and assessed on its individual merits with a strategy/approach devised which is bespoke to the individual Claimant's needs and requirements.

Is the profession likely to see an influx of undervalue settlement claims and increased attention from the SRA on the back of these decisions? Possibly. Of course undervalue settlement claims are not a new phenomenon. They have however become increasingly prevalent and will no doubt continue to do so as personal injury practitioners latch on to recent decisions such as these in their search for more lucrative sources of work viewing the handling of these claims as an easy transition from personal injury.

Jennifer Haren
Weightmans LLP

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