Professional Negligence Claims and Litigants in Person
By Lester Doake
Posted: 3rd October 2016 08:26
The expectation that the changing tide of legal funding will mean a swell in the numbers of litigants in person being swept up in civil proceedings has been much discussed. Drawing on my own experience, such cases certainly tend to have an added dynamic as they move through the litigation process. One recent example that comes to mind involved no less than thirteen defendants, twenty-one skeleton arguments and fourteen court appearances, reaching the Court of Appeal in Northern Ireland.
The judicial focus for such cases is very much based around access to justice, parity of arms and ensuring the over-riding objective, enshrined in both the Supreme Court and County Court Rules, remains the foremost consideration throughout. Litigants in person will not be cut adrift. Indeed, it would be a grave risk for all concerned if allowances were not made for litigants in person and their lack of procedural knowledge.
Addressing the Law Society of Northern Ireland in 2014, Lord Justice Gillen succinctly put it: - “although currently at least a minority of litigants in person behave in a way that leaves an adverse impression, as time goes on it may become abundantly clear that the overwhelming majority of self-represented litigants are legitimate users of the system. Acceptance of this truth is central to any lasting achievement of access to justice for self-represented litigants.”
One example of the type of allowances that must be made was seen in the case involving a multitude of defendants mentioned above. By way of context, I was instructed in the defence of professional negligence allegations made against one party to the proceedings, a firm of solicitors, in respect of residential property conveyancing services provided. The plaintiff, despite the fact that this was a single action, had served multiple versions of the statement of claim on different defendants and at different times.
Directions hearings were used by the Court to clarify that, procedurally, the case could not move forward on that basis. Leave was granted to the litigant in person to produce a single version of the statement of claim. It was further clarified, again by way of a directions hearing, that the single statement of claim was to be served on all defendants in good time for the hearing of the claim. This is just one example of the time taken by the Courts to accommodate the lack of procedural knowledge on a litigant in person’s part.
Generally, given the additional Court time taken up in furtherance of the over-riding objective, cases involving a litigant in person do have the potential to take much longer to resolve. The impact that this has on the professional facing a negligence claim must be borne in mind.
Whether a case involves a litigation in person or not, over the years I have seen first-hand how a claim can not only affect a professional’s reputation but can also have a profound impact on their ability to do their job. Having guided professionals through the legal process and witnessing the work and personal pressures that come with it, my recommendations remain the same for all of us providing professional services: -
Have a system to record all attendances and correspondence and stick to it. This may seem an incredibly obvious thing to state, but time and again I have seen a plaintiff produce letters that were not with a defendant’s initial papers because of simple misfiling. No matter how busy you get or how advanced or otherwise your offices’ ICT systems are, it is vital to be methodical about record keeping. It will never be adequate to simply keep even the smallest of details in your head alone.
Similarly, do not rely on a long-standing relationship with a client as a safeguard against claims of professional negligence. A clear example of this was seen in another case in which I was instructed on behalf of a firm of solicitors facing the allegations. The client had stayed with that firm through
merger with another office, resulting in a relationship spanning over a decade. Financial pressures placed on the client in respect of his property portfolio, following the 2007/08 collapse in the market, seemingly put pay to any sense of loyalty to the firm. The faith he had in the work carried out on his behalf apparently went out the window as he sought out a way to recover his losses.
A further word of caution relates to the increasing incidents I have noted of claims arising from a ‘casual’ piece of legal advice given to a client, free of charge as added value. A recent claim involved a professional being sued over the advice, or alleged lack thereof, given in relation to a guarantee. The solicitor advised his client not to act as guarantor on a loan for family members who were in financial difficulty. The client was undeterred, payment default followed, with the solicitor sued for alleged failure to advise in accordance with the principles established by Royal Bank of Scotland v Etridge  UKHL 44.
Another case involved a solicitor drawing up a basic building agreement for his client. The other party to the agreement was again a relative of the client. Financial difficulties for the relative meant financial losses for the client and proceedings were issued against the solicitor for failure to check if there were any charges over the site. No file was created or bill raised in either case, but professional negligence claims still ensued.
“Keep yourself right” is a piece of advice given for many situations in life for a very good reason. Ultimately, as professionals, we should focus on not getting more than we bargained for from clients. We must have a demonstrable record of enquiries made, advice given, and actions taken on behalf of each and every client, irrespective of the background to the relationship, or how casually the advice was sought out. This is of the utmost importance when dealing with professional negligence claims down the line and not least when facing the additional challenges in proceedings brought by a litigant in person.
Lester Doake is Senior Partner at McKinty and Wright Solicitors, Belfast. He leads an award-winning team of defence litigation and professional negligence specialists. McKinty and Wright are ranked band 1 for personal injury defence work by Chambers, with Lester ranked as a ‘Leader in his Field’ in Chambers’ 2017 edition. The firm’s professional negligence specialists are instructed by individuals, defence organisations and insurers, providing professional indemnity legal services to legal, medical, property and finance professionals. Acting for master policy insurers, solicitors’ negligence claims are a particular area of expertise for Lester.
Lester can be contacted on 028 9041 2821 or by email at firstname.lastname@example.org