Karim Mohamed of Mayo Wynne Baxter explains how to avoid a professional negligence claim
While risk management has undoubtedly improved, there are still times when professional advice goes wrong. As a professional negligence solicitor, I’ve spent 30 years helping clients with negligence claims against all kinds of professionals – including solicitors, accountants, architects and surveyors. Many share patterns and with the 20:20 vision offered by hindsight, all could have been avoided.
This is cold comfort to those facing expensive litigation, but for everyone else there’s good news. There are warning signs to look for and general rules that offer protection.
So, to make sure you never have to meet someone like me in court, here are my tips to avoiding professional negligence claims.
1. Clarify what you will do
I often hear the phrase “...the client must have known what we were doing”. It’s easy to lose in translation the exact particulars of what you’re prepared to do for a client. Not least because all of us can be guilty of using jargon on occasion. Spell out what you are going to do in plain English. Clarify what you need the client to do too. This is simple stuff, but causes all sorts of confusion when neglected.
One example came up in a case involving a successful fashion boutique. The shop’s accountant got a letter from the landlord giving notice of termination but not denying a further lease. There were strict time limits, or the lease would be lost. The accountant simply told his client: “I’ll deal with the lease.” What the accountant meant, and later tried to prove, was that he would acknowledge receipt of the notice, then leave it to his client to instruct solicitors. But that isn’t the way the client understood it.
The time limit expired and the by-now homeless retailer claimed more than £300,000. The case eventually settled but the whole sorry shambles could have been avoided with clarification on either side.
Never make assumptions and check your client hasn’t made any. Guard against ‘mission creep’. Are you doing more, less, or indeed something different from what you were originally instructed to do? Confirm the client’s brief in simple, direct language at the start and remind yourself of it regularly.
2. Watch your emails
The sheer volume of email makes keeping a check on it feel like an impossible task. Yet it’s frighteningly true that grounds for negligence can come at the click of a mouse. A few things can help.
• Decide whether junior staff should be allowed to send emails unsupervised in the organisation’s name.
• Check whether the informality of email has led to vital information being left out.
• Have a clear policy on when to use email and when to go the whole hog and send a letter.
• Advisers rarely send out letters without checking that they are correctly addressed, free of errors and complete with the enclosures. Yet it happens much more often in email correspondence. Read through each email just as you would a letter; printing out if necessary.
• File emails in a proper systematic way.
3. Keep communicating
Misunderstandings are the most common factor in professional negligence claims. The best guard against this is regular communication in plain English.
Once you’ve sent out your brief, how often do you get in touch?
• Consider a maximum time response when replying to correspondence and perhaps a ‘service level agreement’ on timing of responses.
• If anything adverse happens in a case tell the client as soon as possible and explain the options to remedy the problem.
• If you request something from a client make a diary note so you can chase it up if it’s not forthcoming.
• Agree a timetable upfront and make sure the client understands when each stage of the work will be competed. Talk to them if deadlines have to be pushed back and explain why.
• Talk openly with your client and address issues before they have time to fester.
“Misunderstandings are the most common factor in professional negligence claims”
4. The F word
Hands up who gets excited about filing? Me neither; but there are few costlier mistakes than incomplete records.
A client of mine learnt this the hard way when buying a nursing home. She thought she was buying outright, but the seller wanted to retain an interest. Unfortunately, her lawyer went on holiday just before the deal was finalised, leaving the file in a mess. The stand-in lawyer thought the seller’s interest was all agreed so confirmed it. The client knew nothing about this until well after completion.
The client took a negligence claim to court over whether or not she had been told of the seller’s interest and the judge decided in her favour. More than a decade of litigation later, the solicitor eventually had to pay hundreds of thousands for the claim, as well as the legal fees.
5. Who’s minding the shop?
As the last example suggests, holidays and illnesses can lead to vital information falling through the gaps. When an absence is planned, hand cases to a member of staff capable of pushing the matter forward and give them all the information they need. Sometimes you can’t prepare for sudden illnesses, but up-to-date filing makes it much easier for colleagues to pick up where you left off.
• Make a simple checklist at the front of the file of what steps are being taken and what stage has been reached.
• Keep a note of what needs doing and when.
• Have regular file audits
6. Understand your client
Understanding your client’s point of view and how they lik to communicate can help build a strong relationship and avoid misunderstandings. Unfortunately, trust can take weeks to win and seconds to lose, but the stronger an overall relationship is, the easier it is to weather difficulties.
7. The right people for the job
Make sure the people assigned to a client have the experience and qualifications to deliver the right advice. If a junior member of staff is assigned a weighty task supervision is crucial. To take another example, a claim against someone who had driven a lorry into a property came unstuck through an adviser’s lack of experience. It all seemed straightforward at first, with the main point being damages. But an issue came up about the extent of building repairs needed, followed by liaison with experts and technical documents.
The case had been delegated to a junior lawyer ill-equipped for the task who ended up in daily rows with the barrister while experts started to communicate directly with the client. Other experts avoided the case and the parties started drafting their own witness statements.
All of which chaos ended with the lawyers facing a hefty bill for negligence.
8. Whose interest is it anyway?
Confusion over whose interest you represent is another common trap. When a case involves many parties it can be far from simple. An architect instrumental in creating the famous biomes of the Eden project was involved in a case that hinged on this point. His lawyers set up a charitable trust without explaining that this might defeat any expectations of personal benefit. It turned out the law firm was advising on both the interests of the proposed project and the personal positions of the two co-founders. This created a conflict of interest serious enough to support a negligence claim. Damages of close to £2m were awarded.
9. Saying no
Sometimes I hear about a claim that went wrong from the moment a client signed up. Despite the pressures to attract clients and rack up billable hours, there are times when a case costs more than it’s worth.
It may be a situation outside of your experience, the fact that your best advisers are already overloaded with work, or just a niggling doubt about whether you can work with someone.
Whatever the reason, if you’re unsure you can deliver, sometimes it’s better to say no.
10. Put it in writing
Some of my colleagues complain they can’t read my handwritten notes so I tend to type them up myself, as it’s the only way to make sure there’s a clear written record of verbal advice given to clients. If, like me, your handwriting makes the average doctor’s look like elegant calligraphy, typed notes can be the last piece in the jigsaw to avoid negligence claims.
Karim Mohamed is a professional negligence solicitor at Mayo Wynne Baxter LLP. He can be contacted on 0800 87 94 101
