Pursuers panel advises on professional negligence

It might be an unpalatable idea for many in the profession, but the creation last year of a pursuers’ panel specifically to consider cases of negligence against solicitors has helped demonstrate the profession’s willingness to rectify perceptions that it prefers to look after its own.

The Panel consists of four solicitors selected by The Society on the basis of their expertise in dealing with professional negligence claims.

Since its creation last September, all four members report having an average of about three referrals each week, about half of which have genuine grounds to proceed.

Actionable cases seem to be spread across the spectrum of practice areas, but a common thread seems to be that mistakes are occurring when solicitors are attempting to do more work in the same amount of time, or where due to a fear of turning away clients, they are taking on cases in areas where they lack expertise.

While many cases arise in property transactions, litigation can also cause solicitors problems when parties baulk at the idea of giving evidence in court at the 11th hour, and instead seek a frenetic late agreement.

All of this in a climate of a more demanding and inquisitorial public, who in some instances turn up with lists of potential expert witnesses, and it’s easy to see why the Panel was  conceived.

Alastair Thornton, of A & WM Urquhart in Edinburgh, said: “I think the courts set out a higher standard nowadays than they did 50 years ago, but that reflects public expectation as to the quality of advice and service they would expect from a solicitor.

“We are a profession that provides an incredibly wide range of services to the business community and members of the public across Scotland and frankly it is difficult for someone consulted about a claim of negligence against a solicitor to immediately come to grips with the wide range of areas of practice.

“So we wouldn’t pretend that members of the Panel have expertise across every area of the law but we do have experience in presenting these types of cases and of course we also have access to experts within the profession.”

There is also a suggestion that admitting to having made a mistake is often the hardest part of dealing with the situation for professional people in general. Professional people have high expectations of themselves, which in some instances might look like covering up, but is in fact more reflective of a difficulty in accepting that they have fallen below their own standards. That can make cases hard to settle.

Panel member Iain Nicol from Livingston firm Keegan Walker agrees that even in a clear- cut case, there can “be a reluctance on the part of any professional to put up their hands and admit liability”.

Nicol describes a recent meeting with an advocate who told him that he is regularly asked to offer opinions on solicitors’ negligence.

“I thought to myself, it’s fine for an advocate to offer an opinion on the prospects of success of a claim on the basis of evidence presented to him, but I cannot see how he can offer a professional opinion on whether a solicitor has acted negligently or not because it’s not judging like with like, in a situation such as that it’s like asking a surgeon to comment on a GP. “

All the Panel members agree that it has a vital role to play in filtering out spurious claims, and to act as a point of guidance where clients confuse the role of the Panel with that of the Society’s complaints procedure.

Panel members report that while the member of the public may have cause to raise an issue about the standard of service received, they regularly have to advise that it falls short of an action of professional negligence.

Tim Edward of Maclay Murray & Spens agrees that “most of the people who call me have not thought through whether they have a claim or complaint”.

Most references have come direct from the public, with Panel members only reporting the occasional referral from other solicitors – often in cases where local sensitivities make it difficult for one solicitor to act against another.

“We are not here to tell people to hand their cases over to us, solicitors with varying degrees of experience will run professional negligence claims but one of the benefits for the profession here is that if they run into a problem and they do not know where to turn, the Panel is a source of expert advice”, said Iain Nicol.

As much as the panel treat a negligence claim against a fellow solicitor in the same way as if they were dealing with an architect, doctor or surveyor, there must be an element of extra sensitivity in dealing with the reputation of a member of the same profession.

Iain Nicol said there aren’t many differences from dealing with other professional negligence cases.

“ You look at the cases from the same perspective as you would if it was a medical negligence case. You have to work out what the solicitor should have done and where it has gone off the rails and it has to be bad enough to say that no reasonably competent solicitor would have done that. There are always cases where it has been easy enough to identify negligence but actually showing that negligence has made things worse for the clients may be more difficult.”

Tim Edward said: “Because you are a member of that profession and because of your knowledge of wider issues of law, perhaps it is easier to reach conclusions as to whether there might be a claim but there is also a danger to the extent that you could reach a pre-conclusion without it having the support of an expert in that particular area.”

So how do they all think they are perceived in the profession? Is there an element of the proverbial poacher turned gamekeeper?

 “It is in the interests of the profession as a whole to try and monitor those claims and try and conduct them in the best and most efficient manner. I think we can be of benefit to all sides,” said Tim Edward.

That’s a view echoed by Alastair Thornton. “Surely it is better if a client does have a claim that it be dealt with in a professional and efficient manner by someone who has genuine expertise in that area. It must be in the profession’s interest to have these claims dealt with in the best way possible when they do arise. It is only right and proper that both the profession and the public are assured that when people need advice about how to handle a claim against a solicitor then they should be able to get it from experts. It actually adds to the credibility of the legal profession by its existence rather than in any way diminishing it.”