Put it to the panel?

Professional negligence claims are complex, yet little use is being made of the Society's Pursuers' Panel, set up to help clients alleging negligence by a solicitor. Some panel members discuss why

9th September 2019 | Peter Nicholson

What would you do if a client came to you with a complaint of negligence against another solicitor? If inclined to run it yourself, do you know the necessary steps, and who to deal with? Are you confident of your client’s case, and of achieving an early settlement?

The questions are posed because RSA, the lead insurers under the Society’s Master Policy, have reported that frequently claims are being brought by “dabblers” – solicitors who have no expertise in professional negligence claims, who are consulted by a longstanding client and decide to act for them. And due to that lack of expertise the claims can be protracted and not well presented. The client potentially loses out – again.

It’s an odd situation, because the Society itself maintains a panel of specialists whose particular role it is to act in such cases, providing the approach that is often needed to restore the client’s faith in the solicitors’ profession. Yet according to RSA, only about 2-3% of claims intimated to them are handled by panel members.

It may be that the existence of the panel is not as widely known as it should be, even to solicitors. True, it is not that easy to find on the Society’s website (go to client protection, then “how solicitors are insured”, and scroll to the foot of the page). But it has been on the go since 2002, and advertises from time to time to add to its strength – originally three, currently seven members.

Where have the claims gone?

“The impression we got was that RSA would like to see a greater focus on the Pursuers’ Panel and to have more claims handled by members,” reports Iain Nicol of Balfour + Manson, one of the founding members. “Back in the first few years we were dealing with maybe 20 to 30 cases a year each. Now it’s lucky to be a dozen cases a year.”

Various reasons have been put forward why that should be. Tim Edward of Dentons, another longserving member, suggests that one factor is better risk management across the profession, though that does not explain the number of claims brought through other solicitors.

Edward also believes the creation of the Scottish Legal Complaints Commission has much to do with it. “Most claims in my experience start out as complaints, and in 2002 that started with a call to the Society. Most approaches I had were referred to me by the Society.”

It therefore fell to Stephen Blane, another longstanding member, to discuss with the Commission whether it can do something to signpost the panel in cases where the complainer may wish, or need, to consider a negligence claim as well as a complaint against the solicitor. The Commission itself can of course make much higher awards than the Society could as complaints handler, though few of these approach its upper limit.

Then again, it may simply be that solicitors are more willing these days to act against their own kind. “I got some referrals previously from firms who were just uncomfortable doing this, but I suspect commercial pressures make firms increasingly less likely to turn away work for that type of reason,” Edward reports.

Not for the novice

What can go wrong if they do? According to Nicol, it could be not being focused on the test to apply, and/or on the evidence that will be needed. “They don’t realise the need to get the Hunter v Hanley report, or they don’t ask the questions, don’t investigate the claim in the way it needs to be investigated, and the allegations presented maybe are not as appropriate as they should be.

“There are some lawyers who are exceptional at this line of work, but there are those who are less experienced who don’t know the ins and outs of professional negligence. They might get there in the end, but it takes an awful lot longer because RSA keep having to go back to them for more information or clarification, and we find cases end up having to be litigated needlessly because time runs out and they are not resolved when they should be.”

One developing area he highlights is the failure to advise a client of available options, in light of the Montgomery medical negligence case on informed consent. “The view we take is that that applies equally to other professions, not just doctors. So if a solicitor fails to advise a client on what options might be open to them, and there are consequences, we take the view that the same principle applies, and there is judicial authority now for that.”

Edward instances the law on prescription. “That has recently undergone great upheaval (Gordon’s Trustees v Campbell Riddell, with some amending legislation to follow) and the first and often not straightforward question to address with clients may well be working out what is the prescriptive period commencement date. If one gets that wrong, there are immediate consequences in negligence.”

This year alone, Blane has been instructed in two separate claims against a solicitor “who tried to pursue a professional negligence claim but made a total mess of it, leaving the client worse off than before”.

Dealing with insurers

The panel also claim a track record in settling cases without litigation. “I think all the panel members have good working relationships with the claims handlers at RSA, that have been built up over the years,” Nicol affirms. “RSA have their own claims philosophy that they seek to adhere to in terms of swift resolution. We find they do take a pragmatic approach, and it is only if they refer cases to their panel solicitors that things can become a bit more protracted.

“They are not the type of claims handler that will drag things out needlessly or litigate for the sake of litigating. I don’t know whether the inexperienced have the same desired result, but because RSA know what they are dealing with, and that we know what we are doing on these claims, they are amenable to having that discussion to get things resolved at an early stage. That has always worked in clients’ favour.”

Blane agrees: “The point is that the panel are all experienced in dealing with these claims and, by and large, we have a decent working relationship with the Master Policy insurers and their panel. We can deal with claims more effectively and more efficiently, which saves time and money all round.”

Sometimes the client just has to be advised that success is unlikely, which also may not be immediately appreciated by the less experienced. “There are a decent proportion of enquiries that we sift out and take no further,” Nicol confirms. “Sometimes you can tell that after the initial meeting with the client to explain their position; sometimes there is clear negligence but no loss suffered and you then have to advise them to go down the SLCC complaints route. And I think that’s one of the benefits RSA sees in the panel, because it might be that some dabbler will intimate a claim that is either spurious or really has very poor prospects of success, and wastes time and effort in trying to pursue something that is never going to succeed.”

Money matters

But the most significant limiting factor on claims is money, as Edward confirms. “Legal aid financial restrictions cut out most of the claimants I come across. Speculative actions with ATE cover can work, but by the time one allows for success uplifts and insurance premiums, they only really work for more valuable claims (more than £100,000 anyway).”

Likewise, Nicol confirms that legal aid rates preclude taking cases at those rates, because of the complexity and responsibility involved. “Unless liability is absolutely clear cut, clients are being asked to fund the initial liability report to see whether that is supportive. That can often cost £1,500 or more, and a number will say ‘I just can’t afford that.’ And they can’t get their case off the ground.”

As a result, one thing the panel has discussed is a contingency fund designed to provide the initial funding to investigate professional negligence claims to that extent. Who would fund it and who would administer it is open to debate. It has not yet been taken up either by the Society or RSA, and Edward and Blane both recognise it is a contentious idea. Nicol however intends to press the case – “because access to justice is a hot topic at the moment and I would like to get some kind of progress made on that just to help out those who are looking to get a lawyer to take on their case”.

At the end of the day the panel is essentially there to help anyone, whether agent or client, pursuing a solicitor negligence claim. Members are willing to provide advice, or an expert opinion, even if not instructed to take over the handling of a claim – and there is the broader benefit of underpinning public confidence that their affairs will ultimately be properly handled. As Edward puts it, “The Pursuers’ Panel will never be the only resource to do these claims, and there are many other litigators who are experienced and expert in this area, but the panel is a good starting point.”