We are all working in challenging times with professionals working remotely and there is the added stress of dealing with the crisis caused by the pandemic together with adapting to working from home.
Some will see an increase in work, others a decrease and for all of us, there are new ways of working. Some will adapt, others are finding it difficult to cope; within the work carried out by the professional negligence team at Mayo Wynne Baxter, we have already seen some professionals taking a much more relaxed approach to work and, together with increased pressure of working remotely, staff on furlough, and reduced staff, mistakes are being made and crucial deadlines being missed. The result is a rise in claims which is predicted to continue through to 2021.
Prior to the pandemic, there was already pressure from new market entrants forcing firms to offer services and prices they cannot hope to deliver. With the pandemic claims involving solicitors now include failing to take adequate instructions particularly with Wills or data breaches and of course the perennial issues of missing time limits.
And that makes it even more important to follow steps to avoid claims. My top ten tips to avoid claims is not a panacea for all Covid related claims. However, as a professional negligence solicitor I’ve spent thirty years helping clients with negligence claims against all kinds of professionals – including solicitors, accountants, architects and surveyors. Many claims 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 particularly in these testing times.
So, to make sure you never have to meet someone like me in court, here is my first tip to avoiding professional negligence claims. New year and hopefully new resolutions to avoid claims; in the course of the next few weeks more will follow:
TIP 1 - Clarify what you will do
I often hear the phrase “...the client must have known what we were doing”.
It’s easy for the exact particulars of what you’re prepared to do for a client to get lost in translation. 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 and 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.
If you need any advice or help, contact Karim.