The Gazette 1979

GAZETTE

SEPTEMBER 1979

ignorance of the law or of changes in the law. Surprisingly statistics show that this is not so, and that the problem lies in other areas. These relate in the main to what is termed incompetence which may be described as a failure to perform an efficient service by taking the correct action at the right time, or for taking the wrong action in a given situation. Connected with this is the failure to observe time limits, thus barring the client's remedy, and finally it is plain that there are a significant number of claims which are largely if not wholly without merit and which arise either from unreasonable behaviour on the part of the client or are due to a lack of communication or explanation to the client by the Profession. Professional persons have tended to specialise in certain subjects in the discipline in which they are trained, and it is worth making the point that one should not be too proud to seek advice from others where a problem beyond the pro- fessional man's normal professional competence arises. It is often overlooked that the professional person is not a guarantor of his performance in any circumstances, and in undertaking an engagement he gives no warranty to this effect. The standard of care he is required to exercise was defined as long ago as 1838 by Tindal C. J. in Lamphier v. Phipos in the following terms: "Every person who enters into a learned pro- fession undertakes to bring to the exercise of it a reasonable degree of care and skill. He does not undertake if he is an attorney that at all events you shall gain your case, nor does a surgeon undertake that he will perform a cure; nor does he undertake to use the highest possible degree of skill. There may be persons who have higher education and greater advantages than he has, but he undertakes to bring a fair, reasonable and competent degree of skill." This statement of the law has now stood the test of time for 150 years and recent decisions such as Duchess of Argyll v. Beuselinck (1972) 2 Lloyds Reports 1972 (a case against a Solicitor), and Greaves A Co. v. Baynham Meikle A Partners (1974) 1 W.L.R. 1261 (a case against consulting engineers), considered whether the pro- fessional person holding himself out to be a specialist in some field owed a higher duty than that of the average competent expert. An earlier case of Bolam v. Friern Bar net Hospital Management Committee (1957) 1 W.L.R. 582 also considers the point. As I understand tfye position it is that if the claim is based in tort in negligence, the standard of care upon which a case will be determined is a matter of fact to be decided on,the evidence laid before the Court on trial. If, however, the claim is advanced as a breach of an implied contractual duty and thus in contract, then liability is a matter of law to be ruled upon by the Court. Those other than lawyers offering a professional service are required to have a working knowledge of the law applicable to the service they undertake for their clients, and clearly if they do not possess this they should take appropriate steps to make this clear to their client at the time and tender the appropriate advice to him. How then apart from an adequate knowledge of the up to date law on a subject, should the professional person safeguard himself and his partners also against an undue exposure to claims for professional negligence? The following comments may be glimpses of the obvious, but they appear to be by no means universally appreciated

The basis of die engagement to perform a service A number of years ago Accountants who suffer as much as anyone from claims for alleged negligence, adopted the practice at the outset of the engagement of setting down in writing exactly what service they were undertaking to provide and what would be excluded. For example, in audit work, a written programme would be drawn up and the client would be informed in writing of the terms of the engagement for the avoidance of doubt. This is not in my experience commonplace in other pro- fessions, and since many claims stem from misunder- standing between the client and his professional adviser of exactly what the latter is undertaking to perform, I believe there is much in favour of Solicitors, Surveyors and others writing to their clients at the time they accept an engagement indicating what they are undertaking. Quite apart from informing the client, such a written basis of engagement is a useful reminder of what has been under- taken. By way of example, it is generally known that one of the bigger problems confronting Solicitors arises under Part II of the Landlord and Tenant Act 1954. Notices are not served in time or there is a failure to make application to the Court, and in consequence the client loses and claims that the failure is the responsibility of the Solicitor. No doubt faulty office procedures are responsible in part for dates being missed, but nevertheless numerous cases arise through lack of any clear understanding between the client and his Solicitor as to who is responsible for taking action in due time. Often in connection with Leases the Solicitor has no further obligation after completion of the transaction and yet the client considers that when a Rent Review Clause is coming up the Solicitor automatically should take action, although not specifically instructed to do so. The performance of the engagement Under this heading a number of different types of problem arise. In a conveyancing transaction much has been made of the numerous steps involved in, say, the purchase of a house. How many files of Solicitors indicate for the record that all the numerous possible steps required to provide the client with what he is expecting to receive have been taken, or at least have been given due consideration and decided to be unnecessary? When an auditor is sued he has his audit working papers available to back up his judgment in giving an unqualified report on the accounts he has been auditing. The papers will record the steps taken, the queries that have arisen on various aspects of the account, the explanations received, and finally one normally finds evidence of a review of the work of the audit staff by the partner in charge showing due consideration has been given to all aspects of the work before the report has been prepared and issued to the shareholders on those accounts. Obviously one does not wish further to increase the heavy burdens on all professional firms, but in their own protection it seems reasonable to suggest the adoption of similar routine systems by Solicitors, Surveyors and others, whereby when subsequently litigation ensues the file contains adequate written records to justify the various steps which have been taken and provide power- ful support for the oral evidence which has to be given on the trial. So often files contain inadequate records by way

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