The Gazette 1979

SEPTEMBER 1979

GAZETTE

when a ready explanation to the client at the time of how the problem has arisen may well have diverted wrath and a possible claim. In litigation of necessity there are delays in forwarding the matter, particularly in personal injury claims, where by reasons of difficulties and medical evidence or the like actions cannot be brought on for hearing as speedily as would be wished. Here again a periodical explanation to the client of the problem will do much to avoid trouble. An adequate diary system You may be interested to hear that in one country it has now been made a matter of professional misconduct for a lawyer to fail to maintain in force in his office an efficient diary system to prevent time barred claims arising. That is not the position here, but there is no doubt that lack of an adequate diarying system with early warning dates of time limit periods is an essential part of any practice where time limits are of importance. While a computer system which can easily be devised to give routine timely warning of all dates of importance can be set up, this may be an expensive luxury in a small practice, but however the diarying system is achieved it is essential to have one apd one that is under the direct supervision of a partner who can check on each matter to see that dates are not going to be missed and claims caused in consequence. Specialist advice The warning here must be that each should accept his own limitations, especially where specialised fields are concerned. For example, in structural surveys if in doubt Surveyors should not hesitate to recommend their client to engage the services of a structural engineer. Equally, Solicitors who should not need to seek the advice of Counsel on normal matters within their own competence should nevertheless never hesitate to advise seeking the expert advice of Counsel, particularly in specialised fields such as Planning Law, Tax and many others, if they are not themselves wholly familiar with what is required. To conclude, it will be obvious that the foregoing comments are in very general terms. It may well be thought that nothing that has been said is other than obvious, and this is, of course, true. Surely in all professional engagements the matter is very largely a matter of common sense and forethought at the time as to the action necessary to provide the client with a satisfactory service. No doubt the conditions in which we live with ever-increasing overheads and similar problems do tend to cause the professional firm to become overburdened with work with the obvious consequential risks of mistakes occurring.-This must be a question for the individual Practitioner, but quite clearly the heavier the workload the more he must ensure that the conduct of his practice is systemised as far as possible to avoid the necessity for over-reliance on memory and the risks that this creates. It will in my view be a sad day if Professional Prac- titioners are forced in order to protect themselves against claims to take measures which lead to the deterioration of the quality of the service which they provide, but there is no doubt that the escalation of claims in recent years due to many causes is one of serious concern to everyone and that if the position is to improve it is not in the field of more efficient insurance but of fewer claims.

of attendance notes, and indeed anything to indicate that the partner concerned has applied his mind to all the aspects of the problem and has reached a balanced judgment, even if with hindsight the decision may be wrong. With some hesitation, therefore, I would like to advocate the use of standard check lists adopted and amended as necessary to form the basis of the file and to show the various steps with dates by which action has to be taken to enable the maintenance of a simple check that each necessary step has been taken. This applies both to contentious and non-contentious work in the legal field, and similarly in connection with, say, valuations, it forms a very helpful piece of evidence to justify the action which has been taken when the matter is considered in Court. Supervision by Principals It is quite remarkable how many claims arise when it is discovered that the individual claimed to have been negligent whether admitted or an unqualified assistant is disclosed as being no longer with the firm against whom the claim is made. It seems as if there may be substantial numbers of those who do not achieve practice on their own account or in partnership who go from one firm's employment to another and, for some reason having left, the firm are the legatees of a problem created by some negligence. Sympathetic as one would wish to be, the fact is that since the ultimate responsibility to the client is that of the Principals of the firm, there usually appears to be some lack of adequate supervision which has allowed the assistant to create the situation without it being detected and remedied at the time. Busy practices with ever- increasing workloads do create great problems for Principals who have little time to supervise the work of their assistants as they would wish. However, the obligation is there to see that the task undertaken has been competently performed, and this in my view is yet a further argument in favour of reducing to writing by a detailed engagement letter and use of appropriate check lists which quickly enable a Principal inspecting a file to see what progress has been and that the matter is going ahead in a proper and efficient manner. Accountants seem to manage this almost as a matter of routine, and on the face of it there is no valid reason why other pro- fessions should not bring their systems into line. While not wishing to encroach on Mr. Clark's address, it seems to me that Surveyors performing valuations and structural surveys will be much assisted by procedures of this kind. Having made this comment supervision remains a problem. Communications with the client As indicated earlier, breakdowns in communications are a fruitful source of problems. Much complaint and misunderstanding arises from a failure of the Professional to keep the client informed of what is happening. Obviously one can only do one's best, and no assurance can be given that a difficult client's every demand can be fulfilled. On the other hand if he is not told of difficulties that have arisen who can blame the client for thinking that his adviser is falling down on the job? Claims arise for loss, such as loss of interest payable on bridging loans because of late completion of a conveyancing trans- action. These are not infrequently blamed on the Solicitor,

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