The Gazette 1980

SEPTEMBER 1980

GAZETTE

complexions are placed by trained advocates and in accordance with a set of Rules of which they are profoundly ignorant, it can be appreciated that the System supplies a field of legal lore which is inexhaustable". Having suggested that the Postal Strike, delay in raising jurisdiction of the Circuit Court and the involvement of Juries have all contributed to the present sorry state, I would now like to suggest that there is much that Solicitors could do to remedy the position. If, as is clear, Parties to an Action can be coerced (I use the word advisedly) into settlement on the morning of the Court, one must question why these settlements cannot be arranged long beforehand. The responsibility to a litigant for the handling of an Action rests firmly with the Solicitor who is solely answerable to the Client. How that duty is discharged may ultimately determine whether the case ends up as a further addition to the already long Court lists. There is no reason why the Solicitor (other than one of very junior experience) should not be in a position to determine whether or not his Client has a good case. The view is reached on assessment of the information given by the Client and by witnesses or professional persons such as Architects or Engineers. Such assessment is after all, the daily task of Insurance Claims Staff who do not claim the same professional status as Solicitors. On the question of value, the Solicitor is in a better position to decide the value of the claim as he has the advantage, not shared by Counsel, of having met the Client on a number of occasons and therefore being in a position to assess the effect of injuries on that person. Instead of adopting this responsible role, Solicitors rely far too heavily on Coun s e l. This dependency is undesirable, as it creates a totally unbalanced relationship between the professions. The relationship should be one of mutual respect but we find that often Solicitors are treated in the most cavalier of fashions by Counsel, as demonstrated by inexcusable delays and abandonment of Briefs at the last moment. The balance needs to be adjusted and I would like to suggest some ways in which this can be done. Negotiations I regard this as the most important area in which a Solicitor can be effective to the best interest of his Client. Negotiations for settlement often do take place and sometimes are successful. In my experience however, discussions are often one-sided with the Insurer making most of the running. There is nothing more frustrating than having a realistic offer turned down without a counter proposal. I feel that good manners alone demand a meaningful response. Often, the reaction stems from advice given by Counsel who may offer an inconclusive view or alternatively, suggest a figure which is totally removed from reality. It is not in my view normally necessary to consult Counsel in the first place but having done so, the view cannot be totally ignored and indeed, the Client may have to be advised of the content of the Opinion. If however, the figure mentioned is an unrealistic one, then the scene is set for a protracted delay and a final confrontation on the morning of the Court. No doubt at that stage, the miracle will be performed and a settlement arranged. It is surprising how many reasons can be found

to justify the taking of less or the giving of more as the case may be. Often at that stage, the view of Counsel given 2 or 3 years beforehand appears to be vindicated but I will discuss this aspect later and suggest that in fact this is merely an illusion. Day to day conduct of the case It is surprising how much reliance is placed on Counsel during the normal processing of the case. May I take as an example, the reaction to an Agreement which I negotiated with the Professional Purposes Committee of the Law Society and which was subsequently recommended to Members by the Council. This related to the exchange of Medical Reports. The Procedure was readily adopted by many Solicitors but I know of some who in no case would release their Client's Medical Report without first asking Counsel if this should be done. This in my view, is a complete abrogation of responsibility and must inevitably reduce the stature of such person in the eyes of Counsel. Indeed, I am aware of one case where a Senior Counsel had the temerity to reprimand a Solicitor for having released a Report. Drafting of Pleadings Probably the greatest single cause of delay arises from the passing of papers between Solicitors and Counsel. It is unnecessary for me to remind you of the frustration involved and those of you who invariably receive a prompt service are indeed favoured. I would suggest however, that much of the delay is needless as the Solicitor is competent to draft all the necessary Pleadings in a normal High Court Action. By doing this it is no exaggeration to say that as much or indeed more than 12 months could be saved. FORMING A COMPANY? Why Worry?

The Law Society provides a quick service based on a standard form of Memorandum and Articles of Association. Where necessary the standard form can be amended, at an extra charge, to suit the special requirements of any individual case. In addition to private companies limited by shares, the service will also form — • Unlimited companies. • Companies limited by guarantee. • Shelf companies, company seals and r e c c d hooks c.-^. .vailable at competitive rates Full information is available from: COMPANY FORMATION SERVICE INCORPORATED LAW SOCIETY OF IRELAND BLACKHALL PLACE, DUBLIN. Tel. 710711. Telex 31219 ILAW EI.

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