Enhanced Duty of Care consideration, how it could impact Solicitor Professional Indemnity Insurance | Jensten Insurance Brokers
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Enhanced Duty of Care consideration, how it could impact Solicitor Professional Indemnity Insurance

The ‘Duty of Care’ to act with reasonable skill and care forms the basis upon which a Solicitors competency is assessed in any given situation. This guiding principle establishes the framework for Professional Indemnity Insurance for Solicitors.

In a recent case the Court of Appeal found that a Solicitor has not taken “all reasonable steps” and therefore didn’t fulfil their Duty of Care.

Here, Michael Murray, Senior Claims Handler for Specialty Lines and Nigel Bennett, Account Director and Legal Practices Specialism Leader discuss the impacts on this enhance Duty of Care for Solicitors Professional Indemnity Insurance.

 

Midlands firm failed to ‘energetically chase’ Manchester Civil Justice Centre, Court of Appeal rules”

As reported  in December in the Law Society Gazette the Court of Appeal found that the Firm of solicitors involved failed to take “all reasonable steps” to obtain a sealed claim form from Manchester Civil Justice Centre (MCJC).

The solicitors were acting for a client seeking a planning statutory review from South Staffordshire District Council (SDC), whilst they filed their client’s claim, with the MCJC on 18 April 2023, with a deadline for service on SDC of 4 May 2023. The Court of Appeal accepted this was a reasonable time frame and advised that they “would expect a competent and properly staffed court office to seal and issue the claim form within two working days”.

However, come 2 May 2023, two days before the deadline, a sealed claim form had still not been issued by MCJC, and the solicitors chased this by email.

After the 4 May deadline had passed, the solicitors chased MCJC at least 10 times between 10 May and 14 June 2023 and despite a promise on one occasion to do it “after lunch” the sealed claim still had not been provided.

Despite the clear failing of MCJC, the Court of Appeal, still held the solicitors responsible, advising that they had failed in their email to MCJC, on 2 May 2023, to make a reference to the deadline.

Classifying this as a “significant failure” Lord Coulson went onto say that court offices “will need help from the claimant’s solicitors to know which documents are a priority and why” and that “On occasion, they will need to be energetically chased.”

However, what will make the Court of Appeal’s decision even more difficult for Solicitors to swallow is the fact that in August 2023 HHJ Nigel Bird, the designated civil judge at MCJC, asked via the Manchester Law Society for users to “please think very carefully before ringing the court with general enquiries?”.

 

Solicitor Professional Indemnity Insurance Implications

Whilst the case in front of the Court of Appeal was not primarily about the conduct of the solicitors, the findings, unless challenged at the Supreme Court, leaves the door wide open for a claim for negligence against the solicitors from their client.

The effect of this case therefore is to indirectly set a new clarification for the level of care a client can expect from a Solicitor.

In this case chasing, a Court 2 days before a deadline, without making them aware of the urgency was classed by Lord Coulson, to be a “significant failure”, indicating that he (and by extension the Law of England and Wales) expected a reasonable solicitor to take greater steps than this.

These could amount to:

  • making enquiries sooner,
  • making more numerous enquiries,
  • advising parties of any impending deadline, when chasing a response etc.

Unfortunately, an indirect result of this decision will, almost inevitably, be an increased number of claims against solicitors from disappointed clients, in any circumstances where the client can make out a case that a third-party act or omission could have been prevented had their solicitors chased more or provided more information etc when chasing.

This could lead to an increasing number of speculative claims, from parties seeking to exploit this ruling to obtain at least a contribution to any alleged loss or damages.

 

What can solicitors do to mitigate this risk?

As with most of these types of situations, prevention is more effective than a cure.

We would recommend.

  1. Ensuring you have good diary management regarding deadlines and plan to chase up third parties in good time.
  2. What is considered good time will vary depending on the circumstances. In cases such as the one above, that may look like chasing from circa two weeks out from the deadline, following this up after 5 working days, if no satisfactory response is received, then on alternat working days, before chasing daily from three to five working days out.
  3. Use multiple different mediums to follow up. E.g. if two or more emails have got no response, try calling, sending a letter by post, and/or an alternate email address.
  4. Provide up to date and accurate deadlines and time frames when communicating with parties, in this case a chief criticism placed on the firm was not making the Court aware of the urgent deadline, when they chased the matter up, two days before the deadline.
  5. Record and keep records of all your efforts, so that if the worst does happen you can quickly and easily identify and provide evidence of the reasonable steps you have taken.
  6. Finally, as always, most of these measures appear to be common sense, but often one of the biggest challenges solicitors face is having the time and resources to take and record the appropriate actions, it is fundamental therefore that firms seek to ensure staff have the time, capacity and facilities to take appropriate steps.

Author

Nigel Bennett
Account Director

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