LETTERS OF EXPLANATION NOT GOOD ENOUGH: SOLICITOR SHOULD HAVE EXPLAINED MATTERS TO THE CLIENT: COURT OF APPEAL UPHOLD DECISION ON SOLICITOR’S NEGLIGENCE

In Procter -v- Raleys Solicitors [2015] EWCA Civ 400 the Court of Appeal upheld a decision at first instance that a failure to give an oral explanation to a client was negligent.  The solicitors could not simply rely on standard form letters.

THE CASE

The defendant had acted for the claimant in an action under the DTI compensation scheme for VWF.  The matter was settled. The claimant then brought an action against the defendant alleging that he had not been advised he could claim damages for loss of services. The claim succeeded at trial and the claimant was awarded £5,539.50 loss of chance by HH Judge Gosnell.

KEY POINTS

  • The standard form letters were inadequate and, potentially, misleading.
  • There were “warning signs” that the client had not understood the matter.
  • The solicitor should have clarified its explanations by discussing the matter with the client.
  • This did not place too onerous a duty on solicitors.
  • If solicitors were to use pro forma forms and letters it was important that they were accurate.

RELATED POSTS

THE GROUNDS FOR APPEAL

  1. Raleys have been permitted to appeal on one issue alone, which is broadly the question whether or not they were negligent in failing to conduct either a meeting or a telephone conversation with Mr Procter in order to satisfy themselves that he fully understood the advice which they had tendered in three letters.

THE LETTERS

The defendant had written three letters, in standard form, to the claimant.

THE JUDGE’S DECISION

  1. The judge observed, at paragraph 25 of his judgment that:-

The first question I need to consider is whether the letters contained negligent advice or were misleading. I have to say the final letter does add some support to the Claimant’s contention that he thought he could only make a claim if he had actually incurred some financial cost. The final letter speaks of “expenses or other losses” and the ability to recover the “cost of any assistance”. I have to bear in mind however that he had already had two opportunities to make a services claim and it is likely that his decision that he was not entitled to make such a claim was made after having received the first letter and certainly by no later than the second letter.”

  1. On the strength of that latter observation, combined with the judge’s acceptance, as Mr Pooles put it, that the first two letters were “not misleading”, Mr Pooles submitted that it was not open to the judge to conclude that the solicitors should have done more to ensure that Mr Procter actually understood the advice he was receiving. I reject this submission, even on the hypothesis that the first two letters were not misleading. The fact that Mr Procter may have decided after receipt of the first and/or the second letter not to make a claim is beside the point. Assuming that Raleys were under a duty to ensure that their client understood the options open to him, that must extend to ensuring that such decisions as he may have made were made on a fully informed basis. Indeed, in fairness to Raleys, I think that they so recognised. In the third letter they expressly drew attention to the circumstance that Mr Procter had previously indicated that he did not (their underlining) wish to pursue “this additional claim.” The only purpose of describing again the circumstances in which such a claim could be made was to give to the client an opportunity to reconsider before it was too late so to do. The problem is that the circumstances in which such a claim could be made were misdescribed in a manner which would have confirmed Mr Procter in his misunderstanding.

THE JUDGE’S CONSIDERATION OF THE STANDARD OF CARE

  1. The judge correctly directed himself that the standard of care required of Raleys was that of the reasonably competent solicitor. He referred to the well known observation of Oliver J in Midland Bank v Hett Stubbs and Kemp [1979] Ch. 384 that a solicitor should not be judged by the standard of a “particularly meticulous and conscientious practitioner… the test is what the reasonably competent practitioner would do having regard to the standards normally adopted by his profession” – see at page 403. The judge also observed that a solicitor should of course be judged by the standard of the reasonably competent practitioner specialising in whatever area of the law the solicitor holds himself out to be a specialist, as pointed out by Douglas Brown J in Green v Collyer Bristow [1999] Lloyds Rep P.N. 798. The judge noted that Raleys held themselves out to be specialists in industrial disease claims and were experienced in handling both claims for miners generally and claims under this particular scheme.
  2. The judge set out his conclusions on this part of the case as follows:-

“26. The next issue is whether the sending of the three letters is sufficient to comply with the Defendants obligation to properly advise their client about his claim. What would a reasonably competent practitioner specialising in this type of work have done? Would he or she send out a series of long standardised letters to their client and expect him to tick the correct boxes on the tick box form to reflect his instructions or should they have a discussion with the client to try to ensure that he has not only read but understood the correspondence. On the facts of this case I have reached the conclusion that the Defendants should have done more to ensure that the Claimant actually understood the advice he was receiving. When a solicitor takes instructions from his client this is a three stage process. Firstly the solicitor must obtain information from the client about the nature of his claim and the facts which surround it. Once the solicitor has all the relevant information he can then give the client advice which is the second stage. The third stage is when the client tells the solicitor what action he would like him to take on the basis of the advice he has received. In this case the information was contained in the questionnaire, the advice was in the initial letters and the instructions were by tick box form. In my view it was reasonably foreseeable that a client such as this Claimant might not fully understand how the system operated and what claims he was actually entitled to make. Whether the particular mistake he claims to have made was foreseeable is not relevant if that mistake could have been avoided by the obtaining of full instructions which would include a meaningful discussion about what the Claimant could and could not do once he became symptomatic.

27. The Claimant had stated in evidence that his education was limited. Even if the Defendants were not aware of this they could have assumed that most miners were not highly educated. Despite what Mr Barber said in evidence it was clear from the documents which were put to him that the Defendants knew there were risks in accepting information from the clients at face value. The Claimant relies on the words of Donaldson L.J. in Carradine Properties v CJ Freeman Co [1999] Lloyds Rep PN 48 when he said “an inexperienced client will need and be entitled to expect the solicitor to take a much broader view of the scope of his retainer and of his duties than will be the case with an experienced client”. There is some indication from the Defendants records that they were regularly experiencing clients who had not notified them of a potential service initially, but changing their minds at a later stage on receipt of further information. At a staff meeting on 3rd December 2003 at which Mr Barber was present the following was recorded:

“DB expressed concern at the rate we are converting offers into services. The procedure that seems to have developed is that where a Claimant changes his instructions at the offer stage we write to him to clarify those instructions. It was agreed that AWE would amend the existing standard letter to make it more robust.

It was agreed that we need to revise the offer procedure. AWE explained that he has a greater conversion rate having spoken to the client. The new procedure which we will introduce will ensure that when we get to the offer stage we will specifically request the client to make contact with the fee earner so proper advice can be given over the phone or in the office. We need to ensure that services are fully explained to the client.”

The implication of this record is that firstly some clients were not initially notifying claims for services when they were entitled to make such claims and that secondly more clients made claims for services if they actually spoke to the lawyer directly about the issue either in person or on the telephone. The phrase “so proper advice can be given over the phone or in the office” is, in my view, telling.

28. There were also some aspects to the Claimant’s case in particular which should have rung alarm bells. Firstly, when he completed the initial questionnaire he left three questions blank. Secondly, in his reply to the first letter he did not make a claim for handicap in the labour market even though he was factually entitled to do so. Thirdly, his staging at 2V 2Sn (late) was one which justified a medical presumption that there were certain tasks he would need assistance with. Fourthly, the Claimant mentioned difficulties with gardening in the MAP1 assessment. Fifthly this was noted and recognised by the lawyer concerned on receipt of the report. Sixthly, a file note on 6th October 2003 appears to recognise a possible DIY/gardening claim. There is no evidence that these matters were taken into account either by amendment to the standard letters or by any attempt being made to specifically discuss the issue with the client. Faced with a client with that staging in my view it was incumbent on the solicitor to at least check whether the factual matrix applied, namely that the Claimant was carrying out certain tasks prior becoming symptomatic which he now needed assistance with. If that factual matrix did apply the solicitor could then give advice to the client that he may have a potential claim, he could outline was the process was, what the prospects of success were and a broad indication of the likely quantum of the claim.

29. I fully accept that it was not the Defendants’ duty to attempt to create a claim where none existed, or to encourage a fraudulent claim. If the client replied to the enquiry by saying that he had never done the tasks concerned or was still doing them without need for assistance then I accept there would be no need to go any further. In my view however it was not too much to ask the solicitor to directly consult with the client to advise him in layman’s terms what a services claim was and whether on the facts that applied to him he potentially qualified to claim. The system set up by the Defendants involving as it did, the extensive use of questionnaires and standardised letters with very little personal contact with the client enabled them to deal with a very high number of claims at limited cost. The disadvantage however of such a system is that it is heavily reliant on the client carefully reading all the correspondence and filling the questionnaires in accurately. It was foreseeable in my view that some clients (particularly these clients) would not fully understand the long and detailed letters and might misunderstand whether they had a right to claim or not with the consequence that potentially valuable claims might never be made when they could have been. The evidence suggests that a number of the Defendants’ clients did not fully understand the right to make a services claim until they actually had a meeting or telephone discussion with a lawyer who would fully explain the subject. It follows from these conclusions that I find that the Defendants were in breach of duty.”

  1. I entirely agree with those conclusions, based as they are upon the premise that the first two letters were “not misleading.” It is of course a mistake to assume that someone who has not had the benefit of formal education beyond the age of sixteen is necessarily lacking in powers of comprehension, but such a person who has thereafter worked as a miner is not likely to have a detailed understanding of the concepts relevant to the availability of compensation, whether at common law or pursuant to this scheme, which was in the relevant respect more generous than the common law. In my judgment the situation here cried out for a short discussion with the client, preferably face to face, but if necessary over the telephone, in order to ensure that the client understood the circumstances in which a claim for compensation, to reflect the inability to carry out, without assistance, routine domestic tasks, could be made. Those circumstances were not entirely straightforward; all the information which the solicitors had suggested that the client was entitled to make such a claim; and yet he had three times passed up the opportunity to pursue such a claim, pursuit of which in his case would have been assisted by the presumption to which I have referred. In fact the telephone conversation which Nicola Allerton had with Mr Procter on 10 November 2003 offered the ideal opportunity to pursue this point. There was a similar opportunity in the telephone call made to Mr Procter by Nicola Allerton on 8 November 2001, early on in the process and only two weeks after preparation of the file note indicating that “there is a potential service claim.”
  2. I would add that, on the assumption that the client was responsible for payment of the solicitors’ fees, taking up the point in the course of these telephone conversations would have been likely to increase the cost to the client by only a trifling amount, if anything. At the hearing I was under the impression that Mr Procter had himself been responsible for Raleys’ fixed fees, and that Raleys would receive a fee in respect of advice concerning a services claim only in the event of a successful claim under that head. Closer perusal of the documents subsequent to the hearing leads me to wonder whether Mr Procter in fact had any potential liability for Raleys’ fees, as the documents seem to suggest that the relevant fees were paid to Raleys by IRISC. For the avoidance of doubt however I reject the notion that a solicitor should feel inhibited from ensuring that his client has understood advice given to him by the consideration that so ensuring might generate a further fee payable by the client. Obviously the question what in any given case a solicitor should do so as to ensure that his advice is understood is a question of fact and degree. There can plainly be no hard and fast rule that it is no part of a solicitor’s duty to test the client’s understanding. I have already pointed out, in fairness to Raleys, that I think that they recognised that point, albeit they did not in my view do sufficient to discharge their duty.
  3. I also reject the submission, advanced by Mr Pooles, that in finding Raleys negligent the judge erred in relying on “generic” matters rather than making findings which were specific to the relationship between Raleys and their client Mr Procter. The judge’s observations at paragraph 28 of his judgment are all specific to Mr Procter. I have already indicated that I do not regard the first point, the failure fully to complete the initial questionnaire, as of great weight, but the other five points are in my judgment particularly telling.
  4. I agree with Mr Pooles that it can be said that the three letters were, in the language of the judge, checking or at any rate enquiring whether the factual matrix applied. The vice in the letters however was that the shape of the factual matrix itself was inadequately described or explained. Even if the first two letters did not suggest that claims could only be made where there had been actual financial outlay, they were far from clear in pointing out to the client that compensation could be claimed where there had been no financial outlay. In fact, as will be appreciated, I consider that the first two letters, particularly the second, were capable of being read as indicating that only financial loss could be compensated. The third letter compounded the problem. If Mr Procter had before receipt of this letter already reached the erroneous conclusion that he could only recover the cost of any relevant assistance, this letter confirmed him in his erroneous belief.
  5. Mr Pooles drew to our attention the difficulties posed for solicitors in modern conditions, where financial constraints may require them to “commoditise” their advice to potential claimants. We know insufficient about the fee structure supporting this scheme to assess to what extent these considerations applied here. Such considerations do however throw into sharp focus the need for standard form letters of advice to be clear in their exposition. The circumstances in which a claim for services could be made were not complex but as I have already pointed out not entirely straightforward. These letters in my view signally failed to give a clear exposition either on the critical question whether gratuitous assistance would attract compensation or, until the third letter, on the fundamental question, not in the event relevant here, whether a reduction in the ability to carry out the tasks short of total inability would be a sufficient basis upon which to make a successful claim. Furthermore, whatever may be the practical and economic constraints in conducting face to face meetings or telephone discussions with clients in claims handling of this nature, it is apparent that in this case there were at least two opportunities to give, without significant additional cost, a straightforward exposition of the circumstances in which a claim could be made, and to follow up the implications of such relevant information as the client had given – difficulty with gardening etc, and the implications of his staging assessment. It is to the solicitors’ credit that their system did generate internal reference to these very matters. To impose liability for the failure to follow up the issues flagged in this way does not, to my mind, involve the imposition of an unrealistic standard. The solicitors were dealing with a client who could fairly be regarded as unsophisticated in the relevant field. The written advice given to him was unclear, and there were clear indications that it may not have been understood. It is not asking much of a solicitor in such circumstances to make sure that his client understands the opportunity apparently being passed up.
  6. It was for these reasons that, after hearing Mr Pooles’ skilful and valiant submissions, I joined in the decision to dismiss the appeal.

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