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John Greenbourne: the dismissal of another VWF Professional Negligence appeal

Procter v Raleys Solicitors [2015] EWCA Civ 400

In a judgment handed down today, the Court of Appeal (Tomlinson, Gloster and Kitchin LJJ) dismissed the appeal brought by Raleys against the trial judge’s finding that the claimant, Mr Procter, had decided not to bring a services claim (under the Government scheme devised to compensate miners who had developed Vibration White Finger as a result of using vibratory tools) because of their negligent advice. A services claim was a claim that the man could no longer without assistance carry our certain types of household tasks which he had previously done himself.  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.

This was the second case in which the Court of Appeal heard an appeal by Raleys against a decision that they were liable to a client for failing to advise properly in relation to a services claim under the scheme (the first being Raleys Solicitors v Barnaby [2014] EWCA Civ 686).

Raleys appealed against the trial judge’s finding that they were in breach their duty of care, the question in the Court of Appeal being broadly 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 standard form letters. Mr Procter’s case was that he had been misled into believing that he could not claim unless he had paid other people for the services, so he believed that he could not claim if his family had helped him without payment. The judge had found that only one of the letters was misleading and that it had not played a part in Mr Procter’s decision not to claim. The Court of Appeal considered that one of the letters not criticised by the judge was “at best unclear” and that the other was “positively misleading” on this point.

The Court applied the established standard of care of what the reasonably competent practitioner, specialising in the relevant area of law in which the solicitor holds himself out to be a specialist, would do having regard to the standards normally adopted by his profession. It held that the situation 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. There were in fact two telephone conversations with Mr Procter which were opportunities to do this but they were not taken.

Although in this case it seemed that the client was not under any potential liability to pay Raleys’ fees, the Court rejected 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.

Although financial constraints on solicitors may require them to “commoditise” their advice to potential claimants, standard form letters of advice have to be clear in their exposition.  Raleys’ three letters were not. Raleys were further negligent in failing when they were speaking to the client to avail themselves of the opportunities they had to give 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.

In summary, the Court of Appeal’s reasons for dismissing the appeal were as follows. The written advice given to the claimant was unclear and misleading. There were clear indications that it may not have been understood and it is not asking much of a solicitor in such circumstances to make sure that his client understands the opportunity apparently being passed up.

The appeal was dismissed.  As the Claimant had made a Part 36 offer to settle the appeal, Raleys were ordered to pay (a) his costs on the standard basis up to 21 days from the date of the offer, (b) his costs thereafter on the indemnity basis with interest of 10.5% (base rate plus 10%) on those costs and the damages awarded at trial, (c) a penalty of 10% of those damages pursuant to CPR 36.14(3)(d)(i).

John Greenbourne appeared for the successful Respondent, led by Jonathan Watt-Pringle KC.

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