Lawcovernotes December 2016

When the file of a solicitor facing a claim is shoddy or incomplete, it is difficult to defend the claim. In such situations, the question is often whether the solicitor’s version of events is more believable than that of the client. The solicitor who relies on their “usual practice” or what they “would have done or advised” will often fare poorly in court against the client adamant about the underlying facts. To have a real prospect of defeating the claim, the solicitor must show tangible evidence in the form of a complete and orderly file, including details of the retainer, written advices and file notes. While it may seem perverse to solicitors, in contested matters the courts tend to favour the firm evidence of a claimant to that of a solicitor who cannot support their evidence with documentation. The unfortunate outcome of such matters is that Lawcover must sometimes settle the claims on a compromised basis to avoid facing a more expensive outcome via a court hearing. This occurred in a claim which Lawcover recently settled at mediation. The claim against the solicitor was that they had failed to properly convey to and advise the client about a settlement offer in a compensation claim. The compensation eventually paid was less than the earlier offer. The solicitor was “certain” that they had fully canvassed the offer in conference, but their file note was ambiguous and there was no written advice to the client about the offer. Although there was no reason to doubt the solicitor’s version of events, without written support, the advice to Lawcover was that defending the claim was likely to be unsuccessful if a court were to decide between the competing versions of events. Solicitors understandably regard this relatively common outcome as unsatisfactory, although they acknowledge the need for a practical compromise in claims resolution. It also gives Lawcover no satisfaction to settle such claims which could otherwise be defended. It is a sobering statistic that almost 10% of Lawcover’s claims fall within the category of “solicitor not negligent, but cannot prove it”. The message that solicitors should take away from this is the importance of keeping an appropriate paper trail of the retainer, advices and file notes. Tony Reynolds Claims Solicitor 9.