Lawcovernotes October 2013

Yes it is our theme song.… the value of file notes The client came to our insured solicitor for advice in relation to his work injury. Our solicitor had a number of conferences with him, in which the medical opinions were discussed in detail as was the legislative frame-work relevant at the time. His options were explained to him: the security of ongoing Workers’ Compensation, as against the risks of pursuing a lump sum damages claim. Our solicitor concluded that the workers compensation entitlements were more valuable than the damages claim and advised the client accordingly. On instructions, the solicitor did nothing to pursue any damages entitlements and the client continued to receive his Workers Compensation benefits. Regrettably, there was no written record of any of this on the insured solicitor’s file. Some years later, the client decided he wanted lump sum compensation for his injuries. By that time the limitation period had expired and an award of damages was not available. He claimed against the insured solicitor for failing to advise himof his damages entitlements and failing to issue proceedings within time, ultimately issuing proceedings against him. Had there been detailed file notes of the conferences, the advice given and the instructions received, the claim could have been headed off at the pass and would have gone no further. Indeed it would not have beenmade at all if the new solicitors had access to the file complete with file notes (duly copied prior to handover) at the outset. However the claim ultimately proceeded to hearing. The solicitor had a clear recollection of the particular client and the advice given and was adamant that the claim should be defended. The court however was not satisfied that the solicitor had provided sufficiently comprehensive advice to enable the client to make a properly informed decision. The solicitor was therefore found to have breached his duty to his client. It did ultimately end well for the solicitor as the court found that the Workers’ Compensation entitlements were in fact more valuable than the potential damages claim, so the claimant had suffered no loss as a result of the solicitor’s alleged negligence. But two years of litigation, worry, time spent, and the associated defence costs expenditure, could have been avoided. Decent file notes made at the time, recording the advice that was given to the client at the outset, would have done it. Emma Griffith Claims Solicitor