• Missing a time limit,

• Inordinate and inexcusable delay in prosecuting a claim,

• Failing to properly prepare for and conduct a trial, and

• Under-settlement of a claim. 

Biding my time

Protecting a limitation date is probably the most fundamental obligation of any personal injury practitioner. Mistakes of this kind fall into two categories: failing to issue proceedings in time, and failing to have a summons renewed in time.

With regard to failing to issue proceedings in time, in 2017 in the High Court, in the matter of Teresa McFadden v Andrea Neuhold, the plaintiff alleged injuries arising out of a motor vehicle accident, and had commenced negotiations directly with the relevant insurer. Prior to the limitation date, the plaintiff engaged a solicitor to assume conduct of her claim.

Regrettably, the plaintiff’s solicitor did not make an application to the Injuries Board within the relevant time period. In a decision that is worthwhile reading for practitioners in this field, Barton J had no difficulty in dismissing the plaintiff’s claim on grounds that it was statute-barred.

Of relevance to the court’s decision was the concession by the plaintiff’s solicitor that he “fairly accepted that he was unfamiliar with the procedure for processing a claim with the board”. The court further observed that “a perusal of the client file shows that no note was made of the rapidly approaching limitation expiry date”.

In terms of failing to have a summons renewed in time, in the 2017 High Court matter of Whelan v Health Service Executive and Elizabeth Dunn, the plaintiff alleged injuries arising out of medical negligence.

The personal injury summons, which issued in October 2013, had not been served on the defendants and had not been renewed within 12 months of the issue date. While the plaintiff was initially successful in having the summons renewed at an ex parte application, the defendants brought a later application to have that renewal set aside.

While the plaintiff’s solicitor alleged that the plaintiff would suffer “irreparable prejudice” if her claim was statute-barred, the court disagreed and implied, in clear terms, that the plaintiff had a potential professional negligence claim against her solicitor: “I believe that to be unlikely, since on the facts as known to me she may very well have a remedy, albeit not one against the existing defendants.” 

Another brick in the wall

Applications by defendants to dismiss a plaintiff’s claim on such grounds are frequent. There are many reasons why a claim may be slow to progress: an uncooperative client, a shortage of funding for outlays, and/or difficulty obtaining expert evidence.

In the 2017 High Court matter of Gallagher v Letterkenny General Hospital & Ors, the plaintiff alleged profound injuries arising out of negligence at birth. A personal injury summons issued in March 2007. The matter had not materially progressed over the next decade. The period of delay by the plaintiff was considered to be some eight years.

Among the reasons for delay, the court noted the following: “The solicitor for the plaintiff has frankly admitted that his small one-man practice cannot carry the cost of further medical reports, which he estimates at €15,000 at a minimum.”

The court was unambiguous in finding that a solicitor for a plaintiff has a duty to advise his/her client how an inability to fund expert reports may damage his/her claim.

“It is true that the plaintiff is entitled to his own choice of legal representation, but if his solicitor cannot represent him, the plaintiff is entitled to know the extent to which the inability of the solicitor for the plaintiff to act is likely to damage his claim.”

These decisions sound as a warning bell to any personal injury practitioners with stale claims gathering dust in their office. Move the matter along with great haste or face the risk of strike-out and the consequences that follow.

Us and them

The 2016 Court of Appeal matter of Vesey v Kent Carty & Anor is a particularly alarming example of a plaintiff turning against his own solicitors. It should be remarked that the plaintiff’s solicitors were not found to have breached any professional standard in its representation of the plaintiff.

Notwithstanding, the Court of Appeal provided some useful commentary upon the standard of care expected of a plaintiff’s solicitor: “That standard required the respondent to ensure, in as far as possible, that the appellant’s claim (both relating to the extent of his injuries and his consequential loss of earnings) be advocated in court, that the appropriate witnesses be called to give evidence, that witnesses called on behalf of Bus Éireann be cross-examined and/or challenged in order to ensure that the appellant’s claim is vindicated as far as possible, and, in general terms, that the appellant’s instructions be complied with.”

Money

Another scenario where a practitioner may find himself/herself exposed is the settlement of a claim below reasonable value. As claims of this kind are uncommon in Irish courts, some guidance is available from our counterparts in England.

'Another scenario where a practitioner may find himself/herself exposed is the settlement of a claim below reasonable value

In Hickman v Lapthorn (2005), the plaintiff successfully brought a professional negligence action against his solicitor and barrister on grounds that his prior personal injury settlement did not take into account the full extent of his injuries. The court set out the duty of a solicitor to speak up when it was clear that the settlement on offer was not grounded in the reality of the plaintiff’s circumstances.

While the court acknowledged that the solicitor was very much “second in the legal team” as compared with counsel, “it was her duty to intervene if she saw something going wrong”.

Welcome to the machine

Case law reveals some key steps that practitioners should build into their office procedures in order to avoid getting into difficulty in the first place: 

• Diarise all key dates (Neuhold, Sports Travel International). This step cannot be overemphasised. Such dates include Injuries Board authorisation dates, limitation dates, and summons renewal dates. When a task is complete, proceed to set a new date with the next required task on the file.

• Mark limitation dates on the front of each file (Neuhold). An obvious but often forgotten step.

• During any change of office, premises or partnership restructures, take particular care with regard to file movement and responsibility (Neuhold, Carroll v Kerrigan & Anor).

• Don’t try your hand in areas of law with which you are unfamiliar (Neuhold).

• Ensure your client agreement deals comprehensively with outlays; how much they might be and who is responsible for them (Carr v O’Gorman and Gallagher v Letterkenny General Hospital).

• When declining to act for a potential client or ceasing to act for a client, ensure he/she is provided with written notification of any key limitation dates and the consequences for failing to meet such dates. If it is your opinion that a potential client does not have a stateable case, emphasise that another solicitor may have a contrary opinion (Kennedy v Health Service Executive & Ors).

• Investigate all possible injuries and all heads of damage, particularly future loss of income (McLaughlin v McDaid & ors). If a claim is not being pursued for a certain head of damage, ensure your client understands the reasoning. 

• Choose your clients carefully: beware of clients with vexatious characteristics (Vesey). 

• Don’t be afraid to disagree with counsel – solicitors have a duty to speak up if counsel is getting it obviously wrong (Lapthorn).

• Ensure clients receive written advice as to liability and quantum prior to any consideration of compromise.

• Wherever possible, recommendations of compromise and client instructions should be in written form. Where matters settle at the steps of the courtroom, written instructions are almost impossible. In such circumstances, when advising a client verbally, ensure counsel, a trainee, or a colleague is present to witness the advice given and instructions received.

• In claims for minors, where the injury has caused symptoms that may interfere with work capacity, give serious consideration to delaying the prosecution of the claim until the claimant reaches the age of majority. It is much easier to advise upon future economic loss when a claimant reaches 18 and has chosen a career path.

• Record all client interactions. If your handwriting is illegible, have your diary notes typed. Contemporaneous note taking may be crucial if a client alleges that you failed to heed his/her instructions.

• Ensure that a file review system forms part of your standard office procedures. If supervising the work of junior solicitors, ensure time is set aside on a regular basis to review their work. If acting as a sole practitioner, don’t be afraid to ask questions of colleagues. A fresh set of eyes can often quickly spot a problem and solution.

Comfortably numb

No solicitor is flawless. The law does not require perfection. The law acknowledges that we work “in an environment where decisions and exercises of judgement have to be made in often difficult and time-constrained circumstances” (Arthur JS Hall v Simons).

The focus of solicitors’ practices should be to create an environment where mistakes are as few as reasonably possible.

Creating that kind of environment requires a work culture where it is acceptable to admit mistakes. The sooner a mistake is identified, the easier it is to remedy. Consider regular meetings of professional staff to discuss ‘near misses’.

Don’t just learn from your own mistakes or ‘near misses’ – learn from those of your colleagues too.

The case law shows that much of the damage can be done when a mistake is ignored, rather than acknowledged and dealt with at the earliest opportunity.