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GAZETTE
SEPTEMBER 1979
ignorance of the law or of changes in the law. Surprisingly
statistics show that this is not so, and that the problem lies
in other areas. These relate in the main to what is termed
incompetence which may be described as a failure to
perform an efficient service by taking the correct action at
the right time, or for taking the wrong action in a given
situation. Connected with this is the failure to observe
time limits, thus barring the client's remedy, and finally it
is plain that there are a significant number of claims
which are largely if not wholly without merit and which
arise either from unreasonable behaviour on the part of
the client or are due to a lack of communication or
explanation to the client by the Profession. Professional
persons have tended to specialise in certain subjects in the
discipline in which they are trained, and it is worth
making the point that one should not be too proud to seek
advice from others where a problem beyond the pro-
fessional man's normal professional competence arises.
It is often overlooked that the professional person is
not a guarantor of his performance in any circumstances,
and in undertaking an engagement he gives no warranty
to this effect. The standard of care he is required to
exercise was defined as long ago as 1838 by Tindal C. J.
in
Lamphier
v.
Phipos
in the following terms:
"Every person who enters into a learned pro-
fession undertakes to bring to the exercise of it a
reasonable degree of care and skill. He does not
undertake if he is an attorney that at all events you
shall gain your case, nor does a surgeon undertake
that he will perform a cure; nor does he undertake to
use the highest possible degree of skill. There may be
persons who have higher education and greater
advantages than he has, but he undertakes to bring a
fair, reasonable and competent degree of skill."
This statement of the law has now stood the test of time
for 150 years and recent decisions such as
Duchess of
Argyll
v.
Beuselinck
(1972) 2 Lloyds Reports 1972 (a
case against a Solicitor), and
Greaves A Co. v. Baynham
Meikle A Partners
(1974) 1 W.L.R. 1261 (a case against
consulting engineers), considered whether the pro-
fessional person holding himself out to be a specialist in
some field owed a higher duty than that of the average
competent expert. An earlier case of
Bolam v. Friern
Bar net Hospital Management
Committee
(1957) 1
W.L.R. 582 also considers the point. As I understand tfye
position it is that if the claim is based in tort in negligence,
the standard of care upon which a case will be determined
is a matter of fact to be decided on,the evidence laid
before the Court on trial. If, however, the claim is
advanced as a breach of an implied contractual duty and
thus in contract, then liability is a matter of law to be
ruled upon by the Court.
Those other than lawyers offering a professional
service are required to have a working knowledge of the
law applicable to the service they undertake for their
clients, and clearly if they do not possess this they should
take appropriate steps to make this clear to their client at
the time and tender the appropriate advice to him.
How then apart from an adequate knowledge of the up
to date law on a subject, should the professional person
safeguard himself and his partners also against an undue
exposure to claims for professional negligence?
The following comments may be glimpses of the
obvious, but they appear to be by no means universally
appreciated
The basis of die engagement to perform a service
A number of years ago Accountants who suffer as
much as anyone from claims for alleged negligence,
adopted the practice at the outset of the engagement of
setting down in writing exactly what service they were
undertaking to provide and what would be excluded. For
example, in audit work, a written programme would be
drawn up and the client would be informed in writing of
the terms of the engagement for the avoidance of doubt.
This is not in my experience commonplace in other pro-
fessions, and since many claims stem from misunder-
standing between the client and his professional adviser of
exactly what the latter is undertaking to perform, I believe
there is much in favour of Solicitors, Surveyors and
others writing to their clients at the time they accept an
engagement indicating what they are undertaking. Quite
apart from informing the client, such a written basis of
engagement is a useful reminder of what has been under-
taken.
By way of example, it is generally known that one of
the bigger problems confronting Solicitors arises under
Part II of the Landlord and Tenant Act 1954. Notices are
not served in time or there is a failure to make application
to the Court, and in consequence the client loses and
claims that the failure is the responsibility of the Solicitor.
No doubt faulty office procedures are responsible in part
for dates being missed, but nevertheless numerous cases
arise through lack of any clear understanding between the
client and his Solicitor as to who is responsible for taking
action in due time. Often in connection with Leases the
Solicitor has no further obligation after completion of the
transaction and yet the client considers that when a Rent
Review Clause is coming up the Solicitor automatically
should take action, although not specifically instructed to
do so.
The performance of the engagement
Under this heading a number of different types of
problem arise. In a conveyancing transaction much has
been made of the numerous steps involved in, say, the
purchase of a house.
How many files of Solicitors indicate for the record
that all the numerous possible steps required to provide
the client with what he is expecting to receive have been
taken, or at least have been given due consideration and
decided to be unnecessary? When an auditor is sued he
has his audit working papers available to back up his
judgment in giving an unqualified report on the accounts
he has been auditing. The papers will record the steps
taken, the queries that have arisen on various aspects of
the account, the explanations received, and finally one
normally finds evidence of a review of the work of the
audit staff by the partner in charge showing due
consideration has been given to all aspects of the work
before the report has been prepared and issued to the
shareholders on those accounts.
Obviously one does not wish further to increase the
heavy burdens on all professional firms, but in their own
protection it seems reasonable to suggest the adoption of
similar routine systems by Solicitors, Surveyors and
others, whereby when subsequently litigation ensues the
file contains adequate written records to justify the
various steps which have been taken and provide power-
ful support for the oral evidence which has to be given on
the trial. So often files contain inadequate records by way
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