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GAZETTE
SEPTEMBER 1980
complexions are placed by trained advocates and in
accordance with a set of Rules of which they are
profoundly ignorant, it can be appreciated that the
System supplies a field of legal lore which is
inexhaustable".
Having suggested that the Postal Strike, delay in
raising jurisdiction of the Circuit Court and the
involvement of Juries have all contributed to the present
sorry state, I would now like to suggest that there is much
that Solicitors could do to remedy the position.
If, as is clear, Parties to an Action can be coerced (I
use the word advisedly) into settlement on the morning of
the Court, one must question why these settlements
cannot be arranged long beforehand. The responsibility to
a litigant for the handling of an Action rests firmly with
the Solicitor who is solely answerable to the Client. How
that duty is discharged may ultimately determine whether
the case ends up as a further addition to the already long
Court lists. There is no reason why the Solicitor (other
than one of very junior experience) should not be in a
position to determine whether or not his Client has a good
case. The view is reached on assessment of the
information given by the Client and by witnesses or
professional persons such as Architects or Engineers.
Such assessment is after all, the daily task of Insurance
Claims Staff who do not claim the same professional
status as Solicitors. On the
question of value, the
Solicitor is in a better position to decide the value of the
claim as he has the advantage, not shared by Counsel, of
having met the Client on a number of occasons and
therefore being in a position to assess the effect of injuries
on that person.
Instead of adopting this responsible role, Solicitors rely
far too heavily on Coun s e l. This dependency is
undesirable, as it creates a totally unbalanced relationship
between the professions. The relationship should be one of
mutual respect but we find that often Solicitors are treated
in the most cavalier of fashions by Counsel, as
demonstrated by inexcusable delays and abandonment of
Briefs at the last moment. The balance needs to be
adjusted and I would like to suggest some ways in which
this can be done.
Negotiations
I regard this as the most important area in which a
Solicitor can be effective to the best interest of his Client.
Negotiations for settlement often do take place and
sometimes are successful. In my experience however,
discussions are often one-sided with the Insurer making
most of the running. There is nothing more frustrating
than having a realistic offer turned down without a
counter proposal. I feel that good manners alone demand
a meaningful response. Often, the reaction stems from
advice given by Counsel who may offer an inconclusive
view or alternatively, suggest a figure which is totally
removed from reality. It is not in my view normally
necessary to consult Counsel in the first place but having
done so, the view cannot be totally ignored and indeed,
the Client may have to be advised of the content of the
Opinion. If however, the figure mentioned is an unrealistic
one, then the scene is set for a protracted delay and a final
confrontation on the morning of the Court. No doubt at
that stage, the miracle will be performed and a settlement
arranged. It is surprising how many reasons can be found
to justify the taking of less or the giving of more as the
case may be. Often at that stage, the view of Counsel
given 2 or 3 years beforehand appears to be vindicated
but I will discuss this aspect later and suggest that in fact
this is merely an illusion.
Day to day conduct of the case
It is surprising how much reliance is placed on Counsel
during the normal processing of the case. May I take as
an example, the reaction to an Agreement which I
negotiated with the Professional Purposes Committee of
the Law
Society
and
which was
subsequently
recommended to Members by the Council. This related to
the exchange of Medical Reports. The Procedure was
readily adopted by many Solicitors but I know of some
who in no case would release their Client's Medical
Report without first asking Counsel if this should be
done. This in my view, is a complete abrogation of
responsibility and must inevitably reduce the stature of
such person in the eyes of Counsel. Indeed, I am aware of
one case where a Senior Counsel had the temerity to
reprimand a Solicitor for having released a Report.
Drafting of Pleadings
Probably the greatest single cause of delay arises from
the passing of papers between Solicitors and Counsel. It is
unnecessary for me to remind you of the frustration
involved and those of you who invariably receive a
prompt service are indeed favoured. I would suggest
however, that much of the delay is needless as the
Solicitor is competent to draft all the necessary Pleadings
in a normal High Court Action. By doing this it is no
exaggeration to say that as much or indeed more than 12
months could be saved.
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