CHAPTER ONE – RISK MANAGEMENT
“Simple Procedure is supposed to be simple and not difficult.”;
– Lord Carloway, Cabot Financial (UK) Ltd v Ryan Bell, 21st November 2023
“The angst of a litigation is inversely proportional to its value”;
– a (cynical but shrewd) specialist sheriff in the All Scotland Sheriff Personal Injury Court
This book is a practical guide aimed at solicitors. There have been many books on court procedure but, alas, they have a tendency to pass over the omnipresent dangers of expense and complaints. For instance, it is all very well to write that a party may instruct an expert witness. The practitioner’s initial questions should be; how much will that cost, who is ultimately going to foot the bill and will he be angry about it? Unfortunately, simple procedure possesses certain features which exacerbate the hazards to legal advisors. These are identified repeatedly throughout this book. From a risk management perspective it does no harm to recognise the disagreeable necessity of regarding every potential client as a name on a letter from the Scottish Legal Complaints Commission.
Firstly though, an important distinction requires to be drawn between the institutional client, i.e. a large organisation, and the type who raises or faces maybe one or two cases in her lifetime. The former would include property factors, utility suppliers and vehicle hire companies, where the claims are usually formulaic; only the name, dates and sum due are different. Such business may well be conducted by large legal companies engaging an army of paralegals working from home. As regards the latter type of clientele, many solicitors have had a private client who has a dispute over a breach of missives, a pet, a holiday from hell or a minor collision in a supermarket car park where insurers are not involved. She will look for advice on how or whether to raise an action or may arrive at the office anxiously clutching a recorded delivery envelope containing Forms 3D Timetable, 6A Notice of a Claim, 3A Claim Form, 5A Application for a Time to Pay Direction and 4A Response Form. She may be of the firm view that courts are for other people, not her.
In order to be most useful this book is focussed principally on the latter client because the solicitor who acts there is dealing with a unique and unfamiliar set of circumstances. These may be challenging. In this book it can be assumed that any reference to a client excludes the institutional variety unless the context indicates otherwise.
This book does not deal with the system that was introduced by the Act of Sederunt (Sheriff Court European Small Claims Procedure Rules) 2008 as amended.
It might seem odd to commence a book on simple procedure with some remarks about the law of diligence. However, putting oneself in the shoes of the client makes that topic an obvious and crucial subject for consideration. Litigation and diligence are equally essential components in the one exercise of debt recovery. Court lawyers need to be knowledgeable about both. Diligence is important both at the interim stage and after a decree has been obtained. It is dealt with in the Simple Procedure Rules under Parts 20 Provisional Orders and 15 How to Enforce a Decision respectively.
A simple procedure client – or any litigation client, or indeed any client – wants something tangible or at least concrete; a wad of cash (such as used to be handed over frequently by respondents in the sequestration court in Glasgow), a cheque that will not be dishonoured, a bank transfer of funds, an object or an item of property. He does not want;
- A document telling him that he is entitled to the cash, cheque, transfer or object. He already knew that; he instructed the solicitor in order to gain the cash etc, not to obtain confirmation of the fact that he is due it.
- The solicitor’s bill. By itself, that leaves him poorer than if he had never crossed the lawyer’s threshold.
Any discussion with a client who wishes a solicitor to act for him in a simple procedure case requires that the latter explain some harsh truths and that, from a risk management perspective, there is a record in the file of the warnings having been given. These will include that;
- It is uneconomical to instruct a lawyer, at least beyond the initial stages.
- Suing someone with no money (or no accessible money) is a futile exercise.
- Where the respondent (i.e. defender) is abroad it is probably best for the client to walk away, put it down to experience and be more careful in future dealings.
- Litigation is inherently hazardous and unpredictable. Mistakes occur. If sheriffs were infallible there would be no need for appeal courts.
- Nonetheless, rights of appeal are very limited. Although most court lawyers are able to frame an argument in terms of it’s being a point of law there is nothing to be gained in employing this craft if the point actually hinges on an unappealable factor such as that a witness was not believed. In such circumstances one is simply wasting the time of the Sheriff Appeal Court and costing the client time and money.
- The sheriff might not accept that the client’s evidence or that of the client’s witness is sufficiently reliable or credible. It is very common for someone to go into court and lose. Statistically there are about as many losers as winners. Very few people envisage that they will go into court only to be branded a knave or a fool (sometimes both), but that rude shock befalls someone every day.
- The court will effectively wash its hands of a case once it has decided it on the merits and determined expenses. It will not take any part in enforcement unless actively engaged to do so by the raising of more proceedings. The claimant becomes a creditor and is on his own. Only in the criminal courts does Scottish Courts and Tribunals Service collect sums, including fines, due by the losing party but some clients will assume that this task is undertaken in relation to civil court decrees too.
It needs to be made abundantly clear too that just because a claim is modest in value it must not be assumed that the lawyer’s fee will be small as well. There is absolutely no reason for a solicitor to charge a reduced fee for dealing with a low value claim. The potential loss and therefore the responsibility is less but the risk of a complaint is not.
Prior to the Solicitors (Scotland) Act 1988 a client who claimed that her lawyer had been negligent had to sue him and prove actual loss. Further, the courts have ruled that errors of judgment do not create liability unless the person under scrutiny has followed a course such that no professional person could have taken if acting with ordinary care; Hunter v Hanley 1955 SC 200.
However, this protection will be of use only if the client actually sues, and has the dispute tested in court. Solicitors face a hazard that is far more likely to materialise than a negligence case in the courts. The Solicitors (Scotland) Act 1988 created the concept of inadequate professional service (I.P.S.), which consists of “professional services which are in any respect not of the quality which could reasonably be expected of a competent solicitor” (italics added). Providing an I.P.S. entitles the client to complain. It even allows third parties to do so if they have been directly affected by the service. These are persons with whom the solicitor has no contractual relationship. Giving the power of complaint to one’s own client’s opponent can lead to absurd situations. There is currently a Scottish judge who had, whilst in private practice, been the subject of a S.L.C.C. complaint by his client’s opponent whom he had cross-examined in a manner which had resulted in victory for the client but bitter resentment in the opponent. In other words, the judge had been too good at his job as a litigator. Although the complaint was unsuccessful the practitioner should never have had his time wasted in this way.
I.P.S. and the S.L.C.C. remove the protection afforded to the solicitor by Hunter v Hanley because clients can circumvent the courts completely and rely on an error as constituting an inadequacy of the service provided. By using the Commission’s complaints procedure they save themselves the cost and risk of litigation.
Originally, all I.P.S. complaints were determined by the Law Society of Scotland. Nowadays such complaints are handled by the Commission. Its website is chatty and welcoming, with smiling cartoon figures. (“Hello, we’re the S.L.C.C … and our service is free”; to the complainer for sure but not to the legal profession which funds it). However, receiving a complaint is nothing to smile about.
Leaving aside the 1988 Act it is implied by the law of contract that a lawyer must provide a service of a reasonable standard. There is a delictual duty of care to do so too. So, the threat of court action by the client remains, as an additional peril for the practitioner.
This hazardous landscape means that if it takes at least three hours adequately to draft Forms, peruse evidence, speak to witnesses, prepare for hearings, compile submissions and so on then the solicitor is compelled to spend that time and should charge therefor. Doing less is risking a complaint or claim. On the other hand, lawyers can lose time and money dealing with low value actions in areas of law with which they are unfamiliar. They may have to spend perhaps two hours researching the law. Generally, such research is not chargeable to the client because lawyers are expected to know the law. There are other realities of which most members of the public are unaware; many high street solicitors do not have easy access to law libraries because of cost.