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The perils of commoditised advice: Procter v Raleys Solicitors

Introduction

On 28 April 2015 the Court of Appeal handed down judgment in Procter v Raleys Solicitors.  The case is an important reminder to solicitors engaged in bulk litigation of the risks posed by "commoditising" their services.

The claimant, Mr Procter, is a former miner from Yorkshire. He developed a condition called Vibration White Finger (VWF), a form of Hand Arm Vibration Syndrome. The Defendant, Raleys Solicitors, specialised in claims against their employers by victims of VWF. In January 2000, Mr Procter engaged Raleys to pursue a claim against his former employers.

Claims in connection with VWF were governed by a compensation scheme set up by the DTI.  Mr Procter’s claim against Raleys concerned ones of the heads of compensation available under the scheme: a claim for “services”, i.e. assistance with domestic tasks rendered necessary as a consequence of the disability.  An important feature of the case is that to claim compensation under this head of the scheme it was not necessary actually to have spent money employing someone to assist with the relevant domestic tasks; those in receipt of gratuitous assistance from friends or family members were still entitled to compensation.

Mr Procter’s case was that Raleys negligently failed to advise him of his entitlement to compensation under this head; had it advised him properly, he would have recovered an additional £11,079.42 (which would have roughly doubled his claim).

The facts

Mr Procter instructed Raleys in connection with his VWF claim in January 2000.

In March 2001 Mr Procter carried out a medical assessment.  This concluded that Mr Procter’s condition was sufficiently severe that for the purpose of the compensation scheme, there was a presumption that he could not without assistance carry out the tasks relevant to the services element. This led to the caseworker at Raleys making a file note recording that Mr Procter had a potential services claim.

In September 2001 Raleys sent Mr Procter a letter following on from the medical inspection.  The letter included a paragraph headed “Services Claim” in which it wrote, “On the basis of the medical evidence I advise that you may qualify for such a claim.”  Despite this, in the corresponding authority form Mr Procter ticked the box declaring that he wished only to claim compensation for pain, suffering and loss of amenity.

In October 2003 Mr Procter’s former employers sent an offer letter for the sum of £11,141, which did not of course include any element of compensation for services.  In its letter advising him of this, Raleys said in connection with the services element:

“It is a well-established principle of law that anyone unable to carry out everyday tasks due to an injury should be able to recover the cost of any assistance to carry out those tasks. It may be possible to claim damages for past and future assistance in carrying out gardening, decorating and other tasks if your VWF results in a reduction in your ability to carry out these every day tasks.

We note that you have previously indicated that you do not wish to pursue this additional claim.”

Mr Procter accepted this offer in full and final settlement of his VWF claim.

The decision

The judge at first instance concluded that Raleys were negligent because they should have done more “to ensure that the Claimants actually understood the advice he was received.”  The judge was influenced in reaching this view by the fact that miners such as Mr Procter, who began work at 16 without a great deal of education, were less likely to understand the complexity of the VWF compensation scheme, particularly in relation to the services element and the fact that it did not require actual financial outlay.

The Court of Appeal (Tomlinson LJ giving the lead judgment), agreed with this analysis, and said that a reasonably competent solicitor would have telephoned or preferably met with Mr Procter to ensure that his instruction not to pursue a services claim was made on an informed basis.  In circumstances where Raleys, as evidenced by the internal file note, considered that Mr Procter had a potential services claim, it was incumbent on them to ensure that his decision not to pursue it was not made as a result of a misunderstanding on his part.

The Court of Appeal rejected the argument advanced on behalf of Raleys that, in circumstances where it was running a low-cost service, it was unreasonable to expect it to incur the cost of telephoning or meeting Mr Procter.  First, it considered that the standard form letters sent to Mr Procter “failed to give a clear exposition… on the critical question whether gratuitous assistance would attract compensation…”  Secondly, and in any event:

“…whatever may be the practical and economic constraints in conducting face to face meetings or telephone discussions with clients in claims handling of this nature, it is apparent that in this case there were at least two opportunities to give, without significant additional cost, a straightforward exposition of the circumstances in which a claim could be made, and to follow up the implications of such relevant information as the client had given…”

Discussion

The key issue in this case is the tension between imposing sufficiently high standards on solicitors to ensure that proper advice is given, and the concern not to require the "Rolls Royce treatment" from solicitors whose clients cannot afford it.

In this regard, the common law recognises that the same standards cannot be expected of small, high-street firms as clients may be entitled to expect from expensive city firms: see e.g. Balamoan v Holden Co [1999] N.L.J. Prac. 898.  In that case Brooke LJ said that it was:

“of critical importance for the courts not to apply a too rigorous standard in [such] circumstances, because when pursuing such a claim a solicitor must always be anxious not to incur costs which he cannot, if successful, recover from the other side, because otherwise the Legal Aid Board's charge will reduce his client's compensation.”

It is clear from Procter, however, that concern about costs cannot justify a failure to give proper advice.  Tomlinson LJ rejected “the notion that a solicitor should feel inhibited from ensuring that his client has understood advice given to him by the consideration that so ensuring might generate a further fee payable by the client.”  He went on to say, “Obviously the question what in any given case a solicitor should do so as to ensure that his advice is understood is a question of fact and degree. There can plainly be no hard and fast rule that it is no part of a solicitor’s duty to test the client’s understanding.”

The difficulty Raleys faced in their contention that they were entitled to save cost by "commoditising" their advice, is that the commoditised advice given was far from clear, and arguably misleading in that it failed to explain that a claim could be made in respect of services given gratuitously.  It is interesting to consider whether the result would have been different had Raleys’ standard form letter contained unimpeachable advice. Suppose, despite this, Mr Procter had nevertheless elected, without apparent good reason, not to pursue the services claim.  Would Raleys have been under a duty to query the instruction in such circumstances?  The answer, I suspect, is yes: the Court of Appeal would in the very least have expected Raleys, regardless of the funding position, to telephone Mr Procter and check that he fully understood this aspect of his claim.