Professional Negligence, Solicitors: Recent Case Law, 2014

In preparation for this talk I have reviewed cases of interest in the High Courts and Courts of Appeal of England and Wales and Northern Ireland from the past two years or so on professional negligence and liability and principally relating to solicitors.

There are six topics of interest: the general duty of care demanded of solicitors in the carrying out of their professional obligations; whether there is a specific duty on a solicitor to warn or advise a client of any implied risk in, say, a commercial transaction; what is the scope of the duty on a solicitor to explain the content of or clauses in a legal document; a recent case of interest applying the White v Jones principle to a disappointed beneficiary seeking to make a claim against a solicitor who negligently prepared a will; the practical, limitation issue of how to pinpoint in a professional negligence claim when the damage was first sustained by the claimant; and finally some case law here and in England and Wales on the (costs) implications for solicitors relating to any failure to adhere to case management protocols or related court directions.

Professional Services

This is a study on “Professional Services: Civil Liability for Deficiency”. This study is made with special reference to medical profession. The importance of qualitative professional services does not require any emphasis. It is a matter of great concern for the people as they are consumers.This study is divided into 12 chapters. The introductory chapter deals with characteristics of profession, basis of professional liability and international efforts to check abuse of position by professional men. Consumers as laymen can not perceive the intricacies of professional services. As a result professional men could misuse their superior position to expose consumers to hardship through deficient services. This is obvious from the fact that deficiency in professional services has assumed a menacing proportion. It is indicative of failure of internal control through self-regulation to check the abuse of position by the professional men. The professional bodies entrusted with the task of enforcing disciplinary measures show a very callous and indifferent attitude towards the repressive conduct of their members. These bodies are more concerned to protect the interest of their members. They are not free from institutional bias. They have put the interest of consumers into oblivion. In effect remedies through professional bodies has become a myth. All these factors make the external control of professional services mandatory to protect the consumers from the clutches of unscrupulous professional men, who abuse their superior position. The professional men who abuse their position are exposed to liability. Their liability arises under contract, tort and statutory law. The present study substantially concentrates on professional liability of medical men. The obvious reason is that of all professional services medical services are the frequently availed services by the consumers. Medical negligence cases account for bulk of the professional negligence cases. ln India also large number of cases are coming before consumer forae. The legal principles evolved in this sphere of professional service confers an insight into legal control of other professional services as well. The same principles are applied to other professions also, as by and large all the professions share common characteristics. Such principles are modified wherever necessary to make room for differential aspects of particular profession

Contributory negligence involving overseas European banks in property valuation negligence cases in the UK

This paper examines the phenomenon of cross-border property lending and examines a number of issues regarding lending procedures and decision making processes in the context of the relationship between lender and professional advisor. It commences by placing these procedures and processes in the context of the development of cross border European property investment and finance. The UK has been a popular destination for overseas investors and lenders over the last decade and is therefore used as a case study to examine the additional institutional risk that overseas lenders may face when operating outside of their own country and obtaining advice from home professionals. The UK market was the subject of a boom period during the late 1980s, followed by a recession in the early 1990s. The losses triggered a number of professional negligence actions by lenders against valuers. These include a number of overseas lenders mainly from Europe and these cases have been examined for any particular features which, coupled with other data gained from overseas lenders as part of an interview survey, could be used to isolate any significant problems for European lenders in overseas markets. The research identified a lack of clarity in roles and relationships between lender and advisor, difficulties in communications both internally and between overseas branches and headquarters and failures in provision and interpretation of advice. The paper concludes by identifying the issues which may need to be addressed generally by lenders and their advisors, when the lenders are operating in overseas markets.

PROFESSIONAL LIABILITY OF AMATEURS: THE CONTEXT OF SPORTS COACHING

The developing intersection between the law of negligence and sports coaching in the UK provides a profoundly distinctive context, as compared to that of the more traditional learned professions, in which to critically examine the issue of professional liability. More specifically, detailed consideration of the Bolam test in the context of sports coaching, where the majority of coaches are volunteers, reinforces the Bolam doctrine as a control mechanism designed to protect both claimants and defendants alike. Importantly, a fuller analysis of related jurisprudence, even in instances where defendant coaches lack a formal qualification, and/or may not have engaged in considered and reasoned decision-making, reveals the potential for the Bolam test to operate as a quasi-defence, thereby safeguarding coaches from negligence liability. Nonetheless, in discharging this heightened standard of care incumbent upon them, coaches must ensure that the coaching practices adopted are regular, approved, and capable of withstanding robust and logical scrutiny. Ultimately, this article’s analysis of the principles of professional liability, in the specific circumstances of sports coaching, should prove to be of appreciably wider interest and utility for practitioners specialising in personal injury law.

"IT'S JUST NOT CRICKET": ANALYZING SPORTS NEGLIGENCE IN THE UK

This presentation is about the law of professional negligence as it applies to sport. The presentation asks, paradoxically, if the skills you have as a sports coach or official might ever, on not being reasonably applied, leave you or your sport vulnerable to a claim in negligence. To inform this debate, the recent judgment in Bartlett v English Cricket Board Association of Cricket Officials (unreported, County Court (Birmingham), 27 August 2015) is critically considered. Arguably, this case is indicative of the extension of tortious liability in the UK, most notably, for officials and coaches in the context of amateur sport, essentially requiring HHJ Lopez to determine what might be termed the ‘professional liability of an amateur’.

Everyday life and the edges of existence : wrongs with no name or the wrong name?

Actions for wrongful life, as they have come unfortunately to be styled, encompass various types of claim. These include claims for alleged negligence after conception, those based on negligent advice or diagnosis prior to conception concerning possible effects of treatment given to the child's mother, contraception or sterilisation, or genetic disability. This distinguishes such claims from those for so called wrongful birth, which are claims by parents for the cost of raising either a healthy or a disabled child where the unplanned birth imposes costs on the parents as a result of clinical negligence. Two of the more controversial cases to have reached the High Court of Australia which are if interest to us here in the past decade are Cattanach v Melchior where the court, by a narrow majority (McHugh, Gummow, Kirby and Callinan JJ; Gleeson CJ, Hayne and Heydon dissenting) acknowledged recovery for wrongful birth. In the second joined appeals of Harriton v Stephens and Waller v James; Waller v Hoolahan the court overwhelmingly precluded a ‘wrongful life’ claim (Gleeson CJ, Gummow, Hayne, Callinan, Heydon and Crennan JJ; Kirby J dissenting). Both cases raised issues around the sanctity and value of life and the nature of harm and the assessment of damages, and this brief note affords us the opportunity to consider the way in which the ‘life as legal loss’ arguments were treated by the various judges in both cases.

Valuers? Liability : the impact of torts reform in Queensland

Historically there has been a correlation between the economic cycles and litigation in the area of professional negligence relating to valuers. Negligence actions have principally been instigated by financiers for valuations prepared during more buoyant economic times but where there has been a subsequent loss due to a reduction in property value. More specifically during periods of economic downturn such as 1982 to 1983 and 1990 to 1998 there has been an increased focus by academic writers on professional negligence as it relates to property valuers. Based on historical trends it is anticipated that the end of an extended period of economic prosperity such as has been experienced in Australia, will once again be marked by an increase in litigation against valuers for professional negligence. However, the context of valuers liability has become increasingly complex as a result of statutory reforms introduced in response to the Review of the Law of Negligence Final Report 2002 (“the IPP Report”), in particular the introduction of Civil Liability Acts introducing proportionate liability provisions. This paper looks at valuers’ liability for professional negligence in the context of statutory reforms in Queensland and recent case law to determine the most significant impacts of recent statutory reform on property valuers.

Will Queensland tort reform change valuation practice and valuers liability

It has been common practice over past property boom and bust cycles in Australia for financial institutions and property owners who have suffered a loss in the property downturn to sue valuers for negligence. Damages claimed are based on the price differential between the valuation at or nearing the peak of the market and the subsequent sale in the market downturn. However, the context of valuers liability has become increasingly complex as a result of statutory reforms introduced in response to the Review of the Law of Negligence Final Report 2002), in particular the introduction of Civil Liability Acts introducing proportionate liability provisions. Legislative reforms have had some positive outcomes for Valuers, however valuers need to continue to maintain high ethical standards, independence and professionalism in valuation practice.

Limitation of Actions - incorrect date of accident advised to solicitor

The decision of the Queensland Court of Appeal in Cormie v Orchard [2003] QCA 236 involved consideration of whether the respondent solicitor was liable in negligence for failing to commence proceedings within the applicable limitation period in circumstances where the solicitor had relied on the advice as to the date of injury nominated incorrectly but unequivocally by the client.

Equity in Australian estate litigation

Equitable claims are increasingly arising in Australian estate litigation, particularly in conjunction with family provision applications. Since the leading decision in Bridgewater v Leahy, in addition to undue influence and unconscionable bargain claims, actions based on equitable estoppel, constructive and resulting trusts, breach of fiduciary duty, and breach of legislative duties that mirror equitable obligations are increasingly being brought in contemporary estate litigation. Such litigation often raises challenging issues for claimants, including evidentiary hurdles and allegations of undue delay, especially when claims are made post-mortem in relation to inter vivos dealings with property. Accordingly, solicitors need to ensure that they fully understand the nature and potential application of equitable claims in estate litigation, or face the prospect of incurring liability to clients for professional negligence. This article explores recent trends in Australian estate litigation involving equitable claims.

Recent Developments in the Law of Torts in Northern Ireland Annual Conference of the Irish Association of Law Teachers

This paper reviews decisions from the Northern Ireland and England and Wales High Courts and Courts of Appeal as well as the UK Supreme Court relating to tort and principally to the tort of negligence in the past 12 months or so.

In structure, the paper will be presented in four parts. First, three preliminary points relating to contemporary features of the NI civil courts: personal litigants – Devine v McAteer [2012] NICA 30 (7 September 2012); pre-action protocols – Monaghan v Graham [2013] NIQB 53 (3 May 2013); and the rise of alternative dispute resolution. On the last named issue, the recent decision of PGF II SA v OMFS Company 1 Ltd [2013] EWCA Civ 1288 (23 October 2013) on unreasonable refusal to mediate, will be discussed.

Second, the paper moves to consider the law of negligence generally and case law from the NI High Court reiterating Lord Hoffmann’s view in Tomlinson v Congleton Borough Council [2004] 1 AC 46 that no duty of care arises from obvious risks of injury. In this, reference will be made to the application of the above “Hoffmann principle” in West Sussex County Council v Pierce [2013] EWCA Civ 1230 (16 October 2013), which concerned an accident sustained by a child at school. A similar set of facts was presented recently to the UK Supreme Court in Woodland v Essex County Council [2013] UKSC 66 (23 October 2013). The decision there, on non-delegable duties of care, will have a significant impact for schools in the provision of extracurricular activities.

Third, I will review a NI case of note on the duty of care of solicitors in the context of professional negligence in the context of conflicting advice by counsel.

Fourth, I will examine a series of cases on employer liability and including issues such as the duty of care towards the volunteer worker; tort and safety at work principles generally; and, more specifically, the duty of care of the employer towards an employee who suffers psychiatric illness as a result of stress and/or harassment at work. On the issue of workplace stress, the NI courts have made extensive reference to the Hale LJ principles found in the Court of Appeal decision of Hatton v Sutherland [2002] 1 All ER 1 and applied to those who have suffered trauma in reporting on or policing “the troubles” in Northern Ireland. On the issue of statutory harassment at work, the paper will also mention the UK Supreme Court’s decision in Hayes v Willoughby [2013] UKSC 17 (20 March 2013).

Making way for change at the Bar: The practical implications of the new Bar Standards Board Handbook

The Legal Services Act 2007 caused a need to change professional conduct rules for lawyers in England and Wales. The Bar Standards Board Handbook brings substantial changes to the way barristers are regulated. Changes include litigation rights, reporting of professional misconduct, an increased focus on chambers, and expansion to include employees of chambers and barristers without practicing certificates (unregistered or non-practicing barristers). The approach to enforcement and supervision moves to include elements of outcome focused, principle based and risk based approaches. These changes have the potential to change the practice of different groups of barristers and the dynamics between them.