Hard on the heels of the legal services reform, Katy Manley calls on the Law Society to create a professional negligence panel

The title of the government's White Paper on legal services reform was The Future of Legal Services: Putting Consumers First. Therefore, it seems manifestly obvious that the whole thrust of the reforms as to complaints handling, in terms of government policy, is to address the issue from the consumer perspective.


In terms of claims/complaints, there are essentially three categories: incompetence, negligence (to be proved on the balance of probabilities), and misconduct (to be proved beyond reasonable doubt). In every claim or complaint, a consumer is likely to be up against a professional and his insurers. There is no doubt this is an awesome prospect, both in terms of resources and skills.


Do we, as solicitors, really want to implement government policy? There are those who may feel that the job of the Law Society is to protect its members. One way of achieving that is to ensure that it is as difficult as possible for a consumer to find a solicitor with appropriate skills and training to take on the might of a professional and his indemnity insurers. But there are, in fact, several overwhelming difficulties with this approach:


  • Public confidence - if it becomes known that a consumer has been unable to obtain redress, then the profession will suffer in terms of status and client confidence.


  • Professional indemnity insurers and their advisers are openly dissatisfied with current standards of claims handling. They will support an improvement they consider would benefit all concerned.


  • The Law Society's maintains an overriding view that the public should have access to high-quality legal services. This is a complex and fast-moving area of practice, and proper (let alone 'high-quality') advice cannot be given without, at least, access to an up-to-date textbook and, preferably, the Professional Negligence Law Reports. The opponent will certainly have access to both.



    • Furthermore, the Law Society Council has adopted this view. Implementation has been carried out in other areas of practice by the formation of accredited panels - why not in this most sensitive area of all, including claims/complaints against our own?


    The Law Society has carried out a detailed survey of members' views, with more than 90% of those who responded supporting the formation of a panel. It has also prepared a detailed proposal to implement such a panel, but this was blocked in August 2004, apparently because of a lack of resources.


    Neither the current complaints-handling system nor the proposed reforms, as set out in the draft Legal Services Bill, address the issue of access to proper representation. Failure could infringe articles 6 and 8 of the European Convention on Human Rights, as was found on this issue in Airey v Ireland (1979) 2 EHRR 305.


    As one of the few, but hopefully growing number, of specialists in this area of practice, I receive calls all the time from consumers who have found it difficult to get solicitors to act for them.


    For those who consider protecting their own backs more important than anything else - you still have a problem in rejecting reform, in particular in the light of the views of the indemnity insurers. For the rest of us, it would be far better all round for the Law Society to implement either its existing proposal for an accredited professional negligence panel or a credible alternative without further delay.


    Katy Manley is a founding member of both niche professional negligence law firm Manley Turnbull Solicitors in Cheltenham and the Professional Negligence Lawyers Association