Conduct and service

Don't delay if the news is greyA common situation leading to a complaint is when a claim is allowed to languish and eventually the solicitor has to advise the client that there is not a claim worth pursuing.

Why practitioners allow these situations to develop is open to debate.

One reason may be that the client has such a dominant personality coupled with unshakeable belief in his claim the solicitor is afraid of speaking the unpalatable truth.

Or the solicitor may have sympathy for the client, especially if encouraging noises regarding the claim were made earlier in the retainer.

Whatever the reason, the effects are similar - the file festers on the solicitor's desk, gathering dust and difficulty in equal measure.

Occasional activity may take place, but eventually either the solicitor must come clean or the exasperated client takes the instructions to another firm, where the truth emerges.

Matters are then made worse when it transpires the client has not been given either proper costs information or a cost risk/benefit analysis.

Such a situation arose in a case before the compliance and supervision committee.

The solicitors were instructed in November 1995, one month after the accident for which the complainant was seeking compensation.

After asking for a payment on account, the firm commissioned a report from safety consultants, which was received in March 1996.

Ten weeks later the solicitors wrote to the potential defendants intimating a claim.

Sporadic correspondence ensued with liability clearly being denied.

It was not until January 1997 that a medical report was sought.

Eventually, and only two weeks before the expiry of the limitation period, proceedings were issued.

Then, in May 1999, the solicitors at last informed the complainant they thought her chances of success were less than even and the proceedings were discontinued.It became apparent that before proceedings were issued the solicitors had failed to tell the complainant the price of any later withdrawal could include the defendant's costs as well as her own.

Further analysis of the file showed there was no evidence the firm had ever discussed with the complainant whether the possible costs of the proceedings might outweigh the potential benefit.

Consequently, the solicitors were ordered to indemnify the complainant against any costs and disbursements and pay her 1,000 compensation.

The message is clear - if you have to impart bad news to a client, the sooner is the better.

l Every case before the compliance and supervision committee is decided on its individual facts.

These case studies are for illustration only and should not be treated as precedents.