RISK MANAGEMENT
Are you expert at instructing experts?A disorganised approach to instructing an expert is asking for trouble.
If it results in a claim, do not think you can automatically pass the buck.
Often, as case law has shown, the responsibility will rest with the instructing solicitor.
It is for you to ensure that a clear set of instructions is prepared for the expert, identifying the issues to be addressed.It is sensible to have a procedure to be followed by all staff when instructing an expert.
The procedure should comprise the following elements:l The firm should maintain a central register of experts and third parties whom it instructs.
This register must be regularly monitored and updated.l The register should set out the expert's area of expertise, contact details, and biographical details.l Details of the professional indemnity cover held by the expert should be noted.l There should be one individual responsible for the overall monitoring of the register.l Fee-earners should not instruct experts who do not appear in the register without the express authority of a partner or other authorised individual.l The client should be advised prior to the expert being instructed.
The advice should include: why the expert is being instructed; what the expert is being asked to do; the likely cost; details of the expert; likely timescales; and whether it will be necessary to meet the expert.l Do not, unless absolutely necessary, instruct the expert until you have all the relevant information to hand.
Sending instructions and important documents in dribs and drabs increases the chance of error.
You should in any event have obtained all the relevant information at the start of the retainer, to enable you to undertake your risk assessment of the case and decide whether or not to take the client on.l When instructing the expert make sure you explain what you want done, why you want it done, and when you want it done by.l Always instruct your expert in writing.
Even if the original instructions are given orally, they must be confirmed immediately in writing.
When giving oral instructions, an attendance note should be made contemporaneously.l It is crucial that the expert is advised of all critical time limits.
Do not assume that the expert will work out critical dates.l Use your diary to follow up the expert's progress.
l When the report or advice is received, go through it carefully.
If necessary, question the content of the report and query anything you do not understand.
Make sure you go through the report with the client.l Report back to the individual responsible for monitoring the register where appropriate, that is to say, make a note of where the standard of advice has been high, or poor, or for any other relevant reason.l Always remember that your register must comply with any relevant legislation, for example, data protection, and be alive to the risk of defamation.This column was prepared by the St.
Paul risk management team.
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