Time to rewrite the script?
Nick White looks at the delegation issues raised by The Accident Group's CFA test cases and the regulation implications for the Law Society
The Accident Group (TAG) test cases which are going to the Court of Appeal later this year involve important issues surrounding legal representation (see [2002] Gazette, 5 December, 1).
Regulation 4 of the Conditional Fee Agreement Regulations 2000 stipulates that a legal representative must give specified information and advice regarding CFAs and after-the-event insurance.
The senior costs judge, Master Hurst, was asked to determine the preliminary issue of whether the TAG scheme - which provides for delegation to TAG representatives to give the required advice - was compliant with regulation 4.
He found that in principle it was permissible for solicitors to delegate this task to anyone acting as their appointed agents.
When advising claimants, TAG representatives read a standard script designed to provide the requisite information.
They usually have no legal training and their knowledge is limited to the TAG product.
It is difficult to see how reading a script can comply with the spirit or letter of the regulations.
Similarly, conflict may arise with the solicitor's duty under paragraph 3(b) of the solicitors' costs information and client care code, which provides that costs information must be tailored to the level of each client.
This highlights two issues for the Law Society - the provision of proper client care and the Law Society's ability to regulate the legal profession - two principles which are integral to upholding the reputation of the legal profession.
The issue of client care in relation to costs is paramount to the work of a solicitor.
The code exists to ensure that clients who are unfamiliar with the law can understand what is happening.
Furthermore, the code stresses the importance of solicitors explaining to clients the effect of key documents.
Therefore, is it appropriate for a TAG representative, essentially a layman, to be explaining litigation funding to the client when he too is unfamiliar with the law? The CFA is a complex document.
Is it likely that the TAG representative, with little or no knowledge of contract law, funding issues and presumably a superficial knowledge of the case at best, could adequately explain its effect and answer the range of questions that a client may ask? The evidence before Master Hurst suggested that a TAG representative would not try to answer questions outside the script.
If clients did not understand the script after three readings, the TAG representative would suggest that they not sign the agreement.
Although it was possible for questions to be referred on to the panel solicitor, there was no evidence adduced of this happening in practice.
It is trite law that the solicitor with conduct of the case is ultimately responsible if this task is not carried out properly.
However, how can a solicitor, who has had no real contact with the client at that stage and has had no contact with the TAG representative, actually know that the CFA is being explained in line with regulation 4? There may be uncertainty in respect of whether the TAG representatives are, in every case, carrying out the task properly.
Bearing in mind, in the ordinary course of events, there is no contact between solicitor and TAG representative, it is difficult to see how the solicitor can comply with his duty to supervise a client's matters.
The fact that the solicitor with conduct remains liable for the consequences of any breach of regulation 4 is no safeguard - the aim must be to avoid unsatisfactory service to clients in the first place.
Clearly, delegation in some circumstances is both appropriate and desirable.
However, there are situations that require specialist knowledge and experience.
When a solicitor signs the declaration on a CFA that regulation 4 has been complied with, he cannot be satisfied that there has indeed been compliance.
This is why the Law Society is now facing a serious challenge to its ability to regulate solicitors in these circumstances and in this important area.
Nick White, a partner at Beachcroft Wansbroughs, London, acts for one of the defendant insurance companies in the TAG litigation
No comments yet