[10] A further meeting was arranged with the solicitors for 23 September 2010. The client agreed that the writ of summons should be served by 14 November 2010 so as to keep the claim alive. She wished to pursue a legal aid application and it was agreed that this would be processed as soon as the forms were returned. The writ was duly served and on 5 and 20 October 2010 the client was asked to return the Form CLA4. On 11 February 2011 the solicitors confirmed that the insurers were agreeable to the case being remitted but indicated that they did not wish to do so until they had received the legal aid forms. The client e-mailed asking precisely what forms were missing. By letter of 15 February 2011 the solicitor explained that the only outstanding form was the Form CLA4. He sent a further copy by post and a blank copy by e-mail as well. Some further e-mails were exchanged as a result of which the appellant received an e-mail with a hand written endorsement suggesting that their interest in the appellant's brother-in-law had amounted to harassment and that the client no longer had any respect for the solicitor. In those circumstances the solicitor indicated that they could no longer act since the necessary confidence between solicitor and client was no longer present. On the same day the appellant sent a fee advice note claiming £2973.25 plus VAT for professional services and £1092 plus VAT for outlay including medical expenses, counsel's fee and court fees. These fees were, of course, subject to taxation.
The complaint
[11] The client complaint form was dated 8 April 2011 but appears to have been marked received by the Law Society on 16 May 2011. The terms of the complaint were as follows: –
The assertion of negligence and the cavalier attitude needs to be seen in the context that the client had sent a letter to the solicitors dated 24 August 2010 in which she had expressly said that she was not taking any issue with the quality of the service delivered by the solicitor. That issue is not, however, one with which these proceedings are concerned. The second immediate observation on the terms of the complaint is that there was no evidence adduced at any stage of these proceedings that the solicitor advised the client that costs would be covered by legal aid. Indeed the proceedings have been conducted on the basis that no such assertion was made.
[12] The Law Society referred the complaint to the firm on 13 June 2011 and a response was forwarded on 29 July 2011. The Society wrote again on 7 November 2011 asking for evidence of correspondence to the client which detailed the financial consequences for her if the firm continued to work on the file in the absence of legal aid. The Clients Complaints Committee also noted that the client's written authority was not provided for either the additional professional fees or the outlay. In a further response dated 13 March 2012 the appellant took issue with whether written authority or notification was necessary. It maintained that the client was aware of and approved the expenditure on her behalf.
[13] At its meeting on 8 May, 2012 the Client Complaints Committee, which acts on behalf of the Council of the Law Society on this issue, resolved as follows: –
The relevant statutory provisions
[14] Part III of the 1976 Order is entitled Professional Practice, Conduct and Discipline. The heading for Article 41A which falls within that Part is "Imposition by Council of Disciplinary Sanctions for Inadequate Professional Services". The relevant provisions on which the Clients Complaints Committee acted are: –
The right of appeal is contained within Article 41A (6) of the 1976 Order which provides that the powers on appeal are that the determination or direction of the Council may be affirmed or revoked or any other determination or direction which could have been made or given may be made.
[15] Both parties agreed that the appeal should be by way of rehearing and indeed both called evidence from solicitors as to prevailing practice. I also accept that this should be an appeal by way of rehearing but it is important to identify the scope of the appeal. As the heading to Article 41A of the 1976 Order makes clear this is part of the disciplinary regime concerned with the quality of service to be expected from solicitors. It is important, therefore, that there is no ambiguity in the finding which the solicitor seeks to challenge. Article 41A makes clear that the power of the Council, exercised by the Clients Complaints Committee, arises in connection with any professional work which was "in any respect not of the quality that could reasonably have been expected of him as a solicitor". There is, therefore, an obligation to identify with precision the respect in which the quality of the work was not of the requisite standard. The scope of the appeal is determined by that finding. It is not open to the parties to enlarge the issues on appeal.
[16] The parties also agreed that the issues arising in this case were unlikely to give rise to any form of precedent. The Solicitors (Client Communication) Practice Regulations 2008 came into effect on 1 September 2008. These provide for the provision of costs information in Regulation 4 and there is a Schedule containing a Code of Practice setting out the written information to be given to the client in relation to costs. It is agreed that since the relationship of solicitor and client in this case arose on 29 January 2007 the Regulations do not apply. There were no such obligations set out in any Regulations prior to the 2008 Regulations.
The expert evidence
[17] Mr Andress was called by the plaintiff as an expert. He sits on the Contentious Business Committee of the Law Society and has been a member of the Clients Complaints Committee. He said that where a solicitor was instructed to pursue a case the normal rule was that the client was responsible for the costs and outlays incurred unless there was some other method of funding. In this case the client had been advised on numerous occasions about the obtaining of legal aid but had not taken the steps necessary to have her application considered.
[18] He considered that initially the solicitor was instructed to pursue the case by way of negotiation with the insurer and after that to get a witness statement for the purpose of pursuing the case to court. The client had been expressly informed in December 2008 that she may become responsible for the fees connected with the issue of the writ. She gave her permission to obtain the medical notes and records and was notified of the attendance with the orthopaedic surgeon in order to progress her claim. In those circumstances he considered that there was at least implied authority to incur the costs related to the medical examinations and the obtaining of the records. Counsel's opinion would in any event have been necessary in order to obtain legal aid and would not have been recoverable. He considered that the client had been advised persistently about legal aid but had failed to do anything about it. The costs incurred were those that might have been expected in the circumstances.
[19] In cross-examination he agreed that there was a duty upon the solicitor to raise the issue of legal aid with the client who appeared to be within scope but it was accepted by all parties that the appellant had satisfied its duty in that regard. The client was anxious for the case to proceed and in those circumstances it was necessary to issue a protective writ, to obtain the medical records and to obtain a medical report. If it were necessary to obtain express authority in relation to every outlay cases would never get finished. These outlays and the work done were not unusual. It was clear from the correspondence of 24 August 2010 that the client was aware of the issues about costs but was still anxious to proceed.
[20] In support of his contentions Mr Andress drew attention to a document entitled "Terms of Engagement and Terms of Business" which had been issued by the firm in which Ms Smyth worked. He drew attention to the section indicating that the solicitor would issue court proceedings on behalf of the client and brief counsel where the solicitor felt it appropriate. Mr Andress also drew attention to the section indicating that any disbursements incurred by the solicitors on behalf of the client during the course of undertaking the work would be charged. There was no indication that the express oral or written authority of the client was required for any of these matters.
[21] Ms Smyth was a qualified solicitor of 15 years' experience and her competence and abilities were not in question. There was, however, an issue about her independence as an expert. Between 1998 and 2010 she had worked for Mr Daly who was a partner in the firm of Francis Hanna and Company and the instructing solicitor in the defence of this appeal on behalf of the Law Society. It appeared that her affidavit had been prepared in draft by Mr Daly although she made some modifications to it before signing it. He had drawn to her attention the cases of Fennel v Johns Elliott [2007] NIQB 72 and Tiffin Holding Ltd v Millican 49 DLR 216 upon which she had placed reliance at paragraph 10 of her affidavit.
[22] She indicated that it would be unreasonable for a solicitor to spend more than £50 without authorisation. She agreed that the client had given her written consent to obtain the medical records but said that the client may not consider who would pay. She said that the terms of reference to which Mr Andress referred were drafted by the principal and she accepted that there was a measure of discretion as to how to go about a client's business. She accepted that the note of 23 September 2010 indicated that the client was aware that costs were her responsibility. She agreed that it was possible for solicitors who were reasonably competent to take differing views on these matters.
[23] The Court of Appeal has recently considered in Young v Hamilton and others [2014] NICA 48 the assistance which can be derived from this sort of debate between competent solicitors. In the event the comments in that case apply with equal force in this appeal.
Consideration
[24] The starting point is to determine the scope of the appeal. The resolution of the Clients Complaints Committee is somewhat ambiguous. In substance the resolution states that in circumstances where the client may have qualified for legal aid, the solicitors had failed to properly secure the client's authority to run up professional fees and incur outlays. That immediately raises the question of whether there is a distinction between this appeal and the steps that need to be taken to secure a client's authority for fees and outlays when the client would not qualify for legal aid. There is nothing in the resolution itself nor, so far as I can see, anything in the discussion recorded within the minute of the relevant meeting to suggest that there should be such a distinction. It is also noteworthy that the fact that the client might have qualified for legal aid was not a factor in the observations of the two solicitors who were called to give evidence on the circumstances in which a client's authority should be obtained.
[25] This was a case in which the solicitor had assiduously pressed the client to pursue an application for legal aid. The letter of 4 June 2008 indicated that the client was doubtful about whether she should do so. Having regard to all the circumstances it appears to me that this was a case in which the client might have qualified for legal aid but chose not to take the necessary steps to pursue that application. The question is whether in those circumstances the solicitor had failed to properly secure her authority to run up the professional fees and incur the outlays.
[26] One of the issues which was debated in this appeal was the extent to which I should give weight to the views of the Clients Complaints Committee. I have recently touched on this issue in Re a Solicitor [2014] NIQB 46 and consider that I should take the same view in this case. I consider, however, that the consideration of the Clients Complaints Committee in this case appears to have focused on the client's general entitlement to legal aid rather than on the client's determination that her claim should proceed despite the fact that she had not availed of that entitlement. The evidence before me indicates that in the latter circumstance the client is in the same position as a client who is not eligible for legal aid.
[27] I recognise that in light of the 2008 Regulations a client care letter would have been required if the instructions had been received after 1 September 2008. That was why in this case it was helpful to me to have evidence about the general practice of solicitors in such proceedings prior to that date. Ms Smyth accepted that the issues in this case were matters upon which reasonable solicitors might have differing views. Her own principal's written terms of engagement did not correspond with her views as to what constituted reasonable practice but appeared to me to be more in line with the views of Mr Andress. Ms Smyth accepted that Mr Andress was a solicitor of considerable experience and background in these matters. The Society sought some support from the decision in Macdougall v Boote Edgar Esterkin (2001) 1 Costs LR 118. That was a case in which the issue concerned the entitlement of a partner to a specific fee. The fact that there was no express authority for that fee did not prevent the partnership recovering costs on the basis of taxation. I do not consider that this case is of any assistance in this instance.
Conclusion
[28] In light of the evidence of Mr Andress I do not accept that the services provided by the appellant were not of a quality that could reasonably have been expected of the appellant as a solicitor and accordingly I revoke the determination.