It is not surprising that reports from the start of September 2020 revealed that notification of claims against solicitors went up during lockdown. It was estimated that there was around a 20 per cent increase from the end of March to the start of August last year.
Some of this can be put down to clients following through on claims that they might otherwise have taken a view on, in a different economic climate.
Other claims may also arise directly through advice given due to the covid-19 pandemic, for instance, negligent advice taken in relation to employment or insurance matters that may have arisen directly from the current situation.
However, that does not account for a rise of the magnitude of some 20 per cent. Home working is likely a key factor. With practices splintered and being forced to work remotely, there is less supervision likely taking place, even in the most vigilant team. This means the capacity for mistakes increases.
Certain practice areas inevitably found themselves busy during lockdown periods. For instance, private client teams found that increasing numbers of people wanted wills written or alterations to wills made. With a deluge of these types of work, mistakes became more likely.
This was particularly so when remote witnessing was approved by the government, which brought additional issues into play, such as identification issues or undue influence.
In relation to insolvency practice, the so-called ‘coronavirus test’ was introduced for winding up petitions. If the required coronavirus test statement was missed, that in turn would mean that the winding up petition might ultimately be rejected.
On contractual advice issues such as health and safety, frustration and force majeure advice has been prevalent; and the pressure to give immediate advice to many clients has created potential for mistakes. In some cases, workloads may simply have overwhelmed teams.
In terms of litigation, we have seen a rise in cases where there have been breaches of court orders and relief from sanction applications has been needed; where costs budgets have been missed or limitation or claim service deadlines missed – for the simple reason that the workplace has become more fragmented and there is more scope for matters to fall through the net.
The impact of an increase in negligence claims against solicitors is that there will be more pay-outs by firms and their insurers to resolve claims. This in turn will increase premiums across the industry and will likely reach prohibitive levels for some.
So what can firms do to try to protect themselves as far as possible from mistakes arising; and from potential claims as restrictions and home working continues? Here are a few essential steps if you’ve not already implemented them:
• Ensure a risk management plan has been established, including a continuation of appropriate team supervision structures.
• Plan for additional people and resources into teams in the event workloads requires it.
• Ensure covid-19 updates in relation to court practices and legislative changes are checked when completing work to ensure omissions or errors minimised.
• Ensure a business continuity plan has been set to allow continued remote working, together with a virtual communication plan so there is a consistency of communication in your practice.
Professional negligence cannot ever be extinguished given the realities of simple human error. In these challenging times it is bound to be of heightened concern, so checking your planning and risk management position consistently must be of the utmost importance.
Michael Young is legal director in the professional negligence team at Lime Solicitors limesolicitors.co.uk