Nottingham Solicitors

We are a nationally recognised firm of Personal Injury Solicitors specialising in Employers Liability, Industrial Disease, Public Liability and Medical Negligence Claims. We provide our legal services to injured clients throughout England and Wales on a strictly ‘no win no fee’ basis. We endeavour to ensure that all of our clients receive 100% of any compensation damages that they are awarded by the courts or that are negotiated on their behalf by our lawyers.

Our Practice and all of the solicitors within it are regulated by The Law Society. The Society has the power to make rules of conduct under authority given by the Solicitors Act 1974. The central core of rules are the Practice Rules, but there are others, such as the Accounts Rules 1998, and the Solicitors Investment Business Rules 1995. These rules are constantly changing in response to professional demand, public expectations, economic factors and other pressures. The Practice Rules are an amalgam of common law principles and a consensus of what is viewed as acceptable behaviour – which changes from time to time.

Contractual obligation
In addition to the obligation to the client to observe the general rules of professional conduct (e.g. confidentiality, no conflict of interest) a solicitor has a contractual relationship. This requires the solicitor to carry out his or her instructions with reasonable care and skill. Under the general law of contract it is permissible to exclude liability. The Law Society however has stated that it is not acceptable for a solicitor to attempt by contract to exclude all liability, but there is no objection to seeking a limit liability provided that this does not affect the minimum level of insurance cover required by the Solicitors Indemnity Rules (currently £1 million per firm per claim).

Fiduciary obligations
A solicitor has fiduciary obligations to the client. This means, inter alia, that the solicitor must not make any secret profit out of the client (hence Practice Rule 10 and the obligation to account for commission).

Care and Skill – and Negligence
A failure to use proper skill and care may also lead to liability to the client in tort for negligence. This liability can extend to non-clients if there is a duty of care as in Ross v Caunters [1980] CH 297, where a solicitor’s failure to give clear instructions for the witnessing of a will lead to the loss of benefit under the will for the spouse of an attesting witness. Similarly in White v Jones [1995] 2 AC a firm of solicitors was held liable to the intended beneficiaries under a will where there was delay by the solicitors in preparing the will, and the testator died before it could be executed.

General obligations
The client is under a legal obligation, pursuant to the contract of retainer, to pay the solicitor’s proper costs. However, when taking instructions the client must not only be told at the outset what issues are involved, and how they will be dealt with, but should also be informed about cost; how much they are likely to be and how they will be charged. This is now mandatory under Practice Rule 15 and the Solicitors’ Costs Information and Client Care Code 1999.

The client should further be given an estimate of the time scale involved and then next step to be taken. The client must also be kept informed about costs as the matter progresses, including any changed circumstances which may affect the costs.

Community Legal Service Funding
What was previously known as Legal Aid is now known as Community Service Funding, administered by the Legal Services Commission (LSC). Whether or not your firm undertakes work paid for by the Legal Services Commission Fund, you are under a professional obligation to consider its possible availability. However, since the coming into force of the Access to Justice Act 1999, the scope of public funding in civil (but not criminal) cases has been severely reduced. In essence, it is no longer available for claims in personal injury arising from negligence, except in exceptional circumstances, for example if there were a case which has a significant wider public interest. Note that claims for medical negligence are not treated as personal injury cases in this context. For non-personal injury cases, applicants for CLS funding must meet strict eligibility criteria. In particular, consideration will be given to whether or not the case is suitable for a conditional fee agreement.

Where the client is of limited means consideration should also be given to legal advice and assistance under the Legal Help scheme. Most personal injury cases are again exempted but it allows for a limited amount of free advice on many matters relating to English Law.

Contingency and Conditional Fees
Funding a case by way of a conditional fee agreement has been available in personal injury cases since 1995. Since July 1998, the availability of conditional fee funding has been extended to all civil cases save matrimonial (it remains unavailable for criminal cases). Conditional fees are an exception to the general prohibition against contingency fee arrangements (rule 8 Solicitors Practice Rules). Since the coming into force of the Access to Justice Act 1999 most civil cases are now funded by way of conditional fee agreements, s the only available method of funding.

In essence, a conditional fee agreement means that the solicitor will fund the case to trial. The client will not have to pay their solicitor’s costs until the end of the case, and then only if they are successful. Such agreements have therefore been termed ‘no win, no fee’ (although in fact a CFA could provide for no win, part fee). If they are successful, the costs will normally be met by the Defendant. However, the solicitor will also be entitled to an additional success fee which is calculated to reflect the risk which the solicitor is taking on. It also includes a component to compensate the solicitor for postponed receipt of their profit costs.

Introduction
A Solicitor has a duty of care to his/her clients. This is of course, a matter of law as the retainer is a contract for services which must be performed with care and skill, i.e. not negligently.

Solicitors’ Practice Rule 15: Client Care
In addition to the requirement to provide a proper standard of service, client care has three particular aspects that are deal with by Solicitors’ Practice Rule 15, and the Solicitors’ Costs Information and Client Care Code.

Information for clients
Every solicitor in private practice must ensure that the client:

is given a clear explanation of the issues raised in a matter and is kept properly informed abut its progress (including the likely timetable)
is given the name and status of the person dealing with the matter and the name of the principal responsible for its overall supervision
is told whom to contact about any problem with the service provided
is given details of any changes in the information required to be given by this paragraph.

Confidentiality
A solicitor is under a general duty to keep confidential all his clients’ affairs (and to make sure that his staff do as well). This duty continues forever, even after termination of the retainer or the client’s death. In a similar vein, a solicitor must not, without consent, use information acquired about a former client’s affairs for the purposes of any other client, present or past.

Circumstances which override confidentiality
‘ The duty to keep a client’s confidences can be overridden in certain exceptional circumstances.’

with the express consent of the client
assisting the commission of a crime (knowingly or unwittingly)
to prevent the commission of a crime which may result in serious bodily harm
to prevent continuing child abuse
court order or warrant
matters of public record
in defence against a criminal charge or civil claim or disciplinary mater instigated by the client
under the anti-money laundering legislation.

Duty to disclose all relevant information to the client
A solicitor is usually under a duty to pass on to the client and use all information which is material to the client’s business regardless of the source of that information. There are, however, exceptional circumstances where this duty does not apply. Where a solicitor acts for two or more clients in a matter, a conflict may arise between the duty of disclosure to one client and the duty of confidentiality to the other. Where this occurs, the solicitor is probably faced with a conflict of interests and should deal with the problem accordingly.

Litigation and advocacy
Under the Access to Justice Act 1999, section 36, every solicitor has the right on admission to appear as an advocate in all courts. However, the rights in the Higher Courts are not exercisable without a Higher Courts advocacy qualification. The former very high hurdles that were set out in the Higher Courts Qualification Regulations 1992 (as amended) have been replaced by a more relaxed regime, and it is expected that many more Higher Courts solicitor advocates will be qualified over the next few years.

The Law Society’s code for advocacy
Much of this code restates and reinforces the basic rules of conduct already referred to, e.g. Practice Rule 1; the overriding duty not to deceive or mislead the court; to promote the client’s best interests; conflict of interest; efficient and proper administration of the practice; advertising.

Solicitors’ conduct
There is a general duty for the solicitor acting in litigation never to deceive or mislead the Court. Furthermore he must act generally in a fit, proper and upstanding way.

Duty to the client
If a solicitor advocate is instructed by another solicitor, his or her primary duty as between the lay client and the professional client is to the lay client. The solicitor must also promote and protect fearlessly, and by all proper and lawful means, the client’s best interest without regard to the solicitor’s own interests or to the consequences to the solicitor or to any other person, including a professional client or other members of the legal profession.

Duty to the court
As a general rule, the solicitor is not required to enquire into whether or not the client is telling the truth. However, information may come to the solicitor’s attention that should put him/her upon enquiry. In these circumstances, the solicitor should take whatever practicable steps are reasonably possible to check the truth of what the client is saying.

A client may admit his/her guilt to the solicitor before or during court proceedings, but insist upon giving evidence in the witness box in denying his/her built (i.e. insist on committing perjury). In such an event, the solicitor must decline to act for the client in the proceedings. Providing evidence of the client’s innocence to the court, when the solicitor knows the client to be guilty, would be to mislead the court.

Subject to the above, a solicitor is entitled to take every point, including technical points, which will help the client’s case. The duty, however, never to deceive or mislead the court means that the court should be informed of every point of law, whether case law or statutory, which is relevant, even if against the client’s case. The duty also extends to correcting an omission or error in law made by the opposing advocate, even if the result is to assist the other side. Similarly, any procedural irregularity of which the advocate is aware must be brought to the attention of the court, and not reserved for appeal. This duty is to be found in general terms in Practice Rule 1, and more specifically in paragraph 7.1 of the Advocacy Code.

On the other hand, except when appearing as advocate for the prosecution in a criminal case, there is no obligation to inform the opposing counsel or the court of facts (as opposed to law) which would assist the opponent, unless a relevant affidavit has been filed, when there is an obligation to inform the judge of its existence.

In no circumstances must a solicitor allow a witness to give evidence which the solicitor knows as a fact (rather than merely suspects) is untrue, for example, the client giving a false name or address in criminal proceedings, possibly with a view to hiding previous convictions.

Nottingham Personal Injury Solicitors