Remember to seek your client's instructions


Mrs S had been injured in a road traffic accident. Liability was far from clear, but she decided that it was the other driver's fault and instructed the solicitors to commence proceedings. She entered into an after-the-event insurance contract for funding purposes, coupled with a conditional fee agreement with the solicitors.


An agreement was reached between the solicitors and the insurers for the third party. Liability would not be considered an issue provided Mrs S accepted some contributory negligence. The solicitors properly explained the circumstances to her and she agreed to concede 20%. She had suffered a quite unpleasant back injury and it would be some time before her medical condition settled down sufficiently to enable a detailed medical assessment and quantification to take place.


The insurers were informed and agreed the terms. The solicitors recorded everything to Mrs S, who expressed her own agreement and an appointment was made with an orthopaedic back specialist for about a year later.


At the time of the further examination, Mrs S complained bitterly about her continued symptoms and her disability. The specialist did not echo her concerns. His report was damning of her alleged symptoms and indicated that she had made an almost complete recovery. The solicitors, anxious about the position, sent a copy of the report to the funding insurers. Regrettably, they did so without seeking Mrs S's instructions or comment and without establishing whether or not Mrs S wished to express a view. At, or about, the same time, the defendants, who had not themselves yet seen a copy of the medical expert's report, made a payment into court. In the light of the medical opinion, if correct, the payment would be considered generous. The funding insurers were also informed.


Unsurprisingly, the insurers indicated that if Mrs S would not accept the payment into court, they would withdraw their financial support. Mrs S was unhappy and transferred her instructions elsewhere. She later settled her claim for far less than her expectations.


She made a complaint to the former Office for the Supervision of Solicitors on the basis that her instructions had not been sought. The solicitors argued a duty owed to the insurers to keep them aware of each development as it unfolded. While such a duty was agreed, it did not remove the solicitors' obligation to ensure that their client's commentary and instructions were submitted at the same time.


A finding of service inadequacy was made. The solicitors offered to reduce some outstanding indemnity costs by a substantial amount. Mrs S rejected the proposal. The adjudicator found it to be reasonable and endorsed it in his decision.



Every case before the adjudication panel is decided on its individual facts. This case study is for illustration only and should not be treated as a precedent