Crossed wires

J was a tenant of business premises owned by a local authority. A notice under section 25 of the Landlord and Tenant Act 1925 was served, seeking to determine the tenancy. J instructed solicitors to serve a counter notice and to request a new term. An assistant solicitor served the counter notice and then referred the matter to his supervising partner, suggesting an application to the court to protect J's interest.


The partner misunderstood and began a new file creating confusion between the two solicitors. The solicitors were out of time in serving the application, and the local authority took issue on the delay. Other difficulties arose that later resulted in a successful claim in negligence against the solicitors.



J later complained that both the assistant and his supervising partner had acted in breach of principle 29.0.9 of the Guide to the Professional Conduct of Solicitors, 1999, eighth edition. He alleged that they had failed to advise him that he had a possible action in negligence against the firm when the date for application to the court was missed. When put to him, the partner resisted the complaint on the basis that at the time, he had believed there was 'a general discretion' not to enforce time limits in cases when on-going negotiations were taking place.



Two problems arose. Firstly, the partner made an assumption that he could 'get round' a delay in filing proceedings beyond the limitation date. Secondly, what was the assistant's position? He had served a counter notice within time and had passed the matter to a principal. He was also aware of the requirement to meet a limitation date.


In the event, no finding of professional misconduct was made against the assistant solicitor. He had passed the matter, with a file note, to his supervising partner and thereafter had no control. There might have been a better liaison between the two, but that was not a conduct issue. J did not wish the Law Society to consider inadequacy of professional service issues, and that aspect was not pursued.


As to the supervising partner, his belief, albeit wrong, was entirely sincere. In correspondence with the Law Society, he referred to other occasions when similar circumstances had arisen and had been resolved without difficulty. He accepted that he should have advised his client to seek independent advice, irrespective of the outcome of the matter, once the local authority had taken a firm stance and it was apparent that he was unable to resolve the situation by negotiation.


J had been successful in his negligence action against the firm and had suffered no consequential loss. The solicitor apologised for what had been a misconception on his part. The adjudicator expressed disapproval of his conduct and took no further action against the assistant solicitor.



- The guidance referred to recently on compensation (see [2004] Gazette, 18 November, 37), can be found by searching on the Law Society's Web site for the publication: Handling Complaints Effectively, which contains both the awards guidance and advice for solicitors on all aspects of complaints handling.



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