I recently came across the judgment in the matter of Trollip v Phatshoane Henney Attorneys (FB) (unreported case no 3683/2018, 23-6-2022) (Loubser J), which, inter alia, dealt with the failure of an attorney to inform his client that because of his negligence he recovered an amount for the client far less than the amount of the original claim.

Mrs Trollip was injured in a motor vehicle accident and, as a result, instructed her attorney to investigate, lodge and prosecute a claim for compensation from the Road Accident Fund (RAF). The attorney, on receiving these instructions, arranged for Mrs Trollip to undergo a medico legal assessment with a medical practitioner and on receipt of the report, lodged the claim and issued summons out of the Regional Court.

During the course of the litigation the attorney arranged for Mrs Trollip to be examined by other experts and on receipt of their reports he noted that the quantum of her claim could well exceed the monetary limit of the jurisdiction of the Regional Court and after consulting with counsel, he established that it was not possible to transfer the proceedings from the Regional Court to the High Court. As a result, he succeeded in recovering from the RAF the sum of R 400 000 being the limit of the Regional Court jurisdiction and paid over such amount to Mrs Trollip after deducting his irrecoverable costs and expenses. The attorney failed to inform his client that he had failed to claim appropriately in the High Court and that had he done so, he could well have recovered a higher quantum.

The attorney, in giving evidence at the trial in respect of which his firm was sued by Mrs Trollip for professional negligence, testified that he did not see it as his duty to inform his client that it was as a result of him having issued summons out of the Regional Court instead of the High Court, he was not able to recover any further amounts for her.

On this very issue Loubser J at paras 21 and 22 noted:

‘The second defendant further testified that, on 9 July 2015, the plaintiff was not aware that she could claim from him or the first defendant. She was only aware of the fact that she had a bigger claim than the R 400 000,00. He testified that he did not inform her that her limited claim was the result of his negligence, and that she could seek the assistance of another attorney in the circumstances. He did not regard it as his duty to inform her as such, he testified.’

As for the duty to inform, I cannot agree with the second defendant. When there is a conflict between an attorney’s own interest and the interest of a client, the interests of the client must certainly prevail. This is not the point, however. The point is that the second defendant did not inform the plaintiff, therefore wilfully preventing the plaintiff to know of the existence of the debt.’

At para 24 the judge stated:

‘A feature that stands out in this respect, is that the defendants persisted in the special plea of prescription while the second defendant was well aware of the fact that he had withheld crucial information from the plaintiff on 9 July 2015, which caused her to lack the necessary knowledge on that day to realise that there had been negligence and that this had caused the claim to be limited. It speaks for itself that the plaintiff had to incur costs to resist the special pleas and, in the prevailing circumstances, I can find no reason why the plaintiff should be left out of pocket.’

Loubser J relied on the finding of Pretorius J in the case of Ekman v Venter & Volschenk Attorneys and Another (GP) (unreported case no 44655/2013, 1-7-2015) (Pretorius J) who at para 42 stated:

‘In regards to the 2006 case, he conceded that he only told the plaintiff on 26 July 2010 that the 2006 claim had become prescribed and on that date he informed the plaintiff of the option of seeking another attorney to deal with the matter. The failure to disclose the prescription immediately, as well as the consequences thereof was a duty which the first defendant conceded he had had, but did not comply with. The defendants did not act in this matter in a manner that is expected from a diligent, hardworking attorney. A reasonable attorney would have seen to it that he pursued both claims diligently, whilst keeping the plaintiff up to date on the progress of his claims. A reasonable attorney would immediately have informed the plaintiff of the prescription of his claims and would have advised the plaintiff how to deal with it. Due to the first defendant’s concession in this regard the court finds that the first and/or second defendants are guilty of not acting as a reasonable attorney or firm of attorneys would have acted under these circumstances.’

Now, I respectfully submit that placing on an attorney a duty to inform his client that the client has a claim against him for professional negligence, causes the attorney to be in breach of clause 24 of the Master Policy of the Legal Practitioners’ Indemnity Insurance Fund NPC, which reads as follows:

‘24. The Insured:

24.1. shall not cede or assign any rights in terms of this policy;

24.2. agrees not to, without the Insurer’s prior written consent:

1. a) admit or deny liability for a Claim;
2. b) settle a Claim;
3. c) incur any costs or expenses in connection with a Claim unless the sum of the Claim and Claimant’s Costs falls within the Insured’s Excess;

failing which, the Insurer will be entitled to reject the Claim, but will have sole discretion to agree to provide indemnity, wholly or partly’ (my italics).

It follows that had the attorney(s) in the cases quoted above admitted to the client that it was his negligence, which caused the client to suffer the financial loss because he has a duty to make such a disclosure, the attorney’s claim for professional indemnity cover for these claims would have been repudiated on account of such disclosure being in breach of clause 24 of the Master Policy.

This is surely a case of heaven help the attorney if he does and heaven help him if he does not.

On 1 September 2022, the court dismissed an application for leave to appeal the judgment on the basis that the judge did not believe there was a reasonable prospect that another court would come to a different conclusion.

Leslie Kobrin Dip Iur (Wits) Dip Bus Man (Damelin) is a Consultant Legal Practitioner at Bove Attorneys Inc in Johannesburg.

This article was first published in De Rebus in 2022 (Nov) DR 4.