Do you have the appetite, expertise, and resources to pursue your mandates expeditiously?

November 1st, 2022
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Many of the professional indemnity (PI) claims notified to the Legal Practitioners Indemnity Insurance Fund NPC (the LPIIF) arise from circumstances where the legal practitioners concerned did not attend to their mandates timeously or with the level of diligence, the degree of skill, care or attention reasonably expected of a legal practitioner.

Before accepting an instruction, consider whether you have the appetite, expertise, and resources to pursue the matter. If a matter will not receive your full attention, or is outside of your capabilities, it is best that you do not accept the mandate in the first place.

Matters lying unattended or dormant in a legal practice are a potential source of risk (including the risk of prescription or a complaint to the Legal Practice Council (the LPC)) for the firm.

I will use three decided cases to demonstrate my points. In so doing, I hope that readers will identify the underlying triggers that resulted in the negative consequences for the legal practitioners concerned and take steps to avoid similar actions, or errors in their own practices.

Attempting to lay blame with the client

The first case I consider is Mlenzana v Goodrick and Franklin Inc 2012 (2) SA 433 (FB).

The plaintiff’s husband had died because of injuries he sustained in a motor vehicle accident that occurred on 22 June 2004. She instructed the defendant (a firm of attorneys) on 17 August 2004 to pursue a claim for loss of support against the Road Accident Fund (RAF) on her behalf. The plaintiff’s cause of action against the defendant was based on an alleged breach of the mandate that she had given to the firm, in that the defendant had wrongfully neglected to lodge her claim with the RAF within the three-year prescription period in s 23 of the Road Accident Fund Act 56 of 1996. She alleged that prescription of her claim could have been prevented had the defendant exercised the care and diligence that could reasonably be expected of an average legal practitioner.

The defendant defended the action. The essence of the defence was that the failure to lodge the plaintiff’s claim timeously was not caused by negligence on its part (at para 9). In its plea, the defendant laid the blame for its failure to lodge the claim timeously with the plaintiff. The defendant alleged that the plaintiff had failed to furnish it with certain information and to sign certain documents necessary to lodge her claim and that the defendant was unable to obtain necessary information from the deceased’s employer.

For current purposes, I draw attention to the following points made in the judgment –

  • the plaintiff’s complaint that the attorney was difficult to reach, she (the plaintiff) did not receive progress reports and when she went to the defendant’s office, she was either told that the matter was being attended too or that her attorney was not available (para 46);
  • the concessions made in cross-examination by the attorney who dealt with the matter regarding the required information she had received from the defendant (para 50);
  • the attorney’s understanding of the legal position regarding the quantification of RAF claims. On this point, Rampai J unflatteringly commented – ‘The law was lamentably misconceived’ (at para 52) and that this ‘was a clear misconception of the law’ (para 72);
  • the attorney’s lack of file notes for the specific consultation to support her version that she only received the deceased’s salary advice after prescription (para 57). No file notes were kept even of the second consultation she had with the defendant on 16 September 2005, which was more than a year after the first consultation (para 78);
  • that the defendant had all the necessary information to meet the substantial compliance requirements for the submission of a RAF claim form approximately five months before the prescription date (para 70) but failed to submit the claim timeously;
  • the numerous letters written by the attorney to the plaintiff requesting information that she either already had (para 77) or could readily obtain herself (paras 80 to 86);
  • the failure of the attorney to note the obvious breakdown in communication between herself and her client (para 78); and
  • the court’s description of the attorney’s actions as ‘a chronicle of procrastination and neglect’ (para 89).

The defendant was found liable to plaintiff for damages as may be proved or agreed (para 103).

An unexplained delay of more than a decade to get to trial

In Nene v Road Accident Fund (GJ) (unreported case no 2012/41577, 12-1-2022) (Weiner J) Weiner J had made an order requiring the plaintiff’s attorney to depose to an affidavit explaining why –

  • the matter took ten years to get to trial;
  • an amendment of R 10 million in the quantum claimed was served on 13 June 2019;
  • the attorney should be entitled to fees under the Contingency Fees Act 66 of 1997; and
  • the attorney should not be reported to the Legal Practice Council (LPC).

The attorney’s explanation was that he had been instructed by the plaintiff on 3 September 2009 to pursue a claim against the RAF to recover damages she had suffered because of injuries she sustained in a motor vehicle accident. His affidavit set out a chronology of events covering the period from the date that he was instructed until the matter was eventually placed on the trial roll on 16 August 2021. It was gleaned from the chronology provided by the attorney that there was a lapse of time between the time that the RAF’s plea was served on 8 May 2013 and 20 March 2017 when the attorney contacted the RAF to ascertain who its new attorneys were as the RAF had changed its panel attorneys sometime after the plea had been delivered. The plaintiff had been informed on 20 March 2017 that a trial date would be obtained when the RAF appointed new attorneys. The RAF’s new attorneys came on record on 12 April 2017. The plaintiff was informed on 29 March 2017 that she was required to attend medical assessments, but the assessments only took place 18 months later and the RAF then also requested the plaintiff to attend its own medical assessments. A trial date was only applied for 18 months later (14 September 2018) and the date allocated was 23 October 2019. There were further delays occasioned by the fact that the RAF wished to still appoint its own medical experts to conduct medical assessments. The RAF’s medical reports were ultimately served in September and October 2019, followed by the joint minutes also in October 2019. The plaintiff’s attorney allowed another 15 months to lapse before applying for a case management meeting to be held. The matter was then placed on the trial roll for 16 August 2021.

The court found (at para 4) that there were large gaps where there were no explanations for the delay, the explanation was unacceptable, the attorney’s conduct deserved censure and that ‘[a] plaintiff who has had to wait for 12 years for her matter to come to trial has not received professional, ethical, and proper treatment from her attorney. It amounts to negligence and ineptitude.’

The attorney’s explanation for the amendment of the quantum from a total of R 350 000 to R 10 million, described by the court as ‘astonishing’ (para 5), was that:

‘It is common practice in the firm, that amendments to the Particulars of Claim are done. The goal of the amendment is to ensure that the plaintiff receives the best possible recourse for the injuries suffered. It is common knowledge that in this particular matter, the Actuarial Calculation reflects an amount which is substantially less than what is being claimed on the Amended Pages. However, an Actuarial Calculation cannot be read in isolation as it is not exclusive evidence. An amendment can thus be made for a higher amount in the interest of the plaintiff. It is also common knowledge that an amendment does not necessarily mean that the outcome by way of trial or settlement will be exactly what is claimed on the Amended Pages. The amount which the plaintiff may receive at the finalisation of a matter may be the amount reflected on the Actuarial Calculation, an amount stated on the Particulars of Claim or an amount between what is claimed and what the calculation reflects.’

The claim was settled for an amount of R 139 209 (para 8) and the court found that ‘[the] amended claim was thus totally unrelated to the actual damages suffered by the plaintiff. This conduct is egregious, grossly unprofessional, deceitful, and worthy of censure.’

The explanation given by the attorney on why he should be entitled to fees in terms of the Contingency Fees Act was also found to be unsatisfactory (para 10) and he failed to explain the 12-year delay for the matter to be heard. The attorney’s conduct was referred to the LPC for investigation (para 15) and the attorney was ordered to strictly abide with the compliance requirements set out in ss 4(1), (2) and (3) of the Contingency Fees Act (para 14).

An unexplained delay to interrupt prescription

In Minister of Police v Masina (SCA) (unreported case no 1082/17, 28-3-2019) (Matojane AJA (Tshiqi, Wallis, Zondi and Van der Merwe JJA concurring)) the respondent was injured on 16 May 2012 when he was allegedly shot by a member or members of the South African Police Service (SAPS) while participating in protest action. He claimed that he only became aware of his right to institute a claim against the Minister of Police (the minister) in February 2013 when an acquaintance – who had also been shot in the same protest action – requested him to consult with his (the acquaintance’s) attorneys regarding the events on the date of the alleged shooting. On 10 September 2013 the plaintiff accompanied his acquaintance give a statement in support of a claim to the attorney’s acting for the latter in a claim against the minister. He gave a statement to the attorney and enquired about the possibility of instituting his own claim against the minister and was informed that he would have to instruct the firm formally to act for him, which he did in approximately June 2014.

The minister defended the action and raised two grounds of prescription, being –

  • the failure to timeously comply with s 3(1) and (2) of the Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002 (the Act); and
  • a special plea of prescription as contemplated by s 11(d) of the Prescription Act 68 of 1969.

The appellant’s attorneys launched an application in terms of s 3(4)(b) of the Act for condonation of his non-compliance with the requirements to give notice. That application was granted by the court a quo and the minister appealed against that decision.

The Supreme Court of Appeal found (at para 13) that the appellant knew that his claim lay against the police and that he should have taken immediate steps to enforce his claim. Matojane AJA (as he was then) stated that:

‘There was no explanation for his failure to try and pursue a claim after February 2013 until June 2014. Furthermore, there was no explanation for the failure of his attorneys to pursue the matter expeditiously once he instructed them to do so in June 2014. The notice was only sent to the Minister of Police in September 2014. The particulars of claim were prepared in February 2015, and the summons was issued on 28 April 2015. It was only sent to the sheriff on 15 May and served on 19 May after the expiry of the three-year prescriptive period. This delay was also unexplained’ (para 17, my italics).

The appeal by the minister was upheld and the application for condonation was dismissed with costs.

Lessons learned

Legal practitioners must act on all instructions from clients promptly.

The Code of Conduct for all Legal Practitioners, Candidate Legal Practitioners and Juristic Entities prescribes that:

‘3. Legal practitioners, candidate legal practitioners and juristic entities shall –

3.11. use their best efforts to carry out work in a competent and timely manner and not take on work which they do not reasonably believe they will be able to carry out in that manner;

3.13. remain reasonably abreast of legal developments, applicable laws and regulations, legal theory and the common law, and legal practice in the fields in which they practice;

18.3. exercise proper control and supervision over his or her staff and offices;

….

18.14. perform professional work or work of a kind commonly performed by an attorney with such a degree of skill, care and attention, or of such quality or standard, as may reasonably be expected of an attorney.’

Regular assessments and audits of all the files in the practice, proper supervision and oversight are some of the measures that can be implemented to mitigate the risks highlighted in the three cases referred to.

If you do not have the appetite, expertise, capacity, and resources to pursue the mandate timeously and adequately, it is prudent to decline the instruction and suggest that the client instruct another attorney instead.

 

Thomas Harban BA LLB (Wits) is the General Manager of the Legal Practitioners Indemnity Insurance Fund NPC in Centurion.

This article was first published in De Rebus in 2022 (Nov) DR 10.

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