THE ROLE OF THE AGENT IN PERSONAL INJURY CLAIMS

By Ray Deans 

One of the more common sources of work available to Private Investigators and Enquiry Agents are instructions either through another agency such as Legal Consultancy Services, or direct from a Solicitor to attend upon the Solicitor Client to proof them for a statement and carry out the requirements to set up funding for the claim, on behalf of the Solicitor. 

After many years in practice, I have seen all sorts of instructions returned, some excellent, but just a few requiring a lot of revision and ultimately a second visit to my client.  One must always appreciate that a litigation fee-earner can be running between 100 and 200 files, so having to revise and re-instruct can be costly in time and costs.  In addition, law firms are very risk adverse, especially when it comes to the risk of a negligence claim by a disgruntled client. 

In this article, I will look at the legal basis that permits a Solicitor to delegate tasks to an Agent, as well as discussing the individual documents.  This is not exhaustive, and instructions vary from firm to firm.  This is simply a broad outline of the requirements and the reasoning behind the same as I see it, and should not be relied upon in any way (here speaks the Lawyer).  In light of this, the place to seek clarification of your instructions, is from the solicitor providing the same, as only they know exactly what is required. 

Firstly, there is a myth that the client can only speak to a solicitor in person in order to set up the funding required.  This is wrong.  In the TAG test cases that came before Chief Master Hurst, the senior costs judge in The Accident Group Test Cases: Sharratt –V- London Central Bus Co And Other Cases (2002), the court found that: 

“[T]here can be delegation within the firm or recognised body. It must also follow that there can be delegation to a duly authorised agent. Questions may arise as to whether the agent is competent to carry out the required task, or indeed whether the task has actually been carried out competently. These however are questions of quality which are not for this judgment. As with internal delegation to an incompetent member of staff it is the legal representative who bears the consequences if the appointed agent does not carry out the task correctly. Incompetence by the delegate does not invalidate the delegation.” 

This is an interesting case as it not only settled the right of the solicitor to delegate, but also pointed out that the solicitor is responsible for ensuring the agent is actually “up to the job”.  Whilst this may generate a lot of requests for evidence of professional status and experience that may seem tiresome, it is clear that a solicitor would be foolish to instruct without taking reasonable steps to ensure the competence of an agent. 

Turning now to some of the requests for information that are contained within a solicitor’s instructions.

 Legal Expenses Insurance/Conditional Fee Agreement

The main type of funding agreement between solicitor and client is the Conditional Fee Agreement (CFA.  This provides the retainer between client and solicitor, the agreement, which provides a means of the client paying, and the solicitor taking instructions.  The request to check for pre-existing legal expenses insurance will certainly accompany a request to explain the funding documents required to enter into such an agreement. 

 This is vital if the solicitor is to avoid falling foul of the requirement to ensure that there are no other means of funding a case.  Without getting into a detailed history of what a client must be told, it is far easier today to explain the CFA, commonly referred to as a “no-win-no-fee agreement”, than in the past.

The procedural requirements have been simplified and recent case law has shown that even if these are not adhered to (at least in fast-track RTA matters), the situation that could arise of no proper retainer being in place cannot in itself allow the unsuccessful defendant to avoid the costs in a claim.  This was made clear in Nizami -v- Butt (2006) where at paragraph 26 of the judgment Simon J stated:

“In cases falling under CPR 45 Section II the receiving party does not have to demonstrate that there is a valid retainer between the solicitor and client merely that the conditions laid down under the Rules have been complied with.”

It is being argued now that the CPR themselves, and not the retainer between client and solicitor, are the basis for payment of costs and we await the appeals and voluminous satellite litigation that will follow this decision. 

Statement

With regard to the statement, this unsurprisingly does not pose much of a problem for a professional group full of ex-police officers and military personnel.  However, the requirements of the solicitor can be extensive and far beyond the bare bones of the accident circumstances.   

The statement is now required not just to provide not only what happened, but also details about the physical and financial impact of the accident, personal data to allow matters to be registered with the Compensation Recovery Unit of the Department of Social Security, as well as capturing details of potential witnesses and if possible, as much additional information as is required. 

In short, the statement should provide the fee-earner dealing with the matter with a one-stop document for all the information required to run a case.

Medical Authority

The solicitor will also need to be able to get access to the client’s medical notes and there are standard format documents informing the client of who will see their notes within the litigation process.  This is an important step and a simple one-paragraph letter to a hospital, signed by the client, will generally not result in notes being released. 

Attendance Note/Record of Time and Work

A fact you may not be aware of, is that the solicitor can claim for your time and not just your fee.  This was confirmed in the matter of Stringer –v- Copley (2002) which can actually allow the solicitor to charge for the time you have spent on a matter, as if it were his own.  This is so in matters where the CPR does not fix fees. 

In light of this, it is good practice to ask if such a note is required, and also what format is required. 

Finally, it is worthwhile remembering what the head of HR in a large international law firm told my fellow law students and me during a presentation about applying for jobs.  The answer to the question about what a lawyer does in a firm is “they make money”. 

Ray Deans

Legal Consultancy Services 

About the Author

Ray Deans is the Principal of Legal Consultancy Services, a firm providing claims handling, investigation of accidents and legal support services tailored to the individual requirements of the legal professions and insurers alike.  They have opportunities for agents who are sole practitioners, or partners in small firms who can deal with RTA/CFA work, EL and PL matters, and would welcome enquiries from interested agents who should visit www.legalconsultancyservices.co.uk and look at the ’Opportunities’ section of the site.