Clerk who pursued PI claims against wishes of clients banned by SDT

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16 June 2017

Injuries: clerk was running 400 files

A clerk who pursued personal injury claims against the wishes of his clients has been banned from working for law firms by the Solicitors Disciplinary Tribunal (SDT).

The tribunal heard that in 22 of 36 personal injury cases handled by Michael Davis and investigated by the Solicitors Regulation Authority (SRA), “the client had notified the firm that they did not wish to pursue a personal injury claim”.

The SDT said the clerk had failed to obtain signed client retainers, signed conditional fee agreements or “any other written confirmation of instructions from clients stating they wished the firm to act on their behalf”.

The tribunal said Mr Davis, who worked for a law firm referred to as ‘CSL’, had completed claim notification forms on behalf of clients who indicated that they had not instructed the firm.

The clerk made representations to insurers that they would be attending medical examinations and “subsequent attempts to obtain pre-medical offers” in circumstances where clients had “cancelled instructions to the firm and had no intention of attending a medical examination”.

In one case, the client emailed the firm, asking “who gave the authority” for a medical appointment to be made on his behalf.

He said he wished to “make absolutely clear that I have not and do not have anything to do with this” and added: “In my opinion, your action is no more than ‘having a punt’ at a claim!!”

After closing the file, Mr Davis recorded that “the client has never instructed us to make a claim and has reported us to the SRA… I think we set this one up as a punt”.

In another case, the client received £538 – after a 25% success fee and ATE insurance was directed – from the third-party insurer even though she had not instructed the firm after her initial call.

A file note recorded that the client later attended another firm of solicitors, which told CSL she had “never signed any paperwork or accepted any offers” and was “unsure why she has received a payment”.

In a third case, despite an associate solicitor at the firm saying that the client had “emailed to cancel” and had “asked not to be contacted again”, Mr Davis continued to “process a personal injury claim on his behalf”.

Having received a cheque for £725,50, the client “wrote to the firm objecting to the suggestion that the firm had settled his claim and confirming that he did not consent or agree to the claim being made”.

In a further case, that of the ‘J family’, the firm wrote to an insurer asking if they wanted to “put forward any pre-medical offers” despite the fact that a medical agency had told the firm that Mrs J did not want to pursue a claim on behalf of her child.

The SDT found that Mr Davis had made representations to insurers which were “inaccurate and misleading”, failing to act with integrity and maintain public trust.

In his defence, Mr Davis argued that “due to the passage of time he was unable to recall the exact circumstances regarding each of the clients mentioned in the report, but stated that the had acted in accordance with office procedures at the time”.

Mr Davis said he was responsible for “managing up to 400 live cases at any one time” and was “under the impression that even if the clients did not wish to attend a medical appointment, he was under a duty to act in the client’s best interests by to secure a pre-medical offer”.

However, the SDT said that although Mr Davis “may well have been in an invidious position”, he had “considerable experience, having worked in the legal sector for nearly 25 years”.

The SDT said Mr Davis had informed it that he was no longer working for CSL and “did not intend to pursue a career in the law any further”.

He was banned for working for law firms under section 43 of the Solicitors Act 1974 and ordered to pay costs of £2,000.

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