The two partners at the same firm who acted for a man convicted of causing death by dangerous driving and the estate of the victim suing him have been cleared of acting in a conflict of interest.
The Solicitors Disciplinary Tribunal (SDT) said the fact the man’s insurer had informally accepted liability early on meant the civil claim had effectively succeeded, and so the outcome of the criminal case would not affect it.
The two solicitors were Guy Adams and Jonathan Rich, both of south-west firm Pardoes. Mr Adams is currently managing partner.
In September 2011, Ms H was killed in a car accident where her boyfriend, Mr D, was driving. The following month, Ms H’s executors instructed Mr Rich to bring a civil claim against Mr D.
In May 2012, Mr D’s insurer, NFU, informally accepted liability even though Mr D was still facing criminal charges.
In August 2012, Mr D left the solicitors acting for him on the prosecution and instructed Mr Adams, but the ‘conflict check’ box on the client matter creation form was left blank.
It was only at a preliminary hearing the following month that the two solicitors found out that the other was acting.
Ms H’s family complained that Mr Rich was basing their case on Mr D’s responsibility for her death, while Mr Adams was “doing [his] best to prove otherwise”.
However, the pair decided that there would only be a conflict if Mr D was disputing responsibility for the accident, which he was not, and so they carried on acting.
In April 2013, Mr D was convicted of causing death by dangerous driving, and sentenced to two years and nine months imprisonment. He was also disqualified from driving for five years.
The civil case settled in 2015 and Ms H’s family received £17,500 after Pardoes’ costs.
The tribunal accepted Mr Rich’s assessment that NFU was prepared to settle the claim irrespective of the outcome of the criminal proceedings, and that the outcome of the trial had not affected quantum or any other outstanding matters in the civil claim.
This meant there was no actual conflict, and it said the insurer’s ability to withdraw its informal admission did not create a significant risk of one.
Whilst there was a risk that NFU could change its mind, it was “low” given that the insurer made its initial admission in the knowledge of the criminal proceedings, the tribunal said.
Mr Rich also told the SDT that, in over 20 years of practice, he had never known an insurer deny liability once admitting it, even informally.
There was a brief period where Mr D was potentially mounting a defence that he could not be proved to have been the driver – he could not remember the accident due to the injuries he suffered – but the SDT said “putting the Crown to proof did not necessarily equate to a denial of responsibility”.
Soon after, Mr D accepted he was the driver based on further evidence.
The SDT found that Mr D’s “potential instructions to put the Crown to proof did not amount to a significant risk of conflict”
Mr Adams did admit to not carrying out the conflict check. Whilst the failure was that of administrative staff, the SDT said it was his responsibility to ensure it had been undertaken.
“He had relied on not hearing that there was a conflict problem, rather than proactively ensuring the conflict check had been completed,” it said.
There was a “small degree of harm caused”, but the firm has since introduced a new automatic conflict checking system to prevent such a situation from happening again.
Mr Adams had “demonstrated genuine insight” into his failure and the SDT said a reprimand was an appropriate sanction.
He was also ordered to pay costs of £1,250.