Butler: Defendant solicitors should be offering consent order
A solicitor helping former litigation clients of PM Law has called on others to take on cases – and for defendant solicitors not to take advantage of the situation.
Alisha Butler, director of Phoenix Legal Solicitors in the Wirral, also highlighted the difficulties of reconstructing client files given the way they were being transferred electronically.
She attracted attention this week when she wrote on LinkedIn that, in some of the cases it had taken on, there were “directions missed, applications to strike out claims for failure to comply with directions, clients saying they have been over 12 months without any updates, and people left in a panic about costs orders against them”.
She went on: “What is also apparent is that there are defendant solicitors engaging in conduct that I would say is akin to taking advantage of these poor people with applications to strike out their claims, which they know will then result in the loss of QOWCS [qualified one-way costs shifting] protection if a strike out happens.
“A strike out may be likely as these clients are struggling to find firms to take over the cases, particularly at such short notice with trials listed and applications listed.”
Ms Butler argued that solicitors “should not be taking advantage of people who do not know the law or how to deal with a case having been abandoned by their legal representation. We have a duty to act with integrity and I am saddened that this is happening to these people”.
Speaking to Legal Futures, she suggested that defendant solicitors have a duty to notify claimants that they have the option of making an application to stay the claim.
“But ideally, I would want to see defendants asking them to sign a consent order and submitting that on their behalf to stay the claim for at least three months to give them the opportunity to find alternative legal representation.
“I think that would be the fairest way of dealing with it. I understand they have a duty to their clients but they need to be realistic and understand that these people have been put in a really awful position through no fault of their own.”
Ms Butler said judges dealing with strike-out applications should also give former PM Law clients “an opportunity to go and find alternative representation” – the firm’s collapse should generally meet the test for relief from sanctions.
Further, the Solicitors Regulation Authority (SRA) should be giving “very clear guidance that the defendant should be helping these litigants in person as much as they possibly can, without stepping over the line of not acting in the best interest of their client.”
Ms Butler explained how PM Law client files were coming through electronically from the SRA. In one matter, Phoenix has received 4,000 individual documents that needed to be opened and then saved.
“They’re not even named correctly, so it’s making it really difficult. The SRA have started sending the paper files to the clients, which is helpful, but then obviously the clients have got to pay for those files to be sent to us, which they don’t want to do… But we’re now waiting for paper files because that would be quicker for us.”
Phoenix has three people working on reconstructing the files at the moment – out of a staff complement of 12. It has 10 files open and five on the way, with further inquiries coming every day.
“I also wish that other firms would step up and say, ‘Look, we’ll help. We’ll take 10 cases.’ I think we have a duty to help the public. Is that not why we do what we do?”
More broadly, Ms Butler deprecated the trend of personal injury firms taking funding, growing rapidly and then collapsing, “whilst smaller firms like ours really try to do our best for people within the confines of what we can do”.
She went on: “It’s difficult. We don’t have funders, we don’t have any loans, we don’t even have an overdraft. So for us to try and grow as a business, we have to do that off the profits that we make.”
Even though Phoenix would make little money from the cases, “I will not leave [clients] stranded without legal representation whilst vultures circle in the hope of getting an advantage if they succeed in a strike out”.
Responding on LinkedIn, Mark Hambling, a partner at Norwich firm Rogers & Norton, said: “We have also been assisting some affected clients in both our property and PI teams.
“Some of the stories do raise concern, but I agree with Alisha Butler that these people need help and we should be there to provide it.
“With a good approach to risk assessment and acknowledging that judges may on applications be sympathetic (I accept I can’t guarantee that) to the client, many of these cases can still be successfully pursued.”
Separately, Charlie Davidson, a senior associate at London law firm Bishop & Sewell, said it was looking to help PM clients whose property transactions may have completed, but registration at HM Land Registry remained outstanding.
“Applications sit pending. Requisitions may be unanswered. Files are now held by the intervention agent. Deadlines, of course, continue to run. For the clients concerned, it creates an uncertain and deeply unsatisfactory position.”
It is offering to take over the applications for a fixed fee of £370 plus VAT. “No one should imagine this will be a profitable exercise. That is not the point. When something as unusual as this occurs, the profession works best when experienced firms provide a little steadiness and bring unfinished work to its proper conclusion.”
Meanwhile, Companies House filings have confirmed the appointment of a liquidator at PM Law, with a statement of affairs saying the firm owed £3.6m, nearly £3m of which was to Virgin Bank and £280,000 to HM Revenue & Customs.