Paul Smith is a solicitor and risk consultant who works alongside some 20 lawyers across the Travelers claim, risk and underwriting teams. He helps law firms to identify and avoid professional indemnity insurance risks.
Here he explains some common errors in commercial property work and how to avoid them. (1 May 2019)
Commercial conveyancing work generates high numbers of expensive negligence claims against law firms. In our data, the number and cost of the claims is second only to residential conveyancing.
The largest number of claims involve defects in leases and assignments, followed by issues around completion and registration.
The most expensive claims concern title issues, followed by licences and consents.
A mix of issues – VAT and tax, searches and enquiries, and plans and boundaries – are relatively infrequent and are usually resolved at relatively low cost.
We also see some dishonesty cases. But based on our data, these are infrequent and have limited cost impact.
This article highlights some of the more common issues, and how your firm can reduce the risk of a claim.
1. Agreeing the retainer
Around 40% of commercial property claims are linked to some failure to agree the retainer. Often, the problem starts with a lack of clarity around the facts and what the client wants.
For example:
- not including the requested restrictive covenants in an onward sale of land
- failing to establish the extent of a deed of easement for access granted by the client
- Get the facts. Understanding exactly what the matter involves reduces the chance of a mismatch between what the client wants and what gets recorded in any document.
- Be clear on licences, assignments and consents. These are common problem areas.
- Document the retainer. This helps identify your client’s intentions and manage expectations. It also flags up any assumptions that need to be discussed. Is tax advice included?
- Schedule any deadlines. Time-limits tend to arise at registration and completion. Schedule key actions such as registrations and serving any notices and highlight them in your planning for each matter.
- Document any late instructions. Problems often arise when instructions change, so make attendance notes and immediately amend any plans that need to change.
Establish the underlying facts
When receiving instructions from a client, a checklist approach can be extremely helpful in establishing the facts. For example, in the case of a property purchase, here are a few illustrative headings:
- Who is the buyer? And the seller?
- Who occupies the premises now? And who will afterwards?
- How is the purchase being funded? Is this lined up?
- Is a survey planned? What are the issues?
- What about insurance?
- What searches are needed?
- Is planning permission or any licensing required?
- What are the tax issues, including SDLT?
- What about an Energy Performance Certificate, a Fire Risk Assessment, an Asbestos Report, and any other Health & Safety issues?
- What about electricity and other utility contracts?
- What are the key objectives and negotiation points? Is there more than one potential buyer?
- …and so on
2. Drafting errors
Drafting errors produce over a quarter of the claims we see in commercial property work, mainly in work involving leases and assignments.
For example:
- a rent review formula using the wrong date for identifying the relevant retail price index
- a landlord’s counter notice alleged to be invalid
- leases granted that were longer than the client’s own superior leasehold interest
- an assignment alleged to be invalid as the attestation page in the licence was from a prior version of the document
Various different causes can drive drafting error. Typical issues include frequent and complex changes to instructions shortly before completion dates; demanding clients; poor record-keeping; and overstretched fee-earners with insufficient time and resource to review documentation.
- Review draft documents systematically. Use drafting software, or operate the ‘four eyes’ system where one person reads out the document as another follows the text to spot errors. Work through any formulae.
- Track individual workloads. Avoid overloading people.
- Recognise that reviewing documents is hard work. Concentration levels fall quickly, especially when no problems are apparent at an early stage. It’s easy to become ‘routine-blind’ to error.
3. Progressing the matter
Once a matter is in progress, it can be easy to miss steps in the process and miss deadlines.
For example:
- the withdrawal of a prospective tenant after a delay in producing a lease
- forfeiture of the deposit when notice to terminate a conditional contract was served out of time
- a lender who ultimately lost priority when Land Registry requisitions on the lender’s charge were ignored
The underlying cause tends to be systems failure – not using the retainer documentation to manage the process, not following the systems that are in place, or simply lacking adequate systems in the first place.
- Track and review progress. Avoid the last-minute scramble to complete work.
- Have systems to support legal service delivery. For example: client acceptance; file opening and closure processes; multiple diary systems; checklists for mapping workflow and guiding activity on a matter; work handover processes.
- Supervision. Monitor workloads and identify issues.
4. Not following clear instructions
Some claims reflect a serious mismatch between what the client believes has been agreed and what appears in the documentation.
For example:
- a law firm provided an architect’s certificate which did not comply with the CML Lenders’ Handbook (now the UK Finance Mortgage Lenders’ Handbook), potentially reducing the value of the lender’s security
- the client had wanted to retain a right of way over land being sold off, but the firm failed to obtain consent from the buyer’s mortgagee
- Check the client’s agreement with the terms of the retainer in the first place. This helps to reveal any errors or omissions.
5. Legal advice
Around a third of claims relate to advice failures. These can be the result of getting the law wrong or getting the facts wrong.
For example:
- not checking the agents’ assurance that an underlease was excluded from the security of tenure provisions of the Landlord and Tenant Act 1954 Part II
- failing to advise that the winding-up of a flat management company would render vacant flats in a development unsaleable
- a discrepancy between the extent of the property and the filed plan
- failure to check that a director of the client company was a director at the time of the sale
- on a clients' transaction to acquire share capital in a company that was purchasing a property, failure to register a charge on that property
- not advising on the tax implications of a transaction – often when the retainer is unclear on the obligation to provide tax advice to the client
- using the lender’s legal charge for residential property rather than commercial property
Advice failure can be caused by the sort of process and systems issues discussed earlier.
Problems also arise when there is a communication breakdown, people lack support or are unsupervised, and the firm’s culture does not encourage discussion and information-sharing.
At least part of the solution is to give people the support they need to give the right advice.
- Promote an ‘open door’ culture. Encourage discussion of challenging cases and issues.
- Create ‘knowledge exchanges’. Provide regular opportunities to raise and discuss issues, and to tap into colleagues’ knowledge.
- Offer mentoring schemes. This can be a structured way for knowledge to be passed on.
- Set up feedback schemes. These provide opportunities to discuss risk issues, including both claims against the firm and ‘near misses’ – where things have gone wrong without ultimately resulting in a loss or claim.
6. Completion and registration
Time-limits tend to arise at registration and completion. Schedule key actions and highlight them in your planning for each matter.
For example:
- failing to serve a notice in time to terminate a conditional contract, leading to the forfeiture of the deposit
- failing to register charges over several properties, which secured loans to several people
- serving the notice after the relevant time limit had expired, in a case where a client entered into a conditional contract which should have become unconditional when the client had earlier instructed the law firm to waive a particular planning condition
- Do you use a multiple diary system and task planners for each fee-earner and each case?
Improving risk management
When taking steps to reduce the risk of having to make a professional negligence claim against your PI insurance, it may be useful to think in terms of these four headings:
- People – whether clients or those within the firm providing the service.
- Process – the steps in delivering the retainer, dealing with the matter to completion.
- Systems – that underlie all the work that the firm does – file opening, client due diligence, IT, HR, communications within the business, diaries and file closure.
- Risk management – the extent to which good practice in risk management is followed in the firm.
Start with a thorough ‘onboarding’ process, to identify the client’s legal needs. Take a statement from the client, setting out the facts of the matter. Use headings such as the ones below to provide clarity and structure to these facts. Adopting this project management approach will help you to plan and control the matter (and its profitability) through to completion.
- Initial business case – the purpose of the matter.
- Scope – the activities to be performed, the resources needed, and the outcome (eg a contract, or a sale).
- Deliverables – specific tangible outcomes that satisfy specific named objectives.
- Assumptions – assumptions that the client can confirm are correct (eg a particular property is owned by X; or a particular document has not been superseded by another document).
- Dependencies – a series of steps to be taken in sequence, including the question of what happens if a step does not take place (what is critical, what is not?).
- Limitations – on the scope of the legal advice, based on the information available and the areas of law to be covered (eg is tax advice covered, or IP law?).
- Unknowns – factors where there is no information, which could affect the outcome.
When progressing a matter, use systems like these to keep control of the various issues:
- Issues log – a straightforward log of things that arise which may have an impact on the project (eg a survey may have been requested on a building).
- Risk control log – any checks or solutions that need to take place (eg if a survey reveals a problem with the building, there will usually be a follow-on action that must be completed).
- Revision history – changes to the matter and why they were made (eg where new information means that the original plan needs tweaking).
- Change control – a way of preventing mission creep, so that if a matter materially changes the firm can then reset the budget, resources, timings and expectations of the outcome (eg if a seemingly straightforward transaction is revealed to be a complex one).
- Earned value – a cost-benefit analysis carried out during the course of the matter to check that the original commercial logic still stacks up in light of any changes (eg in any M&A deal a number of factors can erode the value to one party or another).
There are countless different situations that can lead to a PI insurance claim from a law firm, but hopefully this note has given you helpful ideas about where to focus your risk management efforts and the sort of controls you can use.
See also:
- How to avoid professional negligence claims in residential conveyancing, wills and probate, company and commercial, and commercial litigation.
- The first in a series of podcasts on risk: Risks for lawyers podcast - introduction
- Professional indemnity insurance FAQs
Some lawyers on the Travelers team
- Charles Attwell and Paul Smith help law firms to avoid claims in the first place.
- Joseph Arazi heads up Travelers’ in-house law firm, Travelers Legal, which handles legal actions against firms that are insured with Travelers.
- Davis Kessler is head of cyber.
- Another 20 solicitors make up the Travelers claim-handling team.