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Book reviews

14 March 16

Reviews of Avoiding Professional Negligence Claims (Galbraith); International Private Law: A Scots Perspective (Crawford and Carruthers)

by Stewart Brymer, Mungo Bovey

Avoiding Professional Negligence Claims

H Reynold Galbraith

PUBLISHER: W GREEN
ISBN: 978-0414018648
PRICE: £56

It is, sadly, a sign of the times that a textbook is required on this subject. This comprehensive text is a response to an increasing level of claims and complaints aimed at solicitors as part of a growing compensation culture in society.

The main coverage of the text is with regard to the law relating to professional negligence in executries, wills, trusts, tax, asset protection schemes and powers of attorney. The principles underlying professional negligence in general, however, are comprehensively covered in what is an easy to read but comprehensive text.

This combination has been achieved by the author including various case studies within what is a highly practical text. This is no better demonstrated than in the introduction to chapter 1, where the reader is invited to imagine the last email composed and sent or deed drafted, and then to try and visualise being cross-examined in court some years later on the terms of that email or deed in the context of the transaction in question and the background facts and circumstances which were relevant at the time, judged against the Hunter v Hanley test. As the author correctly states, this requires solicitors to keep accurate records and maintain good file keeping, with effective communication with one’s client being paramount.

Chapter 2 is a useful review of the underlying law of professional negligence in so far as it applies to the legal profession, and chapter 3 considers the role of the Scottish Legal Complaints Commission and other bodies. Drawing on a recent report of the SLCC on Buying or Selling your Home, the author comments in para 3-06 that there would appear to be a lack of ability of practitioners to explain matters to their clients.

Having set the scene in the introductory chapters, the author then outlines how to avoid professional negligence claims in general in chapter 4. These general principles are outlined in para 4-01. Some readers may find the scenarios employed by the author to be a little annoying, but that is very much a matter of individual taste. It is well worth reminding oneself about the importance of file notes – and how to make them. Note, in particular, the simple but essential danger warnings about the use of Post-it notes in para 4-05, and the dangers associated with multitasking in para 4-06. See also the warning about possible data protection breaches in para 4-42.

Chapter 5 then deals with avoiding claims in executries. Once again, checklists are recommended as a means of good risk management. Chapter 6 deals with wills. The danger warning about not doing wills at fixed prices is perhaps best shown in the recent case of Hamilton v Campbell Smith (case ref: A524/14), Edinburgh Sheriff Court, 12 January 2016. Chapters 7, 8 and 9 consider how to seek to avoid claims when dealing with trusts, tax and asset protection schemes respectively, and should be essential reading for practitioners working in these areas.

Chapter 10 very helpfully looks to the future and considers potential claims as a result of computer security, cloud computing etc, and also how Government is increasingly viewing legal services.

The book also contains a number of appendices which give examples of practice notes etc. Perhaps the most useful is a summary of the procedure to be followed in undertaking file closure management – once again using a checklist. A man after my own heart!

This is a very useful book and should be a “must read” for practitioners and students alike. We can all improve our working practices, and it is best to do that and avoid a claim in the process rather than doing so after the fact. As one of the quotations at the beginning of Chapter 10 states: “Solicitors take heed: you have a stressful job that is crucial for access to justice and the rule of law. Take better care of yourselves.”

Professor Stewart Brymer OBE, WS, Brymer Legal Ltd

International Private Law: A Scots Perspective

Fourth edition

E B Crawford and J M Carruthers

PUBLISHER: W GREEN
ISBN: 978-0414033986
PRICE: £49

This is the fourth edition of this work and the fourth prepared by Professor Elizabeth Crawford, now Professor Emeritus, and joined by Professor Janeen Carruthers in this mammoth enterprise.

It is not usual for a practitioner to read a textbook such as this as a narrative rather than “dipping in” in search of an answer, but the experience here is not a bad one as, with loving care, the authors guide one in a manner that bespeaks the enormous experience they bring to their task, careful, as they say in the preface, not to let the detail which a modern treatment requires obscure the “beguiling essence” of the subject.

These are areas of law that have served us through the agricultural, industrial, and now the technological era, and the authors deal at length with the interaction between EU law that dominates so much and the domestic law that always seems to remain somewhere in the picture. However, one of the great challenges of the technological age in which we now live is the effect of the internet on issues which dominate this area of law.

The authors do deal with the impact of the internet on their subject matter – for example, in defamation at paras 7.24 and 16.51 – but the opportunity to address the issues in any thematic way is missed. Most serious is the fact that the internet is not reflected in the index or table of contents, which are essential parts of a textbook aimed at the practitioner. It is perhaps the nature of the approach of the authors that, while they report the case of Clark v Tripadvisor [2014] CSIH 110, in which the Inner House of the Court of Session enforced a tick-box choice of jurisdiction clause proffered by an international organisation to small traders in Kinlochleven, they do not comment on the lost opportunity the case represented to grapple with the new world in which we find ourselves.

Mungo Bovey QC
 

 

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