Rough guide to controlling critical dates

Practical risk management issues that ought to assist in preventing time bar problems identified in previous month’s article

The Journal, January 2003, page 38

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Case study: Thinking ahead

Risk Management points:

It should not be assumed that it is sufficient merely to serve a writ within the triennium.  The defender may blame a third party at a time when it is too late for the pursuer to adopt a case against that party.  The possibility should be considered well in advance of the time limit operating and all possible defenders convened.  If an action is raised in good time, the pursuer will be able to amend his pleadings within the prescribed time limit.  Alternative grounds of claim eg. under statutory provisions should all be considered in good time.

Checklist - a litigation checklist might have been effective in prompting consideration of and planning for the course that Mr Joiner’s litigation took, ideally a checklist tailored to the particular case.  

Case review meetings - as part of your ‘belt and braces’ approach to avoiding time bar claims, consider holding regular scheduled case review meetings at which there is a particular emphasis on critical dates.  

See also the comments below on the subject of file reviews/audits.

Case study: When a triennium isn’t a triennium

Risk management points:

Would you have known that a time limit other than three years might apply to a personal injuries claim?  How would you ensure that no one taking on such an instruction in your practice would have made a mistake with regard to the relevant time limit?  

Checklist - to minimise the risk of this sort of error, a checklist tailored to the specific case could be used to prompt consideration of any unusual factors eg. foreign jurisdiction, capacity/status of your client etc. that may be relevant and may bring different time limits into play. Ideally, have the position double-checked at the outset as otherwise an error regarding the critical date may never be questioned at a later stage.

Independent file review/audit - on a scheduled basis, fee earners could be required to undertake independent reviews of colleagues’ files on a sample basis. Apart from identifying situations where errors (eg incorrect assumptions) have been made, this arrangement may pick up situations where fee earners are not coping or are out of their depth but have not asked for help.  It can also identify inconsistencies in the way issues are dealt with by different fee earners and facilitate discussion of areas of risk and risk improvement.

See also the comments above regarding case review meetings.

Case study: Time bomb

Risk management points:

Could the situation arise in your practice where a fee earner leaves the practice and no-one takes over responsibility for a time critical file?  How would you/do you ensure that the situation does not arise?  

File review/audit – a physical check of all of the departing fee earner’s files should be conducted.

Hand over of file – if it is practicable, review the file while the colleague who has been dealing with it is still in the office and available to discuss and clarify any areas of doubt.

No fear culture – whatever the circumstances in which someone is handing over the conduct of a piece of work, that fee earner should be encouraged, with the reassurance that there will be no recriminations over honest mistakes, to identify any problem of which the fee earner is aware. They should be encouraged to make a disclosure about any file which they consider could present a potential problem.  That is in everyone’s best interest.

File review - there could be various reasons why matters have not been attended to as well as they might prior to your taking over the file.  The colleague’s mind may have been on other matters for some time prior to leaving/handing over the file.  The colleague may have been under pressure to finalise as much work as possible prior to leaving and that pressure may not have been conducive to attention to detail.

In all of these circumstances, more than a cursory file review is appropriate. The file needs to be read thoroughly to ensure that everything done to date is correct; that nothing has been omitted and that none of the crucial facts have been misunderstood or mis-recorded.

Case study: Missed date - client’s fault?

Risk management points:

The facts of the case study do not tell us precisely what has gone wrong and there are numerous possible explanations for Mr X’s Tribunal application being out of time.  It is possible that the solicitors made no error at all and that they were categorically assured by Mr X that his employment had been terminated on 13 January 2002.  Perhaps the solicitors were not instructed until, say, the beginning of April (note: we are not told the date of first instruction) and simply had no time to investigate the facts adequately – they did the best they could in the minimal time available.  It is certainly implied that the solicitors were well aware of the time limit.  

On the other hand, it is possible that the solicitors may have failed to verify the date of termination or to explain to Mr X the significance of the date of termination and the Employment Tribunal’s strict time limit and the consequences of failing to comply.  

Terms of engagement - we are not told how far in advance of the critical date the solicitors were instructed but you ought to consider carefully whether you agree to act in cases where there is no opportunity for adequate investigation etc.  If you agree to act, consider whether your terms of engagement should reflect the short timescale and consequent lack of time for adequate investigation.  If you decide not to act, consider whether you should be issuing a non-engagement letter.

Managing the client - early communication with the client stressing the significance of pinning down the precise date of termination; the Employment Tribunal’s strict timescales; the strict adherence of the Employment Tribunal to these timescales; the consequences of failing to comply with the timescales; and the client’s role and responsibilities.

Early lodging of applications – adopt the practice of endeavouring to lodge applications as early as possible (target say 2 months) rather than always using the full 3 months period. Note: in the case study, the application was received by the Tribunal only 3 days prior to the assumed deadline.

Diary systems - although there is no suggestion in this case that there was any diarying problem, effective diarying arrangements are clearly critical to management of critical dates.

Risk management procedures – general

While some of the risk management arrangements referred to above eg case review meetings, may appear suited only to firms with larger numbers of eg litigation practitioners, could the arrangement not be adapted to operate across disciplines or for sole practitioners?  After all, every type of file involves time limits and we are all capable of getting stuck or developing a mental block whatever our type of work. The mental block may be overcome merely by talking through the issue with a colleague or, in the case of a sole practitioner, with a local practitioner on a confidential basis.  If we expect ourselves and our colleagues always to cope in isolation, that may create risks which could so easily be avoided by operating an informal referral arrangement on a reciprocal basis.

The information in this page is (a) intended to provide guidance on matters of practical risk management and not on issues of law, (b) necessarily of a generalised nature and (c) not intended to endorse or recommend any particular product or service.   It is not specific to any practice or to any individual and should not be relied on as stating the correct legal position. Alistair Sim is Associate Director in the Professional and Financial Risks Division at Marsh UK Limited

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