In Industry Insights

Rachael Eyre Jonathon Bray Limited

Rachael Eyre says that a recently reported case of a trainee’s failure to serve a claim form reflects more on the firm than the individual. Junior lawyers are inexperienced and need proper supervision.

“A firm that leaves a trainee to file documents up to the wire on a claim of over half a million needs a hard and long look in the mirror at their lack of care to a claim of that size. Heart goes out to the trainee, I hope they use this to get stronger”

– Anonymous comment on the Law Society Gazette Article ‘Court shows no mercy over trainee’s failure to file claim form

Relevant facts of the case

The court ordered that the claim form and particulars of claim be served by 10.9.20.

On 8.9.20 a trainee sent the particulars of claim by email and first class post to the defendant’s solicitors.

On 14.9.20 the post was returned as ‘addressee gone away’. At this point the documents were checked and it was noted that the claim form was missing.

On 14.9.20 the claim form and particulars of claim were sent by email to the defendant’s solicitors.

The defendant’s solicitors objected to the second service as being out of time and an application was made for relief from sanctions.

Upon reading the judgment, it is clear that the trainee was left in charge of the service. The solicitor with conduct of the matter (themselves only 2 years qualified) was on holiday and the system of putting the dates in a departmental key date diary had failed.

Who is responsible?

The trainee missed the document, but were they responsible for the detriment to the client’s claim? I would say not.

Regulated firms have an obligation under the SRA Education, Training and Assessment Provider Regulations (part 4) to ensure that trainees are appropriately supervised by solicitors and other individuals who have adequate legal knowledge and experience in the practice area they are supervising and the necessary skills to provide effective supervision.

It is debatable if someone 2 years PQE has adequate knowledge and experience, but certainly when that person was on holiday someone else should have been supervising the trainee.

The SRA Code of Conduct for Firms requires firms to “identify, monitor and manage all material risks to your business” (2.5) and “have effective systems for supervising client matters” (4.4).

It seems that the firm fell short of both requirements here:

  • It failed to keep its key dates diary working effectively during the pandemic, which may have been understandable in April and May 2020, but should have been functioning effectively by the autumn months.
  • It clearly also failed to effectively supervise the trainees’ work.

What can your firm do to prevent the same issue?

We’d recommend reading the Law Society article by Fiona du Feu with some handy tips to help you through mentoring trainees, particularly during these covid times.

Check that your supervision routines are working and that other controls, such as key date diaries and holiday handovers, haven’t been compromised by the change to working from home.

And remember that in England and Wales we have entity regulation which means that the firm is accountable to the regulator, not just the individual.

It’s hard enough for junior lawyers. Trainees spend two years terrified that they will get something wrong. The least a firm can do is support and supervise them properly and not leave them carrying the can.

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