Podcast: sound judgment when solving problems
James Perry discusses solving problems with sound judgement during litigation and all walks of life in this two part podcast series.
The following case studies provide example scenarios for solicitors working with vulnerable clients. They set out points to consider to ensure you are meeting your responsibilities towards clients.
The case studies should be read together with our guidance on meeting the needs of vulnerable clients.
Mrs Jones’ marriage has broken down after 40 years and she decides to seek legal advice about a divorce. She has a severe visual impairment but does not want anyone to know that she is thinking about a divorce, so she wants to meet with a solicitor on her own.
She telephones a local solicitor’s firm to book an appointment and is put through to the team secretary of the firm’s family law department, Ms Clare Robinson.
Clare takes some details from her and explains that the first available appointment is the following Tuesday at 9am. Mrs Jones asks if she could have a later appointment because, as a result of her visual impairment, she finds it easier to travel around when the streets are less busy.
Clare asks if she would prefer a home visit. Mrs Jones is grateful for the offer but explains that she does not want her husband to know anything about the visit. She says that she can find her way to the office but asks if a member of staff can guide her into the building from the street, as she is not familiar with the office.
She also asks if any written documentation can be sent by email or provided in large print format. Clare assures her that this will not be a problem.
She also asks if the firm could provide a digital recorder for her to record any meetings so that she can remind herself of discussions. Clare says the firm would be happy to lend her a digital recorder and can also let her use it to record instructions rather than emailing them, if that would be easier for her. The firm will ask for it back when the matter is completed.
Clare makes the appointment for later on Tuesday and then explains Mrs Jones’ needs to Mrs Temple, the solicitor who will be acting for Mrs Jones. She also speaks to the reception staff to make them aware of Mrs Jones’ additional needs. Mary Baker, the lead receptionist, says she will wait outside the office to greet Mrs Jones.
On the morning of her appointment, Clare reminds the reception staff that Mrs Jones is coming in and discovers that Mary is off sick and so reception is short staffed. She therefore waits outside for Mrs Jones herself. She also checks that the reception area, toilets and meeting room are free from clutter and other trip hazards.
At the meeting Mrs Temple gives Mrs Jones the digital recorder. She advises her about divorce proceedings and how to approach the division of money and assets. She discusses with her whether she will need additional support given that she will now be living on her own.
After the appointment and when inputting the attendance note into the case management system Mrs Jones’ case is flagged so as to ensure that anyone dealing with the case will be aware of her visual impairment.
Mrs Jones is so impressed by the firm’s service that she recommends the firm to her local support group for people who are visually impaired.
Tom O’Sullivan was 38 years old when he was involved in a road traffic accident. On his way home from work as a graphic designer, he was knocked off his bicycle by a lorry turning left across the cycle lane he was travelling in.
He suffered a severe closed head injury, a fractured shoulder and massive bruising to both legs. He was in hospital for nearly six months and then had several months attending out-patient appointments for physiotherapy and other rehabilitation.
When he returned to work over a year after the accident, he was only able to do routine clerical work. To keep up mortgage payments and provide for their two young children, Tom’s wife returned to full-time work. After a few months of becoming increasingly frustrated with his mundane job, Tom resigned and he has barely worked since then.
Shortly after the accident, with the help of his father and supported by his wife, Tom seeks advice from you about claiming damages against the lorry driver and the company that employed him.
It took some time to gather together the medical reports and the information about financial loss, but eventually the claim is issued almost three years after the accident.
Although by that time Tom had largely recovered from his physical injuries, he complained that he continued to suffer from a complete loss of the senses of smell and taste, some hearing loss, forgetfulness, headaches, anxiety and mood swings. However, he seemed able to provide accurate information about the claim and to understand the advice given to him by you and counsel.
The defence denied liability and alleged contributory negligence as Tom had had an after-work drink before cycling home. Tom’s counsel had advised that this could be assessed as high as 50%. Following negotiations, the defence made a payment into court and Tom, accompanied by his wife, father and solicitor, attended a conference at counsel’s office to discuss the offer.
During the meeting Tom became increasingly angry, distressed and tearful, but continued to ask relevant questions and put forward cogent arguments for seeking a higher offer. Counsel expresses some concern about Tom’s behaviour.
After the conference, you receive a phone call from Tom’s wife, saying that she’s concerned about personality changes since the accident and particularly his mood swings and depression which had got worse since the conference. She also lets slip that he had talked about committing suicide, although he had asked her not to tell anyone for fear of upsetting the family.
She asks you to speed up the negotiations and reach a settlement – any settlement – as soon as possible, even if they could not get the amount of damages they wanted, as she is worried about the effect of prolonged court proceedings on Tom’s condition.
You should ask to see Tom alone to make a careful assessment of his capacity to give you instructions, and to consider whether the presumption of capacity continues to apply or whether this is changed by the new information about Tom’s condition and behaviour.
You should tell counsel about your concerns and the steps you’re taking to find out whether Tom has litigation capacity to conduct the proceedings.
You’ll probably decide to seek an expert opinion, for example from a consultant in neuropsychiatric rehabilitation, to assess how Tom’s brain injury may be affecting his ability to provide you with instructions. The letter of instruction to the expert should set out clearly the issues relating to his claim and the decisions he needs to make.
You should also refer to the judgments in Dunhill v Burgin  UKSC 18 and Masterman-Lister v Brutton & Co (Nos. 1 and 2)  EWCA Civ 1889.
You will need to seek Tom’s consent to the examination by carefully explaining to him that any settlement could be invalid if he were later found to lack capacity to conduct the legal proceedings.
If Tom refuses to consent to the medical examination, you’ll need to make your own assessment of his capacity based on the available evidence. With or without a medical opinion you should keep a careful record of the assessment of capacity and the reasons for the conclusions reached.
If you conclude that Tom continues to have capacity to conduct the proceedings, then you can continue to act on his instructions. You should discuss with Tom his wife’s concerns and the possible effect of the court proceedings and how you or someone else can best support him during the process.
If you conclude that Tom now lacks capacity to conduct the proceedings, a litigation friend must be appointed to conduct the proceedings on his behalf. You should discuss with Tom, his wife and his father who might be the most appropriate person to ask the court to be appointed as Tom’s litigation friend.
If you consider that there is no one among Tom’s family or friends who can conduct the case and has no conflict of interest, you may wish to contact the Official Solicitor who is the last resort litigation friend. The Official Solicitor will need confirmation that Tom lacks litigation capacity to conduct the proceedings and information on how Tom’s legal costs are to be paid.
If you conclude that Tom now lacks capacity to conduct the proceedings and Tom continues to assert his own capacity to instruct you, you should inform the court hearing the claim. An application should be made to determine if Tom has lost capacity and, if so, for the appointment of a litigation friend.
In assessing Tom’s capacity you should also consider whether he has the capacity to manage his finances, particularly if he is likely to be awarded a large amount. If he does not have that capacity you should consider making an application to the Court of Protection to appoint a deputy for financial affairs. If Tom has the capacity to appoint an attorney to manage his financial affairs he should be encouraged to do so given the fluctuation in his mental state.
Mrs Bryan is 79 and has an early diagnosis of dementia. Her previous solicitor acted for her and her late husband in the preparation of their wills.
Mrs Bryan’s son Don has arranged an appointment for his mother at your offices to review her will, following the death of her husband. She is brought to the meeting by Don, who remains in the waiting room, while you see Mrs Bryan alone.
She tells you during your meeting that she has recently rented out her own home and has moved in to live with Don, and his family. Neither Mrs Bryan nor her son Don are existing clients of your firm.
You receive a letter from Mrs Bryan shortly after the meeting, telling you that as she has decided to live with Don permanently, she is selling her own house and would like you to handle the conveyancing. She further advises you that she is using the proceeds of sale to pay towards an extension, a conservatory, replacement windows and a new kitchen in Don’s property.
You should (with Mrs Bryan’s authority) obtain a copy of her previous will, and discuss her reasons both for the change in solicitor and any substantive changes to the terms of her will.
You should have a further face-to-face meeting with Mrs Bryan, to discuss her plans for her property and assess her mental capacity to give you instructions for each of the proposed transactions.
If you’re in doubt, and are not able to form a view, you should seek a medical opinion about her capacity to make the relevant decisions and to instruct you. Your instructions to the medical professional must set out the specific criteria to be considered for each transaction.
Mrs Bryan will need advice (among other things) on whether she should have a legal or beneficial interest in her son’s house in exchange for her planned contribution, as she will need an exit plan in case the living arrangement breaks down for any reason.
You should also consider whether Mrs Bryan may be at risk of undue influence, most obviously in relation to the money she is planning to ‘gift’ to Don to spend on his property, where the presumption of undue influence may arise. She may be dependent on Don and his family for her care and accommodation. She may not be entirely happy with the plans but feel unable to express that to her family.
You should try to see Mrs Bryan alone, to enable her to explore fully the risks and benefits of the proposed transactions
John and Mary Smith need advice about possible care proceedings being taken in respect of their two-year-old child. They have received a pre-proceedings letter from the local authority which urges them to take legal advice and which gives your firm’s name (among others) as appropriate specialists.
An independent advocate, Mrs Jones, has made an appointment by telephone. She said she was calling on behalf of the Smiths as they both have learning disabilities and find formal telephone conversations and correspondence problematic. She has left her contact number.
Although you’re a very experienced care proceedings lawyer, you have not worked with clients with learning disabilities before, or with an independent advocate. Colleagues tell you that, in general terms, independent advocates help the people they work with to participate in decisions that affect their lives, to understand what they are being told and enable them to make their views, opinions and decisions known.
Your colleagues say that, similarly to working with intermediaries in court, having the assistance of an independent advocate is essential for ensuring that you can communicate effectively with your clients and that they can communicate effectively with you.
Recent case law involving parents with learning difficulties (for example A Father v SBC & Others  EWFC 6 and Z v Kent County Council (Revocation of placement order - Failure to assess Mother's capacity and Grandparents)  EWFC B65) emphasises the need to ensure that the processes by which decisions about the children are made are fair and that the parents are sufficiently involved in that process. The Human Rights Act 1998 and the Equality Act 2010 are therefore likely to be particularly relevant for your clients.
All aspects of this case will be relevant when considering whether the legislation has been complied with, including:
Check if the advocate will be attending with the Smiths. Ask what you can do, at this stage, to ensure the Smiths will be able to participate fully.
For example, normally your new clients are asked to complete some paperwork while waiting for their appointment and they are given some generic information about the firm’s client services and legal aid. Consider sending this paperwork to Mrs Jones, before the meeting, together with a list of questions you will be asking the Smiths, expressed in plain English. You could also provide an easy-read version for the Smiths. This will give your clients an opportunity to think about their answers, before the meeting.
Check the Working Together with Parents Network website for a wide range of information and resources about parents with learning disabilities.
Start to consider likely case management issues that will arise in the office and at court including the Advocates Gateway resources and toolkits.
Make sure the Smiths are happy for Mrs Jones to be present at the meeting.
Check with the Smiths how you can make communication effective, for you both, during the meeting and with any follow-up correspondence or actions.
Consider whether there is any conflict of interest between the Smiths, or the potential for a conflict to arise.
If you believe that one or both of the Smiths might lack mental capacity, follow our guidance on working with clients who may lack mental capacity.
Without making assumptions about the degree of learning disability a client has, or how this impacts on their ability to engage with you, you know that the following steps are likely to be useful, and may be essential: