Tuesday, October 09, 2007

Law Society intervention in claims 'commonplace' as ex Chief admits Master Policy protects solicitors against clients

Kenneth Pritchard, Douglas Mill's predecessor as Secretary & Chief Executive of the Law Society of Scotland, admitted as far back as 1994 in the media the Master Insurance Policy professional negligence insurance scheme was primarily "... there to protect the solicitor, his practice and his family...".

Policy is to protect both says Law Society Herald 1994 Retype

The Herald Wednesday August 17th 1994

Policy is to protect both says Law Society

Law Society secretary Kenneth Pritchard described as "utterly wrong" claims that solicitors professional indemnity insurance sets out to deny genuine claims for negligence and delay settlements to clients.

Mr Pritchard was responding to allegations made by Paisley house builder Iain McIntyre that solicitors insurance protects the profession at the expense of the client.

Mr Pritchard made it clear that he did not wish to comment on the conduct of any court action currently being pursued by Mr McIntyre and restricted his comments to the operation of the master policy for professional indemnity insurance operated by the Law Society.

"The master policy, in common with any other third party policy, is there to protect solicitors, but also to provide indemnity to their clients who have suffered loss. That is absolutely no different from any other third party type of policy, for example car insurance"

The Government has legislated that nobody can drive on the public highway without having third party insurance. The Law Society, in the interests of its members and the public, requires a solicitor in private practice to hold cover under the master policy before he gets a practicing certificate.

The only difference between third party insurance and the master policy is that it is imposed by the solicitors own body and not by the Government.

"Of course it's there to protect the solicitor, his practice and his family, but it's equally there to provide a fund for proper compensation to the client who has suffered loss"

Mr Pritchard complained that while the Law Society organised and administered the master policy and ensured that it provided the necessary range and amount of cover, negotiations over a claim were a matter for the client, solicitor and insurer.

He described the suggestion that the system operates to deliberately delay settlements or deny settlement when it was due as utterly wrong.

The Law Society's rule is to monitor what the master policy is intended to do and that it is to deal speedily and effectively with claims. In the main we are quite satisfied, although there are cases which go wrong.

There are two quite separate issues, the first being liability.Were the solicitors negligent ? If that is established, the second big issue is how much does the client get paid ?

There is an inevitable regulation - indeed there may well be an inevitable gulf - between what the client perceives as justified and what the insurers backed by their experience of settlements awarded by the courts, believe that a particular claim is worth.

Mr Pritchard also denied the allegation that firms which carry an excess on their insurance policies try to avoid liability because cash would have to come from their own pockets.

My perception from talking to firms is that, if they accept that the claim is due, the sooner it gets settled the better. There is no advantage in haggling over liability or the amount of damages because all you are doing at the end of the day is adding interest to the claim.

What lay behind that 1994 report in the Herald newspaper, were revelations that Kenneth Pritchard intervened in negligence claims against the legal firms of Wright & Crawford of Paisley, MacRoberts of Edinburgh, and Grant & Co, writing to the petitioners legal representatives, Skene Edwards Solicitors, on 21 June 1995, asking them to "protect their back" and that such correspondence would remain confidential between Mr Pritchard and Skene Edwards Solicitors, the petitioner's legal agents, and should not be disclosed to the client, Mr McIntyre.

Extract of negligence case

As you can see from the above extract of pleadings, Kenneth Pritchard, apparently not satisfied with the terms of his previous letter, then wrote back to Skene Edwards Solicitors , two days later on 23 June 1995, ordering them to withdraw acting for their client in the negligence litigation against several legal firms.

You can read some more about Iain McIntyre's case on the Scottish Parliament website in pdf format HERE

Kenneth Pritchard is currently a serving Sheriff, and has unbelievably, written a book on professional negligence. The book must be very insightful on how to protect the legal profession from the public interest .....

Kenneth Pritchard's involvement in the above case, is certainly evidence enough the Law Society of Scotland directly intervene in clients negligence claims against solicitors ... and to continue the theme of Law Society intervention, Mr Pritchard's successor, Douglas Mill, was again, caught interfering in a client's negligence action, this time by the details of his own memo where Mr Mill, and various elements within the Law Society and the insurers, were seeking to delay & destroy several negligence claims by Mr Stewart MacKenzie against solicitors.

Douglas Mill Memo to Martin MacAllister 5 July 2001

My own case too, has seen such intervention, with Douglas Mill directly intervening with the Scottish Legal Aid Board to cancel my legal aid funding for (i) a negligence claim against a solicitor and (ii) a case against the Law Society of Scotland to expose their mishandling of claims & my complaint against Andrew Penman.

Scotsman 5 June 1998 Law Society accused of closing ranks as claimi fails

Mr Philip Yelland, the Law Society's Director of Regulation, then contacted my own solicitor, akin to Mr Pritchard's interference in the other case, ordering my legal agents not to undertake instructions from me and to abandon my case.

Douglas Mill letter to Scottish Legal Aid Board demanding legal aid be refused

Philip Yelland letter to David Reid ordering him not to take instructions

Well, there is no surprise to learn that such 'intervention' by the Law Society of Scotland is commonplace against clients who try to claim compensation against a crooked lawyer, or pursue a negligence case using a lawyer to sue a lawyer which is the current & only method for pursuing cases against solicitors ....

The Scottish Government of course, know this to be the case. They are not as stupid or ignorant as they pretend to be. Indeed, John Swinney MSP, spoke on the issue of Kenneth Pritchard's intervention in the above case, during the LPLA Bill debate in December, and you can view Mr Swinney talking about it here :

Similarly, the Scottish Parliament and every single one of it's msps, are well aware of these problems of incessant Law Society intervention against any court case or complaint, or claim for financial loss which threatens member solicitors.

If everyone knows about it, when why is nothing done about it ?

Well, the simple answer to that question is the Law Society and the legal profession require that no action be taken to protect the public interest, over the interests of solicitors, and politicians are left in no doubt that if they support legislation which might end the corrupt arrangements of the Master Insurance Policy, they will be facing electoral oblivion or a lack of financial perks so many have been used to.

Any client of a crooked lawyer, who has tried to make a claim for damages against their negligent solicitor has certainly found this to be true, with the full wrath of the legal profession & insurance industry dirty tricks brigade being brought to bare on them. I among them.

I covered some of the dirty tricks carried out by the Law Society of Scotland, Marsh UK, and the insurers against client claims in an earlier article here : The Corrupt Link Revealed - How the Law Society of Scotland manages client complaints & settlements.

To this day, the Scottish Government, and it's previous incarnations, have afforded obsessive secrecy to the operation of the Master Insurance Policy which 'protects the solicitor, his practice and his family' for reasons it seems, the Government itself may significantly benefit financially, from it's own direct relationship with Marsh UK and the same insurers.

In an earlier article I wrote on the Scottish Executive's in house legal team, an FOI revealed the cost of running some 114 lawyers at around 5 million pounds, although that figure is now understandably suspect, given further revelations since i wrote the piece here : Scottish Executive budget on lawyers salaries revealed at over £5 million pounds while public face restrictions on legal representation

In an effort to get to the heart of the seemingly impenetrable workings of the Master Insurance Policy during the progress of the LPLA Bill through the Scottish Parliament, a short lived saga developed, where John Swinney MSP, at the time in opposition, wrote to the then Deputy Justice Minister Hugh Henry MSP, asking for "minutes of any meetings that may have taken place between the Scottish Executive, the Law Society, the brokers & the insurers for the Master Policy in connection with any provisions within the BILL that may affect the Master Policy."

Johann Lamont to John Swinney Master Policy Minutes respose

A few days after Johan Lamont MSP responded to Mr Swinney, the Scottish Executive had apparently consulted the Law Society of Scotland and decided against releasing any information, sending Mr Swinney a two page letter excusing themselves from release of the information, on grounds of disclosure not being in the public interest - this coming after an apparent demand from the legal profession to keep the information secret.

Mike West to John Swinney Master Policy Minutes response denial  Page 1Mike West to John Swinney Master Policy Minutes response denial  Page2

Mike West, of the Justice Department, responded for the Executive, denying release of the information ...

"We endeavor to provide information whenever possible. The information you requested is related to the Legal Profession and Legal Aid (Scotland) Bill which is currently going through it's parliamentary process. As this information is a contribution to the formulation and development of government policy, it is exempt from disclosure under Section 29(1)(a) of the Freedom of Information (Scotland) Act 2002 which states the information held by the Scottish Administration is exempt information if it relates to the formulation or development of government policy.

In addition, as the information you requested consists of ongoing deliberations to assist with development of policy, it is likely to inhibit substantially the free and frank provision of advice, and free and frank exchange of views, and is thus exempt from disclosure under section 30(b)(i) and (ii) of the 2002 Act.

In reaching our decision about releasing the information, we have applied the 'public interest test' where we carefully weigh up the balance between whether it would be in the public's best interest to either release or withhold the information. We considered that, release of information would be likely to result in the loss of input into policy development from valuable stakeholders. On both occasions, we considered that it would not be in the public interest to release the information."

Interestingly, the Scottish Executive at the time obviously felt unable to release discussions with a well known to be corrupt insurance policy arrangement with the legal profession, because it would apparently be 'against the public interest to do so' .... I wonder why that could be ?

John Swinney MSP duly replied to his constituent on December 11 2006, informing Mr MacKenzie of the Scottish Executive's refusal to release the information sought on meetings over the Master Policy.

John Swinney to Stewart MacKenzie Master Policy Minutes response apology

Of course, now that Mr Swinney is in Government, as the Cabinet Secretary for Finance, there should be no problem in his ordering the release of such information, and I await with interest to see if he does so, defying the commands of the legal profession to the contrary ...

After all, you can't have meetings & policy discussions on external insurance arrangements for public bodies which are supposed to be outside the control of government, and then tweak proposed legislation (which may run counter to that same public body's interests) to suit, unless there is a degree of collaboration & involvement in those issues & insurance arrangements, which it seems are certainly against the public interest, not for it ...

18 comments:

Poirot said...

Peter

I don't think anyone could have wrote that piece except you.I hope your readership understands the core issue of problems with the claims process and how politics has played a part in stalling reform.

Keep up the good work.

? said...

Did Mike West get something for that reply to John Swinney ?Looks ludicrous after what you've all said about it.

So Mr Swinney minister for everything cant get out of this one now can you or can you ?

will be watching

Anonymous said...

You mentioned my lawyers in this report mr cherbi.I am very concerned at what I read and need to contact you.Email or telephone please.

Peter Cherbi said...

#Poirot @7.59pm

Yes, I'm sure they do.

#? @ 8.36pm

Ask him and let me know.

#anonymous @ 9.28pm

My email is in my profile.

Anonymous said...

Hell of a post Mr Cherbi but a little complicated.I guess thats what lets these lawyers get away with it in the end since no one except a lawyer would be able to figure it out or fight it.

Are you a lawyer ?

Anonymous said...

You have good sources Mr Cherbi but I think you will find the long hand of Douglas Mill in Mr McIntyre's case too.

Anonymous said...

You will upset some people for bringing this up again Mr Cherbi.We thought it had been put to bed years ago..

Anonymous said...

That letter from Swinney seems a bit of a fob off.Why didn't he appeal the Executive's refusal of the FOI request and why was it treated as an FOI request.
Wouldn't he have been better asking qestions in the parliament and then the FOI and why hasnt the info already been released ?

Anonymous said...

I suspect the same happened in my case.I was trying to sue my ex solicitor for how he lost several bids on a property and the day after my solicitor said he received a letter from the Law Society he withdrew from acting for us.We were able to get another solicitor to take the case on and it went to an out of court settlement only after I contacted a journalist I think you know.

I asked for the file of our second solicitor as we had paid his fees but he took out the letter from the Law Society and refuses to give it to us but we heard from one of his former employees the letter ordered him to drop our case.These are horribly evil people at the Law Society and put us through a lot of worry.

Keep up your good work Mr Cherbi in exposing these things.

gus said...

You are very brave for exposing this kind of scandal Mr Cherbi but please be careful.There are probably a few in the Law Society who want you dead for what you ahve reported on them.

Anonymous said...

How far did this case get and what happened to it and Mr Mcintyre ?

Anonymous said...

Mr Cherbi your report on this is very interesting but please stay out of this case for your own good.

Anonymous said...

saw what you wrote in the hootsmon on the legal aid thief so you obviously know something but not telling so tell !!!!

in the glen, said...

Great to see Swinney caught up in this.If he doesnt carry it through to the end he will never be trustworthy.

Keep up the reporting.Good to see you are making the news this time and not just reporting it !.

Anonymous said...

Wheres the story on Paul Kirk ?

Thought you would have had a go at that today.

Anonymous said...

Mike West wrote a very nasty report about you Mr Cherbi.You might find yourself receiving a copy of it in the near future.

Anonymous said...

Mike West is the point man at the Scottish Executive to tell people who have been ruined by lawyers to fuck off on behalf of the Law Society.I'm not surprised he wrote a nasty report on Cherbi.They seem to go all out to target him any chance they get.

? said...

This story anything to do with this ? http://findarticles.com/p/articles/mi_qn4156/is_19991010/ai_n13944795

I want justice for life ruined by legal system
Neil Mackay Home Affairs Editor

EXCLUSIVE

RUINED businessman Iain McIntyre will this week take on the entire Scottish legal establishment in a judicial review which could lead to a devastating series of court actions totalling more than #11 million.

The property developer will claim that the Law Society of Scotland acted unlawfully by failing to investigate claims that some of the most respected legal firms destroyed his business by bungling simple property transactions.

McIntyre intends to sue a series of solicitors' firms and the Law Society of Scotland for an estimated #11 million if the judicial review succeeds.

McIntyre's lawyers will argue that the Law Society of Scotland has acted unlawfully because of a conflict of interests that sees it acting as both a watchdog, by promoting the public's interests, and as a professional body, promoting solicitors' interests.

The Law Society, according to McIntyre and his lawyer, refused to investigate the complaints of professional misconduct against the law firms.

As part of his legal challenge, McIntyre will claim that the Law Society's master insurance policy, which pays out if solicitors are successfully sued by the public, is also unlawful. If the court agrees, this could provoke a flood of demands by lawyers for their premiums to be returned, which could be anywhere up to #100 million.

Michael Robson, McIntyre's solicitor, said that "a conflict of interest" was built into the Law Society's insurance scheme, where the interests of the public are directly contrary to those of solicitors.

Robson said the Law Society's complaints procedure cannot be considered independent or impartial as "it is the profession judging its members".

He added: "The Law Society has set up an insurance system which protects solicitors at the expense of their clients. They have an interest in ensuring that claims under the policy are kept to a minimum."

The petition for judicial review against the Law Society says its actions are "in breach of natural justice" and their "obligation not to act in a conflict-of-interest situation".

McIntyre is set to petition the Court of Session for a judicial review next Thursday or Friday. The case began in 1985 when McIntyre consulted Wright and Crawford, a firm of solicitors in Paisley, over building two neighbouring housing estates. He needed a connecting road between the two but the law firm failed to reserve access rights. The development was never completed.

McIntyre consulted a second firm, MacRoberts of Glasgow, which advised him to continue a legal action against Wright and Crawford. This action was thrown out of court for being "incompetent", "indefensible" and "woefully deficient in law". Wright and Crawford's insurers admitted negligence on the firm's behalf, but the second firm denied it had acted wrongly in the preparation of the case.

A letter from Kenneth Pritchard, secretary of the Law Society, dated June 1995 to Skene Edwards, another legal firm acting for McIntyre, says: "I am anxious that you should protect your back in this matter because every solicitor who has acted for Mr McIntyre so far has ended up with a claim against them ... You will appreciate that this is a private and confidential letter not to be shown to Mr McIntyre, the sole purpose of which is to give what I hope is helpful advice to protect you and your firm."

The petition for judicial review will claim that this caused prejudice against McIntyre in his negligence claims and breached Law Society regulations over its duty to the public. McIntyre had to fight a complex legal action himself at one point, as no solicitor would represent him.

The petition also alleges that the Law Society breached McIntyre's human rights under Article Six of the European Convention on Human Rights, which entitles him to have a complaint heard by an independent and impartial tribunal.

It is also claimed that the operation of the master insurance policy breaches European law.

If successful, the petition could force the Law Society to investigate McIntyre's original complaints. The master policy could also be voided. McIntyre's lawyers will present the petition to Jim Wallace, the Minister for Justice, and to the Lord Advocate, Lord Hardie.

In January 1996, McIntyre's attempt to sue Wright and Crawford and MacRoberts for more than #2 million each collapsed.

He fought the case without legal representation. The judge said the case should be dismissed as McIntyre had not filed legal papers in the court.

McIntyre appeared in Glasgow Sheriff Court in 1995 after admitting a breach of the peace by smashing up the offices of Grant and Co, another law firm that acted for him.

He barricaded himself in a kitchen and slashed his wrists. He was arrested, remanded in custody and suffered a breakdown.

However, he was given an absolute discharge when Sheriff George Crozier said: "Obviously, the accused has been sadly wronged and lost a tremendous amount of money, indeed has been ruined because of negligence in drawing up his deeds."

John McNeill, a former president of the Law Society, has said there was professional negligence over McIntyre's case. McIntyre suffered at least #3 million in losses and had to sell his #300,000 luxury home.

McIntyre said: "After 14 years and seven courts actions, I have no other alternative but to take this matter to judicial review. I have lost my business, my home, my life, my health - everything. The system is unjust. This has taken over my life. I have nothing left but my fight."

Robson said: "I am horrified at what has happened to Iain. The Law Society did not adequately investigate the complaints."

He added: "What is worrying is that these were simple conveyancing problems which anyone could come up against and they wrecked a man's life. This judicial review strikes at the fundamentals of the legal profession. It raises the question: 'Who will watch the watchers?'"

The Law Society of Scotland said it was aware of the plan to petition the Court of Session for a judicial review, but added: "We have not received the petition so there is little we can say."

The Scottish parliament's justice committee is considering investigating solicitor self-regulation next spring, the SNP's shadow justice minister Roseanna Cunningham said.