11.9.2019
URGENT: PRE-ACTION LETTER BEFORE CLAIM
Dear Sirs,
Re: Dr. _____________ v Tuckers Solicitors LLP and Phil Smith
We are instructed by Dr. _____________ to bring a claim for damages against Tuckers Solicitors LLP and Phil Smith in connection with negligence, breach of contract and breach of fiduciary duty.
Breach of Duty
As is clear from the summary above, the defendant was negligent in that (i) it owed the claimant a duty of care; (ii) it failed in its duty; and (iii) the claimant suffered loss as a result. The duty of care in the instant case is established by the professional duty that the defendant accepted it had in relation to the claimant, as well as that established by a legal contract (retainer) agree between the parties. The defendant held itself out as having adequate skill and knowledge properly to conduct the claimant’s case by stating that it was an expert in criminal litigation.
The defendant’s conduct has manifestly fallen below the standards of a reasonably competent solicitor, in circumstances where there was a wealth of material suggesting that the claimant’s mental health needed to be explored further and expert opinion obtained to deal with his state of mind at the time of the alleged offences and/or his fitness to stand trial. There was also compelling evidence that the claimant’s mental state had deteriorated significantly after the report completed by Dr. Cree.
In relation to this, the claimant will argue that the following matters (amongst others) constituted professional negligence:
- Failure to investigate and/or make sufficient enquiries to ascertain whether _____________. made the call to Ms. Wright, despite being specifically requested to do so by the defendant;
- Failure to properly consider the obvious need for assessment of potential mental health conditions present at the time of the alleged offences and/or at the time of the trial;
- Failure to obtain psychiatric evidence, or sufficient psychiatric evidence, in relation to the claimant’s mental state at the time of the alleged offences;
- Failure to obtain psychiatric evidence, or sufficient psychiatric evidence, in relation to the claimant’s fitness to stand trial;
- Failure to obtain medical records in order to establish the same and/or allow a full expert psychiatric opinion to be given;
- Failure to obtain an addendum report/updated report from Dr. Cree dealing with the above;
- Failure to provide proper instructions to a psychiatric expert in order to establish answers to the relevant issues;
- Failure to obtain evidence, including contemporaneous witness evidence or otherwise, outlining the mental state of the claimant at the relevant times;
- Allowing the claimant to stand trial and/or give evidence without making sufficient enquiries as to his mental state;
- Failure to stop the trial process when it became clear that the claimant was not fit to continue;
- Failure to rely upon evidence of the defendant’s relevant mental state during the trial process.
The claimant will further aver that the allegations against the defendant, in relation to professional negligence, also constituted separate breaches of the contractual agreement and/or breaches of fiduciary duty.
Causation
The evidence in the case is more than sufficient to establish that the defendant’s professional negligence (and/or breaches of the contractual agreement and/or breaches of fiduciary duty) caused the convictions. The account given to the defendant by the claimant, at the various stages of proceedings, was bizarre. As the defendant is already aware from the claimant’s appeal against conviction, it is inconceivable that a professional in the claimant’s position would seek to challenge the evidence in the manner advised by the defendant, unless he was suffering from serious mental deficiencies at the time. Had the defendant been properly assessed, with all relevant evidence, it is inevitable that a diagnosis consistent with that of Dr. Ho would have been forthcoming.
Request for Disclosure
The claimant requests disclosure of all relevant material in relation to any consideration given to:
- What, if any, investigation was conducted in relation to the maker of the telephone calls made to Ms. Wright, including but not limited to any investigation into _____________;
- The claimant’s mental condition at the relevant times and/or the defendant’s knowledge of the same;
- The instruction of psychiatric expert(s);
- What advice, if any, was given and/or received in relation to collating evidence relating to the claimant’s mental condition at the relevant times;
- The potential deployment of the claimant’s mental condition as part of a defence at trial.
In addition to the above, a disclosure request is specifically made for the instructions given by the defendant to Dr. Cree prior to him completing his report.
Quantum
As a direct result of the defendant’s failure in respect of the above, the claimant was convicted of three offences and sentenced to 30 months’ imprisonment, was ordered to pay compensation in the sum of £4000 and costs in the sum of £23,395.00. Furthermore, the claimant was found unfit to practice medicine and was erased from the list of registered practitioners. It is therefore clear that the claimant has suffered significant financial and reputational loss as a direct result of the defendants’ failures. Although it is now impossible to put the claimant in the position he would have been in, had it not been for the defendants’ failures, he must be adequately compensated for the time he unnecessarily spent in custody and the consequential financial/reputational damage. It will further be argued that, as a result of the defendants’ failures, there has been a further, significant deterioration in the claimant’s mental health. Further details will be provided in due course.
Proposed Co-Defendants
As is apparent from the circumstances set out above, the claimant is ____________ and the defendant is Tuckers LLP [and Phil Smith]. The defendant is asked to confirm whether it accepts Tuckers LLP [and Phil Smith] to be the correctly-named defendant.
At this stage, the claimant is unable to identify other potential co-defendants. The defendant is invited to name any potential co-defendants to this action and is specifically asked whether it accepts vicarious liability on behalf of the employees who acted at the various stages of the claimant’s representation (including, but not limited to, Phil Smith).
Action Required
Under the Pre-Action Protocol for Professional Negligence, the defendant is obliged to acknowledge receipt of this correspondence and to provide a detailed Letter of Response to each of the allegations/headings detailed. In line with the Pre-Action Protocol, we ask that the defendant acknowledges receipt of the Letter Before Claim in writing within 21 days of its receipt.
We consider that this correspondence provides sufficient information to enable you to commence investigations in order to respond appropriately. Given the time-scales involved, we request that you do so within one calendar month of receipt of the Letter Before Claim. We also suggest that the defendant immediately forwards a copy of this letter to its professional indemnity insurer.
Our client confirms that he is open to this matter being dealt with by way of adjudication. Should the defendant wish to seek this alternative, it is incumbent upon the defendant to indicate this at an early stage. If the defendant wishes to avail itself of adjudication, the claimant will propose three adjudicators or seek a nomination from the nominating body.
As the Pre-Action Protocol does not alter the statutory time limits for commencing proceedings, we request that the defendant agrees to ‘a standstill agreement’, to extend the period in which a limitation defence will not be pursued. If you do not agree to this course, we will have no choice but to commence court proceedings without further delay.
We look forward to receiving your Acknowledgment and Letter of Response, failing which we will have no alternative but to issue proceedings without further reference to yourselves.
Finally, you will be aware that the Protocol makes clear that this correspondence is not intended to have the formal status of a pleading and, therefore, we reserve the right to provide further information under each of the headings above in due course.
Yours faithfully,
Holborn Adams Solicitors