Holiday sickness claims: E-signature failures
A law firm director has been suspended after failing to ensure that holiday sickness clients referred by introducers had instructed the firm or knew claims were being pursued on their behalf.
The Solicitors Disciplinary Tribunal (SDT) heard that, in some cases, people were pursued for bills for hundreds of pounds that they were not aware that they had incurred after Opes Law went into liquidation.
John William Duncombe, admitted in 1997, was the sole director of Manchester firm Opes Law between August 2015 and September 2017. The firm started trading in October 2015, specialising in holiday sickness claims.
According to a statement of agreed facts and proposed outcome approved by the SDT, Mr Duncombe was based in Essex, “where he was also a manager of another firm of solicitors”, and tried to visit Opes Law about once a month – but he “did not run cases”.
This was done by a chartered legal executive, who became a manager and owner of the firm, although, like Mr Duncombe’s role as COLP and COFA, these positions were not approved by the Solicitors Regulation Authority (SRA).
The SRA said the firm received holiday sickness referrals from claims management companies, such as the Travel Advice Line (TAL), which “would only usually have been in contact with one member of the party, who would then be treated at the lead claimant”.
TAL issued the conditional fee agreements (CFAs) to the lead claimant’s email address and passed copies to the law firm.
All the CFAs in a group were sent to one central email address, and it was “not clear from the CFAs or the Signable documents that they had been signed, or even seen, by the individual members of the party”. (Signable was the electronic signature provider used.)
This made it “vitally important” that the law firm contacted each party member to verify their instructions – which it failed to do in two cases cited by the SRA.
In one of them, ‘Person CJ’ appeared to have electronically signed her CFA, but told the SRA that she had not.
“Person CJ only received one telephone call from the firm, in which they asked her if she had been ill, and she confirmed that she had not. As far as she was concerned, that was the end of the matter.”
After Opes Law went into liquidation in April 2018, the liquidators appointed Victor Welsh Legal to chase outstanding payments due to the firm.
“As a result of this failure, some clients are now being chased for bills for hundreds of pounds that they were not aware that they had incurred.”
In two other cases, the law firm relied on the “relatively basic information” provided by the introducer and issued a letter of claim to the tour operator.
The matter was not discussed with the clients directly, with the result that the tour operator “was able to bring a dishonesty claim” against them, though it was unsuccessful.
In a further three cases, files were transferred to another law firm without the clients’ permission.
Mr Duncombe also told the regulator that the firm did not have any fee-sharing agreements in place when in fact it had eight – giving introducers 50% of its profit costs and success fees – and did not telling clients about them either.
The solicitor admitted that as COLP, he had “probably drafted” the client-care pack, which “did not effectively inform clients of the introducers’ interests or the fee-sharing agreements in place”.
Mr Duncombe also admitted multiple breaches of the accounts rules, including retaining improperly retaining client money intended to pay disbursements in the office account, and failing to ensure that his positions as COLP and COFA were approved.
In mitigation the solicitor argued that he was suffering from a medical condition, the details of which were redacted, and said that his son was seriously ill during the period in question and in intensive care.
Mr Duncombe was suspended for 12 months and ordered to pay costs of £1,500.
After the suspension, he will not be able to practise as a sole practitioner, partner or member of an LLP, or be a COLP or COFA, hold or receive client money or be a signatory on client account, for three years.
The SDT approved the sanction, saying that neither the protection of the public nor the protection of the reputation of the profession justified striking him off.
Leave a Comment