Legal Analysis: Professional Misconduct

Part 1 700 (230)

Q1. Under SRA Code of Conduct, code 6.3 requires that a solicitor must keep the affairs of the clients, both current and former, confidential unless the disclosure of this confidential information is required or permitted by law or with the consent of the client. Code 6.4 requires a solicitor that when they are representing a client on a matter, they must make the client aware of all the information material to the matter of which they have knowledge.

According to these two codes under SRA Code of Conduct, Paul Taylor has not acted professionally in accordance. By revealing information about his former client, Maliya Campbell, he breached the confidentiality obligation required by the code. Such disclosure was not required by law and was not with the consent of Maliya Campbell. Further, the information disclosed was not material to the current case of Malayi University.

Q2

The Civil Procedural Rules (CPR) provides for limitation period governing procedure for claims. It is 14 days for an admission of the claim, acknowledgement of service, and defence. As per the rule, Malayi University has failed to file the defence to the claim.

In the current scenario, Malayi University must file an application to set aside the default judgment. CPR 13.3 provides certain grounds for the court to consider setting aside the default judgment. That Malayi University has a real prospect of successfully defending the claim; that the court thinks that is some other good reason of why the default judgment must be set aside or varied; or that Malayi University should be allowed to defend the claim.

In the current case, that fact that Malayi University was not aware of the proceedings until Verity unexpectedly received the court order of default judgement, dated 8 February 2020 on 10 February and until when Paul informed Verity that proceedings were issued against the University and to check whether she received anything in post and she found the unopened envelop regarding court’s documentation about the proceedings. This is a good ground for Malayi University to be allowed to defend the claim. The fact that the invoice did not mentioned the agreed 15% discount; that the issue of quality of the product was not addressed; and that there was not contact from the external debt agency are good grounds presenting a real prospect for the University to successfully defend the claim.

Q3

There would be a likely opposition on the part of Forensic Fotos against Malayi University’s application to set aside the judgement. The opposition would be based on the grounds that the failure to respond to the claim proceeding was serious or significant; that there is no a good reason for the default or failure; and that given the circumstances of the case, the default judgment should not be set aside.

In this case, the issue of promptness will be a key factor that determines the opposition. Forensic Fotos will raise this issue in regard to responses of Malayi University with respect to the transaction and the claim proceedings. Forensic Fotos will argue that there was no corresponding from the University in respect to the disputed invoice after it received the email from Forensic Fotos. Further, the University did not respond to letters of Forensic Fotos dated 15 August, 2019 and 20 September 2019 notifying the pending invoices. Forensic Fotos will attempt to establish a history of the University in not being prompt.

To add further, the University did not respond to the claims served. The fact that the University did not see the unopened envelope before the default judgment might be termed an unreasonable explanation for the delay. This might be treated as a serious and significant default that may show that the University ignored the claim, which led to the default judgment.

Forensic Fotos may also respond that after having received the order of judgement on 10 February, there is a delay in issuing the application to set aside the judgment. This might also be presented as a second serious and significant default. It would request the court to consider all the circumstances of the case.

Part 2

Q1

PARTICULARS OF CIRCUMSTANCES RELATING TO THE COMMISSION OF THE WRONG

On 1 April 2019, the plaintiff was lawfully driving his car (a Vauxhall Corsa) along the A123 towards Bloomers trying to get to his doctor’s surgery.

The plaintiff was driving at 35 mph when he had approached a sharp left hand bend in the road.

When the plaintiff entered the bend, defendant in a Nissan Micra unsuccessfully overtook the lorry travelling the opposite way and collided with the Plaintiff’s car.

When owing to the negligence of the defendant and breach of duty in and about the driving, care, and control of his car and driving on the wrong side of the road, the defendant collided with the plaintiff’s car.

As a consequence whereof, the plaintiff suffered severe personal injury and suffered loss damage and expense.

The defendant was guilty of negligence and in breach of statutory duty in that he drove without due care and attention; failed to keep a proper lookout, negligently overtook the lorry; unlawfully driving his car on the wrong side of the road; failed to have adequate regard that bend in the road was sharp; failed to stop and slow down to manage his car in order to avoid the said collision; and failed to comply with the provisions of the Roads Traffic Act 1998.

PARTICULARS OF PERSONAL INJURY

The plaintiff suffered serious injuries to the head and the face. He was taken by ambulance to Sickley Community Hospital.

The plaintiff received treatment for the injuries and the treatment is still going on. He has been referred for facial reconstructive surgery with follow up surgery needed.

The plaintiff is now back to work full time, but the accident has caused him a disadvantage on the labour market. The fact that plaintiff requires continuing treatment indicates that he continues to suffer from ongoing pain on his head and face. The injuries were severe and they will interfere with his enjoyment of life and all routine and other activities. The fact that the plaintiff already had an appointment for surgery indicates that the injuries may have increased affect on the medical health of the plaintiff. As such, the injury caused by the accident would restrict his lifestyle and employment prospects. This would not have happened if the injury had not been sustained.

Q2

The court will allot this case to the Multi-Track. Multi-track is normally for claims valued over £15,000. Also, even when the value if less than this, this track will deal with case that is complication, where it may be difficult for the plaintiff to prove that the injury sustained by them is because of the other party’s fault. Such claims will give the parties more time to discuss and negotiate the compensation.

The claim in this case may be more than claims valued over £15,000 gathered from the fact that the Mr. Long suffered serious head and facial injuries; that his treatment is going; that he is referred to facial reconstructive surgery with follow up surgery; and that he may suffer loss due to the disadvantage on the labour market he may incur due to the incident.

Even if the value is less £15,000, the claim will go to multi-track. The case appears to be complication given the lesser chance of proving that the defendant was wrong or caused the accident. Mr. Long will face challenges proving Mr. Abdul’s wrong gathered from the fact that Mr. Long was not wearing his seat belt at the time of the accident. He was driving at a speed of 35 mph, which was over the 30 mph limit in a hurry to get to his doctor’s surgery.

Q3

Contributory negligence can be applied in this case as the medical evidence from a single joint expert stated that injuries would have not been so bad had Mr. Long been wearing his seat belt.

The Road Traffic Act 1988, s14 requires wearing a seat belt while driving on the road. Not wearing the seat belt contributed to the injuries Mr. Long received. Thus, in case this contributory negligence is proven, Mr. Long could find that the compensation he claims to be entitled to would be reduced.

The amount of compensation bound to reduce depends on the extent Mr. Long negligence contributed to his injuries. It is not necessary to establish that his negligence of not wearing the seat belt constituted a part of the cause of the accident. It is the consequence that matters.

According to the Law Reform (Contributory Negligence) Act of 1945, s1(1), if Mr. Long suffered damage partly due to his fault and partly due to the defendant’s fault, the reason of his fault will not defeat his a claim in respect of that damage. The court may reduce the damages considering Mr. Long’s share in the responsibility for the damage. This is supported by the ruling in Froom v Butcher (1975), where the court decided that compensation may be reduced if the lack of seatbelt contributed to the injury. Thus, it was wrong on the part of Mr. Long to not have worn the seatbelt. The damage, thus, is in part the result of this fault. Mr. Long must share to the extent decided by court in the responsibility for damages. His damages may be reduced to such extent the court determines. Discover additional insights on Judgment and Evidence in Contractual Disputes by navigating to our other resources hub.

In Froom v Butcher (1975), the court held that the failure on the part of the plaintiff to wear a seat belt constitutes contributory negligence if the use of the seat belt would have avoided or lessened the injuries the plaintiff sustained in the accident.

In this case, Mr. Long must note that the court will be required to review the facts and circumstances of the case. This will be done so in order to assess the level of damage that could have been prevented if Mr. Long was wearing a seat belt at the time of the car collision. For instance, the degree of head and neck injuries sustained by him would not have been so if he was wearing his seat belt that could have prevented him for direct impact on his head and face and sustaining severe injuries.

Q4.

The best cause of action would be to proceed under the Road Traffic Act 1988. Section 2 makes it a statutory offence to drive a vehicle dangerously on a road. Section 1 makes a person driving dangerously on the road and causing serious injury guilty of an offence. Proceeding under this Act 1988 will also cover careless and inconsiderate, driving under its Section 3, which makes it an offence to drive without due care and attention, or reasonable consideration for others using the road. Accordingly, Mr. Long could establish that the defendant breached his duty to take care towards other persons on the road by driving in the manner he was driving and overtaking the lorry. It was a careless and inconsiderate conduct on his part without taking due care and attention that Mr. Long was also taking the turn and the defendant did not bother to care he was dangerously driving to overtake the lorry on the wrong side of the road.

Mr. Long failure to wear the seatbelt was a contributory negligence, but may be considered an unreasonable conduct given the circumstances where he removed the seat belt. Moreover, his failure and the limit of speed at which he was driving may not be treated as a proximate cause of the damage or injury sustained. In Davies V Swan Motor Co (1949), it was held that the lack of proper care for own safety is different from the standard breach of duty. The standard of taking proper care varied from one case to another. His failure to wear the seat belt or to drive within the speed limit did not cause the collision.

Given the circumstances, proceeding under Section 2 of the Act 1988 is the best cause of action.