Solicitors and false statements when responding to pre-action protocol letters

[LRanger]

Hello everyone,

I am extremely concerned that some solicitors are getting away with murder when responding to pre-action protocol letters. I believe that there are occasions where it is reasonable for the solicitors in question to know that what they have stated in letters of this kind is false and/or misleading, and I suspect some of them know that they are being brazenly dishonest. I appreciate the intention to act in the best interests of their clients, but, in my opinion, that should not give them licence to make false statements in response to pre-action protocol letters. I understand that the Solicitors Regulation Authority (SRA) considers dishonesty as an act of serious professional misconduct, but I note that there is very little stated in this regard in their Code of Conduct for Solicitors, RELs, RFLs and RSLs other than as follows:

"1.4 You do not mislead or attempt to mislead your clients, the court or others, either by your own acts or omissions or allowing or being complicit in the acts or omissions of others (including
your client)."

Could anyone perhaps kindly shed some light on when the line gets crossed? I appreciate that a person who knowingly makes a false statement in a pre-action protocol letter or other document prepared in anticipation of legal proceedings may be subject to proceedings for contempt of court, but I am interested in exploring this from purely a professional misconduct perspective.

Sincere thanks.

[LRanger]

It seems the test is set out in Twinsectra Ltd v Yardley and Others [2002] UKHL 12, in particular the test set out by Lord Hutton at paragraph 27 of the Judgment in which it is stated as follows:

"Thirdly, there is a standard which combines an objective test and a subjective test, and which requires that before there can be a finding of dishonesty it must be established that the defendant's conduct was dishonest by the ordinary standards of reasonable and honest people and that he himself realised that by those standards his conduct was dishonest."

It also seems that one has to prove dishonesty beyond reasonable doubt (the criminal burden of proof), which is perhaps excessive.

[atticus]

What causes you to have this concern? Can you please give examples.

Speaking for myself, I would not make an assertion in correspondence on behalf of a client that I did not believe could be supported.

[LRanger]

What causes you to have this concern? Can you please give examples.

Speaking for myself, I would not make an assertion in correspondence on behalf of a client that I did not believe could be supported.

In my honest opinion, one recent example of this, although perhaps not an obvious one, is in relation to a proposed judicial review challenge against the Local Government and Social Care Ombudsman ("the Ombudsman") in relation to a social housing matter. Two of the issues were whether it was, in the circumstances of that case, congruent with the Ombudsman's guidance ("the guidance") titled Medical assessments for housing applications for the Council in question to automatically accept the advice provided to it by its independent medical advisers, regardless of whether that independent medical adviser considered all the evidence or not, and whether the Council itself considered all the evidence. The guidance states as follows:

"independence: councils should make their own decisions about medical needs, taking into account all the evidence, and not automatically accept the view of the independent medical adviser"

And as follows:

"When considering their request, councils may seek advice from external independent medical advisers or ask their own occupational therapist (OT) to carry out an assessment.

But the decision about whether the applicant qualifies for priority, and at what level, is for the council to make based on its allocation scheme and all the evidence provided."

And as follows:

"made its own decision and made this clear in its decision letter. For example, it should not be saying "its medical adviser has decided". The council may set out the independent medical adviser's view, but we would expect it to go on to explain its reasons for the decision reached"

So, in short, the guidance makes plain that a) independent medical advisers can advise the Council, but that the Council should make the decision and b) the Council should consider and weigh up all the evidence, and not just defer to the advice sought from its independent medical adviser, who may or may not have considered all the evidence.

When I challenged this, the response that I got back from the respective solicitors was as follows:

"...the criticism that the Ombudsman should have considered whether the Council automatically accepted the Medical Advisor's opinion is a mischaracterisation of the Ombudsman's Good Practice Guidance. The Ombudsman's Good Practice Guidance does not prohibit local authorities from relying upon independent medical advice; rather when read fairly the publication makes clear that the expectation is that authorities will consider all relevant evidence:

"we expect to see the council has considered all the medical evidence the applicant provided, as well as the independent medical adviser or OT's assessment"

"a common fault we find is where councils simply accept the view of the independent medical adviser and fail to record or explain how they weighed any conflcting evidence from the health professionals involved with the family, and their own medical advisers."

The counterargument was then that because the Council's independent medical adviser (who was not employed by the Council in this case, so therefore cannot be reasonably regarded as 'the Council') allegedly considered all the evidence shortly before the Council automatically accepted it, on that basis, there was no departure from the guidance. I consider that statement brazenly disingenuous and arguably deceitful, not least because a) it is plain that that arrangement essentially means that the independent medical adviser was, for all intents and purposes, the decision-maker and b) the Council itself did not consider all the evidence in accordance with the guidance or at all; rather, its independent medical adviser allegedly did. I find it very hard to believe that the respective solicitors did not know that that their statements made in that regard were not false and/or misleading.

It then gets worse, when the Ombudsman made the decision I challenged on this issue, it was made plain that but for the fact that I was rehoused, the Ombudsman would have asked the respective Council to make a fresh decision, which, in the circumstances, implies it was accepted by the Ombudsman that there was a departure of the guidance of the kind set out above, as the other faults identified by the Ombudsman would not have resulted in the Ombudsman taking any further action in this respect. When I pointed this out, the respective solicitors argued that there were no other faults identified by the Ombudsman in this case other than the faults identified that would not have resulted in the Ombudsman taking any further action, which, of course, begs the question as what was to be reconsidered by the Council but for that fact that I was rehoused. Again, I consider that statement brazenly disingenuous and arguably deceitful and/or misleading.