Do I have grounds for reporting a solicitor to the SRA?

[jetster]

Hello, I’m currently taking a builder to court. I am representing myself and the builder has a solicitor. It is a small claims case.

A few months ago, their solicitor phoned me on my mobile phone to inform me that they would like to settle out of court. I accepted and asked for confirmation in writing from him. This was not forthcoming and on the following day I sent him a text message asking for an update. I deliberately chose to send a text message because I was suspicious of his reluctance to make a written offer - and to also get a record of any ensuing discussion via text messages.

In the text message discussion, he was very evasive about providing details, his tone was very unprofessional, I can upload a redacted transcript of the entire exchange if you like (its quite bizarre!) – for you to assess if the conduct and evasiveness displayed in this exchange is in breach of SRA rules. His English also isn't great.

Ahead of a court hearing, on the morning on March 24^th, he sent documents to me and to the court on the afternoon before. To my surprise, the judge allowed them at the hearing – despite me pointing out that this is against CPR rules and that I had not had time to fully read them. Naturally, I didn't want to argue with the judge during my hearing!

The judge moved the hearing to another court (neared to both of us), added the builder’s ltd company to claim and suggested that we continue trying to resolve the issue out of court again. I then sat down with them in the court’s cafe and we again agreed a settlement and shook hands on it. A few days later, I sent the solicitor an email outing what we had agreed. He called me back the same afternoon to say that the builder (and his partner in the ltd company) would settle by paying me the next day. I asked for this in writing and again he didn't respond.

Around a week and a half later, he sent me an image of a ‘receipt’ (via WhatsApp!) for me to acknowledge that I had received payment from his client. I replied via WhatsApp and said I had not yet received any payment and if/when payment was received then I would acknowledge. I received no payment and no further updates from him. Around a week later, I sent him other email asking him about his WhatsApp ‘receipt’…and informing him about against CPR + SRA rules and the instruction given to us by the judge to attempt settlement in good faith. I have not received a reply to this a week later.

I can only assume that such actions are designed to frustrate and can think of no way in which they are helpful to either party.

From initial interactions with him I was doubtful of his qualifications so I did check on the Law Society web site and the chap is a solicitor.

Are there sufficient grounds for me to report him to the SRA?

[efpom]

No - The SRA will not get involved in the conduct of a solicitor who represents your opponent during proceedings, because of the inherent jurisdiction of the court.

The conduct of the other side's representative seems very odd.

However, he may not be a solicitor.

If this is on the small claims track CPR 27 as supplemented by Practice Direction 27 at 3.2
(1) A party may present his own case at a hearing or a lawyer or lay representative may present it for him.

So your first act that you check with the Law Society, that he, is in fact, a solicitor.

If he is not a solicitor, but he has represented to the court as a solicitor, and the court file may show that, or he represented to you as a solicitor, and you can prove that, he is in a world of trouble.

Whether or not he is a solicitor, you can advise the court that an offer to settle was made by the representative (lay or professional) and that you accepted that offer, but that whilst payment was promised, it was not, in fact made, even though you were requested to acknowledge that payment was made. You can evidence that by the correspondence of that, and any other evidence of settlement that you have.

Pausing there, if the representative is a solicitor, You should not deal with his client directly on any matter and he should not encourage you to do so.

You will still need to inform the court at the next hearing first thing, that the parties have compromised the matter and present a draft Order to the court. That should be in the form of a Tomlin Order. –If then the other side deny the compromise, you present your evidence to the contrary and any evidence that the rep pretended and acted as a solicitor, when he was not, sit back and enjoy the show.

https://www.oxbridgenotes.co.uk/revi...9QEwAHoECAsQAg

[jetster]

Thank you, EFPOM
Incredibly, he is a qualified solicitor! It's the first thing I checked because I too was suspicious. I found this more incredible after seeing his performance in court. He didn't know for what purpose he was there, appeared very uncomfortable, didn't understand the judge's requests, spoke with poor English. I was surprised that the judge cut him so much slack and allowed last minute submissions from someone supposedly bound by CPR and SRA rules.

I have not dealt with his client direct at all during the legal proceedings.

Am I within my rights to say that I doubt their honesty in this matter, reject all further offers and seek the full amount through a judgement?

I can understand why the SRA would not want to get involved during a live case. What about after the case?
It had also occurred to me that were any body to intervene and replace him, then it may be to my detriment as I could have someone competent to contend with!

[efpom]

Apologies - I missed your last paragraph - that you HAD checked he was a qualified solicitor.

It would seem that your hearing was a directions hearing- am I right?

If that is right, you have yet to have a trial of the issues - am I right?

You are entitled to pull out of any "without prejudice" discussions at any time.

The court is not entitled to take any of that into account during the trial of the issues, but IS entitled to take the conduct of it into account, in any application for costs – for small claims, see CPR 27.14. – The litigant in person rate is 19.00 an hour.

However, the evidence you describe points towards a conclusion to those discussions with an agreement to settle the matter, without a trial of the issues. There is therefore no need for any further discussion. The court's only function therefore is to issue a consent order, I advise a Tomlin Order.

To force the issue, I would make a draft Tomlin Order, (you can post up your redacted draft), sign your part of it and send it to the court, with a draft copy to the other side, inviting it to send it’s signed copy to the court and to you. If they send their signed copy back to you, you then send that signed copy to the court.

The court will then issue the Tomlin Order.

If they do not sign the draft Tomlin Order, the court will not issue the Tomlin Order, and the trial of the issues will proceed.

However, a competent judge, having your copy in his trial bundle, will be wanting to know, at commencement, whether a compromise has been reached, or not.

On your last two paragraphs – Yes (do not allege dishonesty – if you want to allege anything – allege an absence of good faith, and then only when seeking a costs order.)
On the SRA, no, unless the judge refers a solicitor’s conduct to it.

[efpom]

Actually, I may have got ahead of myself - I am so used to Tomlin Orders, I forgot that, depending on circumstances an 'ordinary' consent Order can suffice.

I have come to this on the side wind of a question about a solicitor's conduct.

I assume from your writing that you are seeking a money judgment only.

If I am wrong about that, it might be worthwhile posting up your particulars of claim, so as to be able to see what remedy you are seeking and what the settlement discussions were aimed at achieving, if different from the POC.

[2222]

One explanation of what's happened is that the builders have authorised the solicitor to agree a settlement. He's done that in good faith, but the builders simply haven't paid up. They may not have the money.

Are you suing a limited company or an individual? In either case, is the defendant able to pay what's been agreed?

[jetster]

EFPOM
No, you didn't miss it - I snuck it in and edited my original post ...for the benefit of newcomers to the thread,

"It would seem that your hearing was a directions hearing- am I right?" No, the hearing was to have the default judgement against the builder set aside. The judge allowed the set-aside but also added their ltd company to the claim. The next hearing will therefore be the 'actual' hearing of my claim.

Thanks for Tomlin / consent order suggestion. I will google around and look at drafting one. My suspicion is that he will simply ignore it and my time may be better spent terminating settlement discussions now. I have my documents and witness statements prepared for an eventual hearing anyway.

"I assume from your writing that you are seeking a money judgment only."
Yes, that's correct.

I'm pretty confident that I have sufficient evidence to win an eventual judgement (initial complaint emails, pictures, witness statements from trade professional about quality of their work, etc). I wanted to know if it was feasible for me also to complain to the SRA. It would appear not.

[jetster]

One explanation of what's happened is that the builders have authorised the solicitor to agree a settlement. He's done that in good faith, but the builders simply haven't paid up. They may not have the money.

Of course, the the solicitor could be acting in good faith and upon the instructions of his client. However, his 'mode of operation' thus far leads me to believe that this isn't the case. He's never communicated any offer in writing/email, only from his mobile. When I send emails to follow up on the offers that they have instigated, I receive no replies. Off course, I don't expect their solicitor to be helpful to my cause (despite him saying in the last phone call that he was 'on my side' in trying to get a settlement!) but I did do expect a degree of professional standards - hence my SRA question.

Anyway, from the responses thus far it looks like a complaint to the SRA is a non starter and I should probably concentrate on my claim itself.

[efpom]

OK - so you are now suing a limited company only and it's a money claim only. New first step - check companies house online to see if it's still trading and no applications for striking off are pending.

However, the object is and always has been, to get the money!

I am confused by the final paragraph of your post 7. If agreement has been reached, there are no further discussions and you would be perfectly entitled to send the solicitor a draft consent order, signed by you and ask him to sign it, send it to the court, and confirm, in writing to you, that he has done so.

However, would that be wise?

I say that, because there was a promise to pay, and pay the following day. That promise was made to you by a solicitor. That did not happen.

So, you could behave like a friendly debt collector, calling the solicitor every day -

"you told me on (Date) that I would be paid the next day it did not happen please assure me that the money will be in my hand by COB today", writing emails every day to same effect, and keep at that until you get the money paid over to you, or until you are told that they are not going to pay.

I do not believe that it is wise to use the word "undertaking", or to remind the solicitor on what the SRA requires of him and what the court requires of him under the CPR


I do hope my writing helps - we all need the views of someone else on a matter at times, as I demonstrate below
(Forget my previous advice to send a draft order, signed only by you to the court. A wise guy tells me that could be construed as an abuse of process. As he has Three Degrees, who am I to sing a different tune!)

[jetster]

EFPOM, I will mull over the consent order vs repeatedly calling/contacting the solicitor option. I suspect that they're likely to just ignore either approach until we actually get near an actual hearing date...when they may approach me again!

I started this thread to get input on SRA action - and this doesn't appear to be a viable option.
WRT the case itself (the builder and his limited company are both listed on the claim), I started a separate thread earlier - see:

https://legalbeagles.info/forums/for...-to-strike-off


"I do hope my writing helps" - Yes, your responses certainly are helpful. Thanks !