In this article we consider the increasing risk of miscommunication between professionals and their clients, the approach the courts have taken to this issue and the actions professionals can take to protect both themselves and their clients from it in the future.
The potential for miscommunication
As the services sector becomes ever more reliant on electronic communication, it seems that the potential for miscommunication between client and professional has never been greater. For while texts, emails and instant messaging all offer speed and convenience, they also present a hotbed for misunderstanding and confusion. This is not only because of the speed with which professionals are expected to respond to such communications, but also because of the increasing brevity of those communications and the informal and abbreviated language that is increasingly used within them.
Added to this is the risk posed by the accessibility of electronic communications. With many professionals now enjoying remote access to their work emails through mobile phones, laptops, tablets and even watches, there is much greater potential for instructions to be received and actioned out of office hours or on annual leave. At these times, professionals risk greater distraction from environmental events, making them potentially less able to identify ambiguity and potentially more prone to misinterpretation.
While mobile phones have existed for many years, reliance on them continues to increase as employees become more agile and more mobile. Making and receiving calls in the car, on the train or walking down the high street can be efficient, but it can also hamper concentration.
But it is not only electronic communication and new working patterns that present a heightened risk of miscommunication between professionals and their clients. Due to the increasing level of migration over the last ten years, there is a significant proportion of the UK population for whom English is not a primary language. Where technical issues are being addressed, this can make the risk of confusion even more acute.
Further still, and because people are living longer, an ever-widening generational gap is occurring. With new generations not only adapting and redefining existing words and phrases, but also replacing them with acronyms and emojis, there is added potential for misunderstanding to occur. As parents, some professionals may have first-hand experience of this.
Examples of miscommunication
Miscommunication between client and professional can occur in a variety of different ways. It may simply be that the instructions given by the client are themselves ambiguous, confused or incomplete. Alternatively, they may conflict with instructions given previously, either by the same client or by a jointly instructing client.
On other occasions it may be unclear what the scope of the client’s instructions are and whether they encompass or extend to certain incidental or ancillary tasks.
Finally, for example, misunderstandings may arise through interaction with other professional advisers, who may be relaying instructions or whose own actions or instructions might result in a client’s instructions being misconstrued or misinterpreted.
Regrettably, when misunderstandings do arise, they risk becoming fixed in the sufferer’s mind, causing later events and remarks to be all too easily interpreted in light of a mistaken belief.
The approach taken by the courts
While the risk of miscommunication between client and professional may have increased, it is not a new one. Over the years the courts have been required to consider a number of professional negligence claims in which it has been alleged that client instructions have been misinterpreted or misunderstood.
Although each case mentioned below involved solicitors, the principles articulated are capable of much wider application and all professionals should take note of them.
Griffiths v Evans
Here the claimant had instructed the defendant solicitors fearing that the statutory compensation payments he was receiving following an accident at work would be reduced. While the solicitors engaged in negotiations in relation to those payments, they failed to consider or advise the claimant of an alternative remedy available to him at common law.
In his dissenting judgment, Denning LJ commented that:
‘On this question of retainer, I would observe that where there is a difference between a solicitor and his client upon it… the word of the client is to be preferred…or, at any rate, more weight is to be given to it…If the solicitor does not take the precaution of getting a written retainer, he has only himself to thank for being at variance with his client over it and must take the consequences.’
Gray & Another v Buss Murton (A firm)
In this case the claimant was companion and housekeeper to a successful businessman, Mr Akehurst. After relations between Mr Akehurst and his son soured, he prepared a home-made will by which he intended to bequeath his home to the claimant absolutely. At Mr Akehurst’s request, the claimant then took the will to the defendant solicitors, to confirm that it was fit for purpose. After inspecting the will, the defendant’s representative confirmed that it was legally valid, which satisfied the claimant.
However, following Mr Akehurst’s death, it transpired that while the will was valid, it did not bequeath his home to the claimant absolutely, as was intended.
In a claim for professional negligence against the defendant, the court concluded that the defendant had been negligent in failing to clearly ascertain the claimant’s wishes and in turn, the scope of the defendant’s retainer. It observed that:
‘…it is the lawyer who is in a far better position to recognise the possibility of misapprehension where the question of the extent of the retainer is concerned…and so it is the solicitor’s business to ascertain the client’s wishes accurately, bearing in mind the possibility that the client, through ignorance of the correct terminology, may not have expressed it correctly.’
Wellesley Partners LLP v Withers LLP
Here the claimant was an executive search firm set up by Mr Channing and his colleague. In 2007 and with a view to expansion, Mr Channing agreed to sell a 25% share in the claimant to Addax, a Middle Eastern bank, for £2.5m. Mr Channing instructed Withers to prepare the necessary documents to facilitate the investment, which included a new LLP agreement.
Amongst other matters, the new agreement was to provide that after 42 months, Addax had the option of cancelling up to 50% of its investment, which would then be returned to it. However, following an undocumented telephone conversation between Mr Channing and Withers, the latter amended the draft agreement so that Addax could exercise its option at any time up to 41 months from commencement.
In 2009, and in response to the financial crisis, Addax exercised its option causing significant financial hardship to the claimant. After a settlement was eventually reached with Addax in 2011, Mr Channing commenced a professional negligence claim against Withers. His main allegation was that Withers had made the changes to the option without instructions to do so.
At first instance the judge found that it was likely that Mr Channing had given further instructions in relation to the option, but not in terms that accorded with the changes made by Withers. In doing so, he observed that:
‘…if Mr Channing’s instructions were not clear…[Withers’] duty was to obtain clarification. I do not think it is open to a solicitor who has not drafted something in accordance with his instructions to escape liability by saying that the instructions were unclear.’
Steps to minimise the risk
It should be clear from the above that the courts place considerable onus on the professional to apprehend and defray any misunderstanding. Therefore, having regard to the present-day risks identified above, professionals may consider it good policy to:
- Take calls on the go but, unless urgent, call back later for instructions and advice
- Qualify out of office advice required urgently, or refer the matter to a colleague
- Make attendance notes as a follow up to all out of office calls
- Avoid responding to client emails when impaired or distracted
- Set up a reliable email monitoring system before departing on annual leave
- Confirm material oral instructions in a short follow up email or letter
- Contrast instructions needed with those received, to ensure the latter are complete
- Allow time for reflection before acting on instructions
- Seek confirmation when needed, to put any misunderstanding beyond doubt
- Keep in mind the client’s commercial objectives
With modern technology making instant access and superfast communication the new norm, the pressure on professional advisers to act quickly and efficiently when receiving and responding to client instructions has never been greater. However, if miscommunication is to be averted and claims for professional negligence avoided, all professionals should take the time to consider and adopt the behaviours essential to managing this increasing risk.