On or about 23rd of March 2020, at or near Riebeeckstad , Welkom, in the comfort of my own home, shed a tear or two when our honourable president, Cyril Ramaphosa announced that there would be a national lockdown for 21 days. The scariest thing about this national lockdown wasn't that our lives had to be put on hold, but rather that most businesses had to shut down and we were never prepared for this.
I just want to honest, although the human in me, knew that this national lockdown needed to happen in order to save lives and that relief measures were already put in place , during this crisis, the Attorney in me , wondered about prescription and whether or not there was a grace period for that.
This took me a while back to when Dr Classen from the University of Free State, gave us a speech in one of the Road accident fund lectures I attended in 2015, about claims prescribing as a result of the attorney's negligence and how we should never delay working on an instruction just "because we think there is still plenty of time to work on it".
It was exactly at this time last year when I attended a risk management course, when one of the lecturers who was from the legal practitioners indemnity insurance fund informed us that majority of claims against the insurance were those which arose as a result of third party matters which had prescribed in the hands of the attorneys.
This also took me a while back to when I started my articles in 2016 , and the great lessons I learned from my senior colleague about working on a client's file, he would constantly tell me about the importance of taking proper notes, registering claims on risk alert, diarising files, working regularly on each file, and the importance of giving a weekly report.
It was right at that moment that I thought to myself, wow, Puleng , do you realise that even though most businesses will be closed , that doesn't interrupt the period of prescription? for example, you are allowed to issue summons, however, the sheriff offices are closed and there summons cannot be served.
The lesson I learned is to never leave a file on a desk without working on it, because I am pretty sure that we were all not expecting that something like this could happen, I mean we should never for a second think that there is still plenty of time to procrastinate to work on something, rather work on it as soon as possible, by simply starting to work on it, if you cannot get to it, rather ask help from one of your seniors.
I couldn't even begin to imagine that somewhere in the world there is someone who might have left a file on their desk and they forgot about it, only to return back to work on 4 May 2020 and realise that such claim had prescribed in their own hands or under their supervision.
With all the time I had on my hands I decided to compile a list of things that will be required from me as an attorney when taking clients instructions to avoid a claim for prescription and also to provide my clients with an excellent service, Here is what you need to know:
- During the first consultation with the client, make sure you take proper notes by listening to the client. Your notes should establish what the client’s instructions are, particulars of the client, date of accident, whether the accident was reported or not, whether a case docket was opened, whether client was taken to hospital and where was the scene of accident. Then after getting all the facts, advise the clients accordingly by either informing client you are accepting their instructions or not. Inform the client whether it is a hit and run or not and explain about the prescription.
- If you do not accept instructions rather ask the client to go for a second opinion by referring them to other attorneys and if you are accepting instructions, make sure you request for docket contents, medical copies and get them to sign the mandate.
- Once the documents are in your possession, make sure you refer client to the doctor for assessment in order to establish the prospects of success.
- Make sure you do follow up on a weekly basis with the doctor or SAPS in the process of trying to obtain copies or merit report or medico-legal report.
- Ensure you keep in touch with your client on a regular basis and you know their whereabouts, ensure you work on the file at least once a week; register the file on prescription alert, make sure you are updated with the latest legislation or information and ensure that your clients are updated.
- Ensure your clients do not miss their appointments with the doctor and if there is no claim, bring the client in and explain to them that there is not claim and ensure that proper notes are taken and also that a letter is addressed to them and advise them to go for a second opinion.
- If there is a claim, call the client in and explain to them about the different kinds of claims, patrimonial, non-patrimonial, etc.
- Ensure you appoint an actuary in order to establish amount you are claiming.
- Train your staff by giving them regular training and keeping up with the latest developments, make sure you know what is happening in the file by giving proper supervision if your staff is working on the file.
- Make sure you lodge the claim before prescription date and also keep following up with the relevant organs of state or persons, send documents via registered post and courier or by hand. Keep copies of your bundle and receipts. If they do not give you a settlement, issue summons.
- If they do, make sure you discuss the settlement offer with the client and make sure you research whether the settlement is fair or not. Take proper notes and also put in writing by way of a letter.
- Ensure that you Institute actions at the right Court.
- Monitor your trust account by making sure that you put the right account details of your firm, by ensuring you comply with the auditing, make sure you read and understand the contents and that incorrect information is not on the letters/documents.
- Exchange your pleadings timeously.
- If your client wants to terminate your mandate ensure they do it in writing and close the file.
- Ensure all documentation is submitted timeously to the relevant organ of state or persons.
- Keep a diary system for your files and make sure you know where it is, who is working with it, when last it was worked on and never procrastinate.
- Never accept an instruction that is close to its prescription period.
When all of this is over, May we take the lessons with us and come out stronger than before!!!