General Prescription Matters – Tips To Avoid Claims
Claims arising out of the prescription of clients’ matters have been one of the highest categories of claim notified to the AIIF in each of the last ten (10) years. Prescription is usually avoidable if:
- a functioning diary system is in place (and is properly adhered to by all staff);
- there is proper supervision of staff; and
- regular file audits are conducted in the practice.
A dual diary system between professional and support staff will also mitigate the risk of prescription.
Some of the underlying reasons which lead to the prescription of claims include:
- The incorrect prescription date is used. Avoid this by ensuring that:
- you are familiar with any statutory prescription periods that are applicable to your client’s matter;
- you are familiar with any contractual prescriptive periods applicable to your client’s matter (for example an insurance contract);
- you are familiar with the Prescription Act 68 of 1969(especially section 11 – the periods of prescription of debts, section 12 – when prescription begins to run, section 13 – prescription delayed in certain circumstances and section 14 – interruption of prescription by acknowledgement of liability;
- you keep up to date with recent court decisions dealing with prescription; and
- you are fully conversant with all the facts pertaining to your client’s matter and have taken them into account in calculating the prescription date.
- The proceedings are instituted in the incorrect court/forum. (By the time this is discovered, the claim has become prescribed.) Avoid this by ensuring that the court/forum has jurisdiction in respect of the type of matter concerned, the quantum claimed and the parties.
- The incorrect parties are cited in the proceedings*. (By the time this is discovered, the claim against/on behalf of the correct party has become prescribed.) Avoid this by ensuring that;
- you have established who the true defendant is by doing all the necessary checks; and
- you know exactly who your client is and have established that s/he has locus standi. (This may sound obvious, but many claims arise where this has not been done).
- Counsel holds on to the particulars of claim/application and fails to settle them timeously. Avoid this by ensuring that counsel is briefed in good time and follow up/brief another counsel.
- The documents are sent to court before prescription, but your messenger fails to have them issued in time or the sheriff fails to follow your instructions and does not serve in time. Avoid these situations by ensuring that your client’s documents are prepared, issued and served well before prescription. If this is not possible, then follow up with your messenger/the sheriff to ensure that your instructions are followed. Make sure that the address for service is correct and if necessary, give the sheriff detailed instructions on how to find the person on whom the documents must be served. Remember that it is the service of the process (not the issuing thereof) that interrupts prescription.
- A new attorney takes over the file at a time when prescription is imminent or s/he allows the claim to prescribe because it is unclear when the claim prescribes.
- Where the file is taken over by someone within the same practice, this situation can be prevented to a large extent by:
- regular supervision of both junior and senior staff ;
- regular file audits; and
- strict rules and procedures for file order, checklists, working plans, reporting to client and the making of comprehensive file notes.
- Where a file is taken over from another practice, it must be carefully checked to ensure that prescription is not imminent, before accepting the mandate.
- The attorney takes on a matter were prescription is imminent and is unable to institute proceedings prior to prescription. This can be avoided by refusing to take on such matters (making sure that you have explained the prescription problems to the prospective client). If you do take on the matter, explain the problems to client and obtain a written indemnity before accepting the mandate.
- The file goes missing. This can usually be avoided by ensuring that:
- Together with a fool proof diary system, you have safe and efficient storage systems for both paper files and electronic copies;
- If you are moving offices, you are especially careful with planning and executing the move, as this is the time when files most often get mislaid;
- All files are properly signed out to the person removing them;
- Where possible, avoid removing files from the office and be particularly vigilant where an employee leaves the practice (especially where this is not an amicable parting of the ways).
*An example of the citation of the incorrect plaintiff, is where the practitioner has been instructed by his client Mr X, in his capacity as a trustee of X Trust and the summons cites Mr X as plaintiff (and not in his representative capacity). This sounds obvious, but happens often. This is one of the many reasons why it is crucial to know who your client is.