We lawyers have it drummed into us from a very early stage that we must clearly record the discussions with our clients and the advice given. This is either recorded in a letter to the client or in the form of a file note. This is a matter particularly close to my heart as risk management partner at WJM and was brought into sharp focus by a recent case in the Court of Session. The case involved the sale of shares in a Company. A dispute arose as to whether or not there had been a breach of certain warranties and in particular whether or not the purchaser was aware of certain of the terms of the Articles of Association of the Company being sold. The matter turned on a telephone conversation which had taken place between a solicitor and one of the Directors in terms of which the solicitor said that he had passed on certain information but the Director said that he had not. Regrettably, the solicitor failed to confirm the telephone conversation in the form of a file note. The result was that the Court of Session preferred the evidence of the Director of the Company as a consequence of which damages of £586,250 were awarded.

I am not suggesting that Members who fail to record important matters are likely to face substantial claims in damages. There are however circumstances in which the interests of the Member are best protected by properly recording discussions which have taken place and agreements which are reached.

Let me give you two examples. Firstly, let’s take the example of a member of staff who is not performing to the required standard. Typically, informal discussions will take place with the member of staff. It is important for the terms of these discussions and the targets which might be set to be recorded. Ideally they would be recorded in a letter to the member of staff but if not, they should be recorded in the form of either a file note or minutes of the meeting. If you do not do so, disputes can arise as to what was said and what was agreed. Even although these discussions are taking place outwith a formal disciplinary context, it is nonetheless crucial that these matters are recorded.

Secondly, it is not uncommon for members to complain about the lack of adequate support from the local authority. In extreme cases this can lead to stress and depression and other forms of ill health. With budgetary cuts, the situation is only likely to get worse. In extreme cases such injury to health is recognised as an industrial injury which could give rise to a claim against the local authority in the same way as physical injury to a Member who for example slips and falls on a floor in the school. To bring a claim based on stress or depression, however, the claimant requires to prove that there was negligence on the part of the local authority by not providing the necessary support. To prove negligence it is necessary to show that the local authority was in breach of its duty of care and, importantly, that by reason of that breach of duty, it was reasonably foreseeable that the Member would suffer injury. This of course requires the member to be able to demonstrate firstly that the local authority was aware of the concerns of the member about lack of support, secondly that the local authority did nothing or did not do enough in response to those concerns and thirdly that the member suffered a deterioration in health as a result. I should make it clear that it is notoriously difficult to bring claims of this nature. A Member’s position is however greatly assisted where the Member has a clear paper trail of exchanges with the local authority recording key issues.

So the message is that clear records of discussions which take place and of decisions reached should be maintained.

Martin Stephen (WJM Solicitors)