In historic institutional child abuse claims, we are continuing to see requests by some defendants for plaintiff’s solicitors to provide an independent solicitor certificate on settlement of the plaintiff’s claim. The certificates typically contain statements to the effect that the solicitor acting for the plaintiff has explained to the plaintiff the purport and effect of the settlement deed, the plaintiff appeared to have understood that advice, and that the deed was signed voluntarily.
Practitioners should decline requests to give independent solicitor certificates to institutional defendants in these cases. Not only are they voluntary, with no legal requirement to provide them, but the very purpose of a solicitor’s certificate is to allow the defendant to rely on evidence of legal advice that was given to the plaintiff in the event of a later dispute about the settlement. By giving a certificate, the plaintiff’s solicitor is at risk of being sued by the defendant for misleading and deceptive conduct (in addition to a professional negligence claim that might be brought by the plaintiff) if the plaintiff later contends that the settlement is unenforceable or should be set aside, and the matters certified turn out to be arguably incorrect or untrue.
It is not a plaintiff solicitor’s role to make the settlement terms enforceable for the institutional defendant. Their duty is to advise the plaintiff client on the merits of their claim and the nature, effect and implications of any proposed settlement. The plaintiff’s solicitor must also consider and be satisfied about their client’s capacity and understanding, and that they are entering into the settlement freely. Based on the solicitors’ advice, the client can then make an informed decision about whether or not to settle their claim, and if so, on what terms.
If there is a later dispute about the settlement and the plaintiff’s solicitor has provided a solicitor’s certificate, it is likely that the solicitor will be called to give evidence as a witness of fact and cross examined on the matters which are certified in the certificate. This may also give rise to a potential conflict of interest between the plaintiff’s solicitor and their client.
In all the circumstances, plaintiff’s solicitors should avoid giving independent solicitor certificates in relation to settlements for survivors of historical abuse. It only serves to add to the risk for solicitors by giving an independent basis on which they could be sued by the institutional defendant.
