Articles
Is it grossly negligent to leave a client's documents in a taxi? Or is it merely negligent? This was the question that faced our lawyers last Thursday. Now this might seem like a silly question, but we regularly argue with our clients about whether the bank will be liable in situations where we have been negligent or only where we have been grossly negligent.
Of course it's pretty unusual for us to be negligent at all, but now and again someone accidentally sends a letter to the wrong address or leaves a client's file in a taxi.
Ordinarily, this wouldn't amount to anything except that in this case the next passenger in this taxi picked up the folder and phoned the name on the top of the first page. This name was the client's, and not ours, so our client had the unpleasant experience of hearing from a stranger that his file had been left in a taxi. nyone in his position would have reacted in exactly the manner that he did. He phoned me.
"Alan, what the hell are you guys doing I've just been handed your file on my company, by a complete stranger who found it in a taxi. I can't believe this."
"What a relief," I blurted out. Probably not the most appropriate thing to say, but the team had just spent the last 20 minutes trying to locate the file through a series of unproductive phone calls to disinterested taxi operators. The file having been found was good news, although it obviously would have been preferable for us to have found it rather than the client.
"A relief? This is gross, gross negligence on your part, Alan. I must say I'm astounded by your attitude."
"Yes, of course, I'm just glad that there's no harm done," I say, getting back into character. "I can absolutely understand your annoyance, and I can assure you that nothing like this has ever happened before and that it will never happen again." And so on.
The absolute truth is that this sort of thing does happen from time to time, but most of the time the client doesn't find out. I have heard of bankers and lawyers leaving documents on planes, in restaurants, at nightclubs. There are the inadvertent e-mails to the wrong Mr Smith, the overheard conversations at the bar, and the guy looking over your shoulder on the plane, something that is substantially exacerbated by the switch to economy class.
It is almost unheard of though, for these types of slip-ups to actually lead to any damage. But that doesn't make the clients feel any better.
I've never heard of anyone being sued over this sort of thing, but just out of curiosity I call our lawyers to ask whether or not leaving documents in a taxi is grossly negligent. Because of what our contracts say, we would be liable if it were grossly negligent, but not liable if it were merely negligent.
"Well, there are a number of arguments for both points of view," says our lawyer Martin, repeating a phrase that I think may well be written on the back of his legal practising certificate: "When you don't know the answer, say that there are competing views."
I say: "Let me put it another way. If ... one of our guys left something in a taxi and we got sued, would we lose?"
"That's very difficult to say. It all depends on the facts of the case and the circumstances."
"So it's very difficult to say whether leaving documents in a taxi is negligent or grossly negligent?"
"Oh, it's almost definitely negligent. But it's not entirely clear whether it's also grossly negligent."
Martin, like many lawyers, is highly skilled in appearing to answer questions, without committing himself to any particular opinion. Getting a yes or no out of him is quite a challenge.
"OK, Martin, let me ask this, just out of curiosity, is there a difference between negligence and gross negligence?"
"Oh yes, absolutely," he says.
So far so good.
"So there are some actions that are negligent, but not grossly negligent?"
"Yes, that would follow." Not quite a yes, but close enough.
"So what would be a good example?"
"Oh well, that is very difficult to say in isolation. It would depend on the circumstances."
And so on. I suppose I could now call my client and tell him that our lawyers don't agree that leaving a folder in a taxi is necessarily grossly negligent, but I don't think that would make him feel any better.
But either way, without Martin's help I can confidently conclude that it is grossly stupid and grossly embarrassing, so it might as well be grossly negligent.
And whatever the outcome of any theoretical litigation might be, I also know for sure that I am going to have to do some grossly tedious grovelling in some grossly expensive restaurants to repair the damage done.
No open-and-shut case about losing a file
Sunday, April 4, 2010
