We need to make Ombudsman scheme fairer
Five years on from the arrival of the 2007 Legal Services Act we are still waiting for the ‘Big Bang’. What has come into existence seems less an entirely new universe, with a primordial cloud of traditional legal service providers accelerating away, transforming into clusters of one-stop-shop commercial enterprise (as predicted by many at the time); instead, what we are seeing is more modest - some newly formed particles, which may or may not herald the beginning of a different future for legal services.
In fact, we have only just seen the first alternative business structures (ABSs) - a key outcome of the act - unveiled by the SRA. And though the announcement featured a high street brand name in the shape of the Co-op, it was interesting to note that the other two firms getting in on it were smaller, more traditional-looking: John Welch & Stammers, operating since 1932, and Lawbridge, which essentially consists of one solicitor and his now shareholding wife.
So I would tend to agree that developments have been to some extent more slow-burning than originally anticipated. Traditional firms, with a long history in law, are still very much part of the legal landscape and, it seems, adapting to it. But if the arrival of ABSs has not been immediately transformative, it is one of the changes to the market which are likely to be very far-reaching. Changes to legal aid and the increasing interest in legal services shown by financial services providers mean there are signs that the way consumers source and pay for law may change profoundly.
My guess is that, in a few years time, law will be offered as part of a multi-disciplinary or bundled service and you will be able to buy law from the same person who lends you money or offers you insurance. In five years we may see businesses offering a one-stop shop for house purchases, doing the estate agency, surveying, mortgage broking and conveyancing - all within one business. And this will inevitably lead to an overlap of financial and legal complaints.
Cause then for suggesting a review of the rules by which the Legal Ombudsman scheme operates. More specifically, cause for looking at time limits and the fact that currently they do not harmonise with either the courts or other ombudsman schemes. This lack of harmonisation will become increasingly problematic as more ABS firms come into being, as it is likely that some will be covered by both the Financial Ombudsman Service and the Legal Ombudsman. With the potential for more complaints, it may be that a one-year limit means people seek redress through the courts too.
From cases coming to the ombudsman, we also know that some people feel unable to complain about their lawyer if they have an ongoing retainer arrangement - either for fear of affecting a legal case the lawyer is handling or because they already have their hands full with the legal case itself. These would not be issues if the time limit were longer.
From the perspective of the legal profession, a big advantage in increasing the time limits is that it should mean less time spent using ombudsman discretion at its expense. The case studies below show how ombudsmen have been required to accept complaints about issues that occurred much longer than 12 months ago. Whether to exercise that discretion is a time-consuming affair, and can leave both consumers and lawyers unclear about what the rules are.
So, in light of the above issues, we are consulting on the possibility of extending the current time limits so that complaints can be accepted up to six years from an event or three years from the knowledge of the event - in which case it would not be necessary to alter the ‘exceptional circumstances’ provision. This was our original proposal when we were first established. At the time, the profession argued that it was going to be difficult for us to be able to investigate complaints which were older than a few years because the evidence would not be available. In practice, this has generally not proved to be a problem, as the following cases show.
Time to apologise
In 2002, Ms A’s solicitor - representing her in a custody battle - breached her confidentiality and shared personal information about her with a third party. However, it was not until many years later, in 2010, that Ms A actually became aware of the issue. Despite being so long ago, Ms A was angry that the misdemeanour could have profoundly affected the outcome of the case. She understandably demanded an explanation and an apology from the firm (rather than any financial compensation).
Following an unsuccessful attempt to resolve the issue with the firm directly, Ms A came to the Legal Ombudsman. The solicitor who had been involved in the breach had left the firm in 2004. Following an investigation by the Legal Ombudsman, the firm and Ms A came to an informal agreement and she received an apology from the firm along with a small financial award for the distress and inconvenience the incident had caused her.
Unfortunate in deed
In 2005 Ms B instructed a firm to assist in the purchase of a house. In 2010, she chased the firm to provide her with share certificates for the property and lease. At this time it became apparent to Ms B that the lease on the property had not been extended as she had previously instructed. Ms B lodged a formal complaint and requested the deeds to her property - she was concerned that her lease might not be in order and that she had not seen the documents.
The firm eventually sent her various copies of the required documents but Ms B was not convinced that they were correct. Our investigator recommended that the firm should pay to have another firm extend the lease, as this hadn’t happened correctly. An ombudsman agreed and Ms B accepted the decision.
In 2011 Mr C was in the process of writing a will. He was looking into any technicalities his children might face should they choose to sell his home once the estate passed to them when he died. After looking into the matter more closely it became apparent that he had never received a completion certificate from the solicitor who had undertaken the conveyance of his home in 2006, some five years earlier.
There had been building work carried out on the property starting circa 1988 and Mr C wanted reassurance that there would not be any issues for his children should they need to sell his house in the future. He complained to the conveyancing firm to find out why there was no completion certificate, which declined to help since it had been so long ago.
Mr C then came to the Legal Ombudsman. Using discretion, an ombudsman agreed we should carry out an investigation. We discovered that completion certificates did not exist when the building work was carried out and so were unnecessary - that is to say they would not be required in a house sale.
The relevant changes in the law only happened circa 1996, so only building work carried out in the last 15 years would require a certificate. Mr C was happy with the explanations and felt confident that the firm had not done anything wrong - despite the poor way they handled his complaint. Of course, there are some cases where the evidence is just not there. When this is the case, we will stop the investigation.
Out of time
In 1999 Mr X instructed a lawyer to oversee divorce proceedings. The lawyer was instructed to ensure that the divorce resulted in a clean break from his ex-wife. Mr X thought that this was the case until more than 10 years later in 2011 when he discovered (while drafting his will) that his ex-wife still maintained an interest in his company. Mr X raised the issue with the law firm, which provided only an acknowledgement of his complaint. He felt this was unsatisfactory and brought the complaint to us.
We began looking into the complaint but it soon became clear that no suitable evidence was available to help make a decision. In fact, the law firm had destroyed Mr X’s file, and Mr X himself had no evidence to bring forward. An ombudsman decided to discontinue the investigation under 5.7 of the scheme rules.
With the exception of the last case study we were able to conduct investigations to resolve the complaint despite the actual event that caused it occurring some years ago (and considerably more than one year before). Operationally, we have to spend considerable time resolving time limit issues in individual cases. This means that, at times, the current rules can be difficult for parties to understand.
Unfortunately, we receive many requests to exercise ombudsman discretion to extend time limits. The current test given in the rules is one of ‘exceptional’ circumstances. This can lead to extensive representations by both parties, and the combination of the one-year time limit with this strict test can result in some complainants being excluded when their complaint seems to have some merit. We need to consider ways of making the complaint-handling process fairer and, hopefully, adjusting our scheme rules will help us to achieve this.
I would encourage lawyers and service providers to read through the draft scheme rules and consultation document and to provide feedback, which we will consider before finalising the new rules later this year.
Adam Sampson is chief ombudsman