Ombudsman predicts more cases as compensation limit rises

I would imagien that the number of awards over £25k were as rare as breeding pairs of unicorns, if this premise is correct why do they need to raise the limit?

I would imagine that the Ombudsman hasn't the faintest idea of the difference between the contractual and the tortious calculation of what is a recoverable loss, and this is vital.

In effect the Ombudsman is shifting insured risk into potentially uninsured risk without the means of effectively raising arguments about the lack of causation etc, sadly in my experience arguing with the LeO is like complaining about the setting of the sun.

In terms of a six year limitation, I can see that this is a valid stance for matters where there has been a liquidated loss, but utterly vapid for some of the drivel that flows from complainants via the LeO.

So we're to be liable to prospective clients? So, a bloke came into my office the other day unannounced with no appointment and wanted to see me about "drawing up a letter for a contract for a mate he's lending money to". My receptionist said as a sole practitioner who doesn't really do commercial work, we probably couldn't help but as I was engaged with a client he was welcome to take a card and ring up and speak to me or make an appointment if I could help or maybe point him in the right direction if we couldn't. He asked when he should ring back and my assistant told him to try his luck and call later that day. To which he said , "well I've just come in an tried my luck and I can't see her so that's pointless. RIDICULOUS" and proceeded to slam the door and leave muddy foot prints on the carpet. Could he, as a prospective client make a complaint?
We choose who to retain as a client. Once retained, we are responsible for our client and we're bound by the code of conduct and owe a duty of care which if breached could amount to negligence for which I am insured. I can, If I think really hard accept that there is room for someone to complain about level of service (although as a consumer I have no such redress against dodgy butchers, builders and roofers - all of whom owe me a duty of care) but surely those complaints can't warrant penalties of £50,000 and if that's awarded against us how do we pay? If a client has a grievance worth that much, surely that's a matter for my insurers.
My opinion was never sought.
Will the law society not rest until they've finished us off completely. No referrals, fixed fee PI work, creation of CQS (which now means I might lose lender panel status when I was fine before but my law society which purports to support me and has charged me considerably more for this year heralds CQS as a success - success for who????) , don't get me started on legal aid .....what's left for us....??
Who do we complain to about financial loss?????????

The "complete silence" from the Society may be the result of the Gazette's policy of rushing to publish very short news articles. The Gazette is an arm of the Society, so there is no reason why it cannot get a comment from someone senior at the Society, which can then be included in a more comprehensive article.

The essence of the Rule of Law is that no one is above the law: government authority is only legitimately exercised in accordance with written, publicly diclosed laws, adopted and enforced by established procedures. The principle safegaurds against arbitrary government, and is hostile to both dictatorship and anarchy.

Now our profession is subject to arbitrary process that is not bound by the laws of contract or tort, and may be subject to orders of compensation where we might have a defence in law. Whether or not there is a finding against us, we shall be subject to a financial penalty by way of contribution towards the cost of investigation. For many High Street practitioners that cost will exceed any profit on the work undertaken.

The Legal Ombudsman is empire building, egged on by the Legal Service Board. Both appear to have a lack of understanding of the nature of the work and clients that some of our profession represent. Clients are often distressed when they consult our profession. Frequently they are disatisfied with the outcome; often with just cause. Whether that is a failure on the clients part, or that of their representative, or on the judiciary or legal system, will often become irrelevant.

I have real doubts that the Ombudsman's increased powers are constitutional and accord with the rule of law. I very much hope that the Law Society will financialy support a deserving challenge to the Ombudsman in order to allow members of our profession to be subject to the same legal rules as the rest of society.

It is totally clear and has been for years that The Law Society is almost definately NOT working for it's members, particularly it's small members, but rather for the opposition. Why do we continue to put up with it?

The answer is possibly for ALL small firms to renounce membership of the Law Society at the same time and continue to operate as 'Lawyers' wherever possible. There would be problems with lender panel membership (if any small firms are still actually on lenders panels) and possibly 'breaking the law' by undertaking legal work without being law society members, insurance etc. I think the chaos so caused would be very short lived, however, and maybe Mr Hudson would be forced to get off the fence and start earning his £400K pa salary for our benefit!!

Clould the SPG possibly make a stand and take an email poll on this and publish the result?

Enough is enough.

I see I managed to post my comments twice and with tpyos.It has been a long week! Apologies to all.

I am happy to combine with others to fight. The present regime offends against the principles of natural justice. We need to lobby the Law Society and government, use the courts, and consider some forms of direct action.

Perhaps someone can advise me about action against a solicitor (former churchwarden) who professed to know about Land Registry rules and accepted instructions to correct our Deeds only to resign when the matter was referred to the Chancery Division of the High Court. He admits he made mistakes and will pay the Court Fees but last July changed his mind and withdrew his offer. The SRA are very sorry for us the LeO say we are out of time?!
Is there such a person as a genuine, honest solicitor in the UK?

I write as a former IPS Adjudicator for the old LCS. I have been retired for exactly five years and I have several reactions to this news and more particularly to the comments on it.

First, I wonder if the Law Society now regrets letting self-regulation of complaints go? For all I am sure those commenting on the above news will disagree, there can be no doubt that we had developed an efficient complaints system in which the Adjudicators were all highly qualified solicitors with many years of experience in the profession. We therefore knew the problems faced by solicitors whilst understanding the frequently justified complaints raised by the clients. When the government decided to demolish all that work and transfer the powers to a non-legal body, the Law Society eventually supported them. That had to happen because the Law Society had not treated the whole business of complaints seriously and the government of the day had lost patience.

My second reaction is plus ça change. Sadly I see that many members of the profession still do not appear to have learned how to handle complaints and talk of "penalties" and "fines" when referring to compensation. Voldemorts (sic) troubled younger brother even seems to think the SRA has something to do with this. What hope is there for the profession? I am truly saddened to see that lawyers cannot understand the concept of compensation. The payments which I directed were to compensate the client for poor service, not to penalise the solicitor. Often I had a lot of sympathy for the lawyer, dealing with a difficult client, but the lawyer had just handled the whole thing so badly that the client was even more upset by the level of service and therefore more difficult to deal with.

When you get a complaint use it as a tool to improve your service to your clients. Examine how you could have handled the situation more effectively. Don't litigate with your clients when it isn't what is required; it will upset you as much as your client and attitudes on both sides will become entrenched so that there is no way out.

There were always cases where people felt they were in the position of clients but legally were not. For example most residuary beneficiaries were not clients but, where the solicitor was the sole executor, to whom could they turn for help where the estate was being handled badly? That was a situation which needed rectification and I understand that has been done. I would hope that the new powers do not go as far as A Nonn suggests.

I doubt you will find that the new compensation limit will mean that compensation awards will increase dramatically. I gather that the Ombudsman cannot direct a separate refund of solicitors' costs (as I could) and it has to be remembered therefore that some of the compensation will take that into account. The old LCS was working with the Insurers to pick up awards of compensation which reflected quantifiable loss. I wonder if that has continued under the new regime?

You didn't know how well off you were, did you?

I read the post above from Gerry Field.

Gerry - you say this.....

.....................
I think that the things really have now gone too far from a regulatory point of view.

There are tree main issues:-

1) the ability of the Legal Ombudsman to make judgements on issues of negligence, without our having the ability to raise legal issues or appeal
....................

Just a few questions.

Who says you cannot raise legal issues if you choose to do so? Assuming that is right however, what type of legal points do you envisage would or should come into play when defending a LeO complaint about negligence against a solicitor? I would be interested in your answer.

As for appeals, my understanding is a case is looked at by a caseworker and then passed to an ombudsman if one party appeals the decision. What further right of appeal do you think you should have?

I have noted so many complaints about the ineptitude of the The Law Society in this and many other forums. If that is truly the case, what then is the entire profession still waiting for? why not form an alternative interest group through which you can fight issues and policies that threatens your profession-either by way of shop closures, boycotting the courts, taking legal actions etc.
And who knows such a group might be strong enough to challenge the Law society on the justifications for receiving dues or fees from lawyers instead of the new group!

My point is that our courts have, over a period of hundreds of years ,devised a system for trying legal issues. It enables both parties to present their cases in an orderly manner, and for the action to be decided upon the facts, within the context of a corpus of settled law. In an action for negligence issues such as the extent and levels of duties of care would be decided in the light of statute and case law. If liability were established then the award of damages would be looked at in the light of causation, consequential loss and so forth.

Leo can now make decisions on what amount to allegations of negligence. So far as I can see he can do so without applying case law, and indeed without having to give anything amounting to a reasoned and argued judgement. This has the effect of making it difficult to challenge any decision. Morevover the award he makes is on the basis of a rather subjective assessment of the injury to the complainant.

Supposing for example a complainant said that his property had been flooded due to melting snow, and that his solicitor should have advised him better about the drainage of the surrounding land. Leo could quite easily decide that the solicitor did have liability in that case without basing his decision upon any precedent. You would have had no opportunity to argue the point of law before him, and no opportunity to appeal his decision.

The upshsot is that a functionary of the state is making decisions which may have a severe financial impact without having the necessity to base them upon the precedent of the common law.

Any appeal from the decision of the office of Leo, as I understand it, can only be by Judicial Review.

I am not a litigator, and stand to be corrected on the above. It seems to me however that we now have a situation where the state can effecitvely levy financial penalties on solicitors without due process. This seems to me to raise issues of human rights, and erodes the Rule of Law.

I see no reason at all for continuing the practice of mandatory payments by the legal profession to the Law Society.

They don't regulate any more - that's the SRA/Legal Ombudsman's role.

They are simply a trade union.

In this era of change and free market competition - and consumers not clients - why should we be forced into a closed shop? Our competitors aren't.

Let us join the Law Society or not (or join other unions) as we wish.

Someone of limited means could quite reasonably expect that there would be a low cost service available on the High Street to deal with a divorce. If all the local firms tell him that Legal Aid is not available, and he'll have to pay privately, then does he have grounds for a complaint if he feels that the charges are too high?

In today's Gazette, the ombudsman is complaining that he can't deal with complaints about poor service etc. from the unregulated legal sector. The great and the good really do need to get it into their heads, that all this opening up of professional work to all and sundry so that they can compete with the stuffy, overpriced regulated professionals, automatically means that the unscrupulous and incompetent will be able to prey on the public. It's an inevitable consequence of a free for all.

Stuart W, yes indeed you have a point about the previous complaints handling regime.

Can you remember the amount that was paid out to complainants to reflect the poor service delivered by the OSS and its bast*rd offspring? If the rumours were correct it was not far short of £1m per year.

The problem with the increase in the compensation limit is, as you say, is that it is fundamentally flawed in that it does not specify whether it is based on contract or tort; there is no opportunity to serve what is in effect a counter schedule of loss or dispute points raised.

I wholly accept that as a profession we should be compensating clients for poor service (I've been on the receiving end myself) the question is whether the system is proper, fair, equitable and just.

Most of us conclude that it is not.

Considering a complaint where the losses are £50k requires a proper consideration of law and evidence in a fair and open process.

The award of compensation for distress & etc is not something that is recognised in law (unless my memory is befuddled by a dose of man flu) but is awarded by the LeO, as the cap is lifted so the potential for this head of 'loss' to increase.

While I accept that in tort one takes one's 'victim' as one finds him, we have with the award of compensation for 'distress' to be maid where the actually failing is a gnats crotchet away from a counsel of perfection but as the client is an invertebrate they're soooo upset it's time for the old cheque book to deliver the healing power of money.

Then there's the idea of one free go and then you pay. I'm waiting for the complaint from a client (claimant) who was told that all the evidence pointed to them as being responsible for the RTC and consequently they can't have compensation. The client is a bully, who made unreasonable demands on the fee earner (daily updates, visiting the scene as if a police report and independent witnesses aren't enough) before finally making a formal complaint when we said 'no reasonable prospects'.

When (not if) they go to the LeO and the complaint is dismissed is it really right that we should pay for the next unpleasant client who complains to the LeO regardless as to whether their complaint has any merits or not?