Conduct and service

An unusual twistFailure to give clients full costs information prompts many complaints.

This is particularly so with litigation matters, where clients are frequently not advised fully about the costs implications of developments in their case.

Often realisation dawns too late and the solicitor has to advise the client that if a particular course is followed, there may be implications as far as costs are concerned.

The client then demands to know why he wasn't told that before he embarked on litigation and asserts that had he been warned of the possibilities, he would have thought twice about issuing proceedings in the first place.The question of costs information in litigation is so perilous that practitioners should explore every possible scenario and ensure the client is advised of the costs implications of each before proceedings are issued.However, a novel twist was given to this recently when the Legal Services Ombudsman (LSO) requested the Office for the Supervision of Solicitors to reconsider a complaint it had rejected.The solicitors were acting for a defendant in a case in which the plaintiff was legally aided.

The defendant doubted the veracity of the claim being made, but because the plaintiff's case was supported by his counsel the solicitors did not consider it appropriate to challenge the grant of a certificate.However, when it became clear that the proceedings could not benefit the plaintiff, representations were made to the Legal Aid Board, which then withdrew its support and the case collapsed.The defendant complained to the OSS that had representations been made earlier, the case would have collapsed sooner, saving him costs.

The OSS rejected the complaint on the grounds that such representations would have involved the exercise of the solicitor's professional judgement.The client referred the matter to the LSO, who asked the OSS to reconsider whether, when the plaintiff became legally aided, the defendant ought to have been told he had the right to make representations himself against the plaintiff receiving public funding.

The point was conceded by the solicitors when it was put to them.The moral is that if you are acting for a client in litigation where the opponent is publicly funded, it is an inadequacy of service not to tell your client that he personally has the right to challenge the grant of that funding.l Every case before the compliance and supervision committee is decided on its individual facts.

These case studies are for illustration only and should not be treated as precedents.