Ombudsman's casebook

A monthly column of examples from the Legal Services Ombudsman casebook

As part of the Office for the Supervision of Solicitors (OSS) strategy to deal with more dissatisfied clients at source, the operation of an effective in-house complaints-handling procedure is now an implied term of the solicitor's retainer.

A firm should at least be able to explain its views to the client, and ideally reach a reasonable resolution.

Those aims are not served when over-defensive solicitors try to hoodwink an unhappy client.

Daylight 'fobbery'M had bought a house but his solicitors failed to send him documents comprising the title deeds.

His own enquiries suggested that the relevant papers had not been lodged with the Land Registry.

He eventually complained to the OSS, which referred the case back to the firm to deal with internally.

Six weeks later the firm's complaints-handling partner triumphantly announced that M had now received his deeds.

He offered reasons to explain what he calculated as being 10 weeks' delay: the Inland Revenue had needed 30 days to stamp the deeds, and the Land Registry another two to three months to process the application.

The figures added up and the OSS gratefully accepted the explanation.Unfortunately for the firm, M was less complacent.

After all, he had waited 16 - not ten - weeks for his deeds, and he decided to undertake a little research of his own.

It was with some interest that he learned that the Inland Revenue and the Land Registry both claimed to turn around applications within two weeks.

The Land Registry sent him a letter confirming that it had in fact processed this case in six days.

M viewed it as significant that the deeds had appeared some three weeks after he had complained to the firm.

M approached the Ombudsman, and pointed out that the OSS had merely accepted the firm's explanation without seeking further evidence.

The Ombudsman was satisfied that the solicitors had indeed only made the relevant applications after receiving notice of M's complaint to the OSS - and after they had already told him that the delay was due to the Inland Revenue and the Land Registry.

M was careful to make the point that, had the firm bothered to let him know what was happening, he would not have complained.Instead of the complaints-handling partner making a genuine attempt to resolve what had turned out to be legitimate concerns, M was left with the feeling that he had been 'fobbed off'.

The Ombudsman agreed, and forwarded the solicitors' file to the OSS recommending that they reconsider the complaint.

A missed opportunityH's solicitors were less reticent about accepting that his case had been mishandled, but no more successful in resolving the ensuing complaint.

In the early 1990s he had started proceedings against a company which had fitted some new windows to his house, and judgment by default was entered in his favour in May 1994.It was a satisfactory result - until the firm attempted to enforce judgment.

A few months later H telephoned the solicitors to enquire about progress, only to learn that the individual dealing with the case had left the firm.

Over the next 27 months he was repeatedly assured that a replacement solicitor was taking steps to recover the money.

In August 1996 the firm gave him some bad news - not only had the replacement too now left the firm, but it had also been discovered that in fact no action had ever been taken to recover the money.

In October 1996, H complained to the OSS about the replacement solicitor's delay and deceit.

The OSS investigation was subject to a measure of delay itself, but eventually arranged for H to meet the firm's complaints-handling partner in June 1997.

H reported what had transpired: the partner had concluded that the replacement solicitor was personally responsible and that no blame attached to the firm.

The OSS was understandably reluctant to accept this repudiation of liability, and tried to convince the firm that ultimately it was accountable for the way in which H's case had been handled.

The partner would not agree and invoked H's alleged acceptance of the firm's argument.Before the debate could be resolved, however, the OSS decided that their file should be closed temporarily while the solicitors took steps to enforce the judgment.

More than two years later H returned to the OSS with a request that his original complaint be investigated.

He explained that the firm had recently told him of another defection from its ranks - that of the complaints-handling partner - and that it was no longer possible to enforce the judgment.

Unfortunately, the OSS decided to keep the file closed on the unjustified grounds that there was nothing further that it could do.Protracted delays and an unresolved complaint that brought little credit to either the solicitors or the OSS.

However, one of the most regrettable features of the case was that, instead of seizing upon the window of opportunity in August 1996 or June 1997 provided by their internal complaints-handling procedure, and thereby salvaging a little credit in the eyes of the client, the solicitors elected instead to adopt a defensive posture which they were never going to be able to justify.The Ombudsman concluded that the whole case still needed to be resolved, and accordingly recommended that the OSS reconsider.