Ombudsman's casebook

A monthly column of examples from the Legal Services Ombudsman casebook

It is in the nature of things that the ombudsman tends to see complaints only when dissatisfaction between the parties has already escalated.

It is therefore refreshing when solicitors make a genuinely constructive effort to resolve matters to the client's satisfaction.

Conveying a good impressionF was in dispute with the local authority over a strip of land which had been overlooked in his house purchase many years previously.

He instructed new solicitors to assist him in sorting out the mess.

Unfortunately, this latest experience of the legal profession in action was scarcely more inspiring, since he found himself unable to establish from the firm how matters were proceeding.

In due course he complained to the Office for the Supervision of Solicitors (OSS).

The solicitors told the OSS that they had given instructions for the disputed land to be purchased from the local authority.

F confirmed that that was the action which he wanted, and the OSS therefore decided to close its investigation of F's complaints until the conveyance had been completed.

The ombudsman considered that action to be reasonable - as, indeed, did F.

However, he remained concerned about the fact that his recent correspondence with the firm had still not been answered.

Further enquiries were therefore made of the solicitors.

It turned out that their firm's managing partner had already taken the view that it had not handled the case particularly well.

As a gesture of goodwill, the firm waived its costs and purchased the disputed land at its own cost.

Not surprisingly, when he received the title documents, F announced himself to be very pleased with the outcome of his complaint.

Barking up the right treeOf course, a remedial gesture need not always be so generous: indeed, an apology may be just as effective, and costs nothing at all.

Even when a firm is without fault, a conciliatory approach may avoid the significant aggravation which an overly-defensive or dismissive response can cause.

T had received a letter from solicitors making a claim on behalf of their client, who had been the victim of a road traffic accident in the car park of a greyhound racing association.

Concerned and perplexed - understandably, since he had not been involved and knew nothing of the incident - T immediately wrote back to request further details as to why he was being hounded.

Some time later, when he had still not received any reply from the firm, he made a complaint to the OSS.

Since T was not the solicitors' client, the OSS could only dealt with the matter as one of potential misconduct.

They closed their file on the grounds that the solicitors had been entitled to follow their own client's instructions - even if they had been barking up the wrong tree - and because it was not misconduct for the firm to have declined to reply to T's letters.

Like many complainants, T was not satisfied with the OSS's failure to take action in a situation which had been caused through no fault of his own, and he complained to the ombudsman.

He alleged that the OSS had been unwilling to pursue the firm, who had adopted its client's position without seeking any corroboration.

The ombudsman accepted that the OSS's approach had been technically correct.

While it was of no consolation to T, from the perspective of professional misconduct there had been nothing in the solicitors' letter which was deceitful or offensive; the firm had been under no obligation to determine the merits of its client's claim in advance of court proceedings, and it was not obliged to respond to T's letter.

However, the ombudsman recognised that T's aim was not to see the solicitors disciplined for misconduct, but to obtain a reply to his letter.

Unfortunately, they had not been notified of the complaint until the OSS had already closed its file.

Once contacted, they confirmed to the ombudsman that they had written to T with an explanation of their involvement and an apology for their failure to respond to his letter.

T was grateful for the gesture.

While there had been no professional obligation on the firm, their constructive approach had mitigated his distress - and therefore his disgruntlement with the legal profession.