Ombudsmans casebook

A monthly column of examples from the files of the Legal Services Ombudsman

False dawn?As part of its reform agenda, the Law Society has...A monthly column of examples from the files of the Legal Services Ombudsman

False dawn?As part of its reform agenda, the Law Society has heralded the dawn of a new and improved complaints redress scheme for dissatisfied clients.

While the detail has yet to be announced, the proposed new redress scheme has been widely trailed as one of the foundations of the Law Societys aspiration to become a model regulator.

The ombudsman is reserving judgement on that.

But it is already clear that, if the new redress scheme is to live up to the star billing it has so far been given, it will be necessary for the Law Society to do some urgent thinking about the interface between inadequate service complaints on the one hand, and negligence claims on the other, in the post Solicitors Indemnity Fund (SIF) era.When changes to the system of professional indemnity insurance for solicitors were being discussed, the ombudsman asked the Law Society to take care that the facilities offered by the SIF to claimants in person did not disappear under any new arrangements.

The central claims-handling machinery of the SIF, its willingness to deal directly with claimants in person, together with its award-winning mediation scheme, offered claimants a single point of contact, a coherent and consistent response and at least the prospect of a fair settlement for a fair claim.

Sadly, it seems that all of this has disappeared overnight with the new arrangements.

The SIF has now been replaced by a range of different insurance companies and overcoming the blocking tactics of some solicitors to get a line of communication to their insurers is proving something of a challenge to all but the most determined as the following recent cases show.Silence is not always goldenMrs S and her husband separated.

On her solicitors advice, a separation agreement was drawn up in which Mrs S agreed to accept a lump sum, but to call it quits on any other financial claims against her spouse.

Subsequently, Mrs S tried to have the settlement re-opened in the divorce proceedings, but was told by her new solicitor that the die was cast and the arrangement couldnt be changed.

Mrs S complained to the Office for the Supervision of Solicitors (OSS) that she was badly advised to sign up to the agreement and wanted compensation for the money she had lost.

The OSS decided that the complaint rested on whether the solicitors advice was right, which was a question for the courts, rather than the OSS.

They noted that the SIF had already been contacted and confirmed that claiming through this route was the right approach although it transpired that the SIF couldnt do anything because the new insurance arrangements had come in post September 2000.

The SIF told Mrs S to write to her old solicitors for details of their insurers, but after two letters, her plea for even this basic information went unheeded.Return to senderMr W purchased a leasehold property.

Seven years later, he came to sell up, but the buyers solicitor said that the wording of the lease did not square with the lease plan.

A deed of rectification was insisted on.

Mr W complained to the OSS that his solicitors work was shoddy and had nearly cost him the sale and, in any event, he had been put to a lot of expense to sort out the problem.The OSS decided that this was a complex legal problem that should be decided by a court and not the office and the ombudsman agreed when the complaint reached her.

However, she went on to suggest that Mr W should contact the solicitors and ask for details of their insurers.

Mr W did just that, but was disappointed when the solicitors replied not with the information wanted, but with a flat rebuttal of any possible claim.One landscape one system of redressIt seems that while a more client-focused redress scheme is being designed and developed in one corner of the Law Society, the architects of the new professional indemnity insurance arrangements are busy building barricades to client satisfaction in another.

What is needed is some rather more joined-up thinking.Complaints and claims are part of the same landscape of client dissatisfaction and cannot be considered in isolation from each other.

As the Law Society develops its ideas on service redress, it needs to view that landscape from a more holistic perspective.

If the new professional indemnity arrangements are to offer so much less than the SIF in terms of access to redress for dissatisfied clients, the new service redress scheme will need to be pretty good to fill the gap.

We could start by reviewing the 5,000 compensation limit currently in operation at the OSS.