Ombudsmans casebook

A monthly column of examples from the files of the Legal Services OmbudsmanThe importance of transparent and sound decision-making by the Office for the Supervision of Solicitors (OSS) has been the subject of a number of reports issued by the ombudsman.

Here are two recent examples of the system going wrong, leaving both the complainant and the ombudsman with a sense of unease about the OSSs decisions.Secret serviceBetween 1986 and 1991 Ms G was involved in ancillary relief proceedings in the aftermath of her divorce.

She was represented by a solicitor, paid for by legal aid.

Some time after the case ended five years in fact Ms G was shocked to learn of the full impact of the legal aid statutory charge and its likely effect on her financial health.

She complained to the OSS.

The OSS decided that the solicitors service fell short of the mark, because of a lack of information about the workings of the statutory charge and delays in getting their bill assessed by the court.

It awarded Ms G 500 compensation for distress.

However, it did not agree with Ms Gs complaints that she had never had a bill, or was told that she could go to court to comment on it.

The first instance decision was endorsed on appeal, but Ms G was convinced that the OSS had got it wrong and she complained to the ombudsman.There were aspects of the OSSs handling of this complaint that concerned the ombudsman.

Because the solicitors file had gone missing, the OSS had struggled to reach conclusions on Ms Gs complaint, but it had adopted two completely different and apparently arbitrary strategies to fill the evidential void.

On the lack of statutory charge information and late bill, Ms G was believed, but on the other aspects of the complaint the solicitors were believed.

No reasons were given for these approaches, either at first instance or on appeal.The ombudsman thought that the OSSs reasoning was highly suspect but, because there was virtually nothing to explain its thinking, it was impossible for her to decide whether the OSS had acted reasonably.

She recommended that the OSS reconsider the complaint, and that this time it should let everyone else in on the secret.Fatal flawLike Ms G, Mr P had become embroiled in proceedings to sort out his post-divorce finances.

Mr P was also legally aided, was confused about the statutory charge, did not see the solicitors bill and was denied an opportunity to tell the court what he thought about the bill.The saga ran for some ten years, and resulted in Mr P complaining to the OSS.It agreed that the solicitors had not been as forthcoming on costs and legal aid information as they should have been and awarded compensation of 400 for distress.On loss, the OSS decided that nothing could be laid at the door of the solicitors, because Mr P would have pursued matters to the bitter end anyway even if he had known that the statutory charge would take a bite out of the fruits of his litigation.

This stance was confirmed by the OSS on appeal.

Mr P complained to the ombudsman that the solicitors had got off lightly.The ombudsman decided that, generally, the OSSs decision certainly as far as the distress award was concerned was reasonable.

However, she found that the OSSs reasoning on loss was flawed.In the preamble to its decision, the OSS said it was possible that Mr P would have considered an early settlement of the case, if he had appreciated that the statutory charge would apply; but, given the age of the matter, it was unable to reach a conclusion so long after the event.It then proceeded to do just that, and decided that a fully informed Mr P would have pursued the litigation at all costs.

Needless to say, the ombudsman referred the complaint back to the OSS to remove the suspicion in her mind that the OSSs decision was not supported by sound reasoning.