Ombudsman's casebook

A monthly column of examples from the files of the Legal Services OmbudsmanOne of the most important of the ombudsman's remedies under the Courts and Legal Services Act 1990 is the power to recommend that the Office for the Supervision of Solicitors (OSS) reconsider a complaint.

She will do so when she believes that, for whatever reason, the OSS' has carried out a flawed reinvestigation - by failing to identify the complainant's dissatisfaction accurately, reaching a perverse decision, or by providing an inappropriate remedy.

Dealing with a poor investigation in this way allows the OSS to respond properly to the particular case, and provides it with the feedback to improve its procedures generally.

In this respect, the results of recent reconsideration cases have been encouraging.

In her annual report issued in June 2000, the ombudsman reported that, of the 236 cases which she had recommended that the OSS reconsider, more than 60% had resulted in the complaint being upheld in full or in part, and nearly 60% of those cases had provided some financial benefit to the complainant.

Into the breachMr S had instructed a firm of solicitors in relation to a prospective negligence action against an insurance company.

He believed that the solicitors had mismanaged the claim, and instructed another firm to pursue negligence proceedings.

The action eventually fizzled out, and Mr S complained to the OSS about various aspects of the service which he had received from the second firm.

The OSS introduced Mr S to a member of its negligence panel scheme, and on his advice some matters were referred to the Solicitors Indemnity Fund.

He also identified issues of potential misconduct.

However, the OSS found no evidence of misconduct, save for a breach of principle 21.07 of the Guide to the Professional Conduct of Solicitors, 1999, eighth edition, which it dismissed as a technicality.

Mr S was not happy with the assistance he had received, and approached the ombudsman.

She was concerned by the OSS decision to hold fire on the grounds that the breach was purely technical, since there was evidence that the firm had misled the court in an affidavit, and she therefore recommended that it consider that issue again.

After a further investigation the OSS decided that, far from being merely technical, the breach in fact warranted a severe reprimand.

While Mr S remained disappointed with the action which the OSS had been able to take on his behalf, the ombudsman was satisfied that it had properly addressed the issue which had been referred back to it and had taken reasonable measures to deal with it.Out of the leaseBetween 1990 and 1994 solicitors had acted for Ms R and her partner in respect of their commercial and residential tenancy.

Following the breakdown of their relationship, the firm ceased acting, but had later been instructed by Ms R's former partner.

She made repeated requests for a copy of the tenancy agreement, which was not forthcoming, and she duly complained to the Solicitors Complaints Bureau and then the OSS.The solicitors claimed that they had already provided a copy to solicitors acting for Ms R, and were not prepared to forward another copy for various reasons, including the fact that Ms R intended to use it in litigation against her former partner.

The OSS took the view that the document was held as the result of a joint retainer, but were unable to persuade the firm to release a copy to Ms R.

After some delay, the OSS obtained the firm's files, and discovered that the firm had previously forwarded only a 1994 redraft, rather than the 1990 agreement itself.

With the firm's consent, the OSS provided Ms R with a copy from the file.Unsurprisingly, Ms R was not impressed with the solicitors' reluctance to provide her with the documents to which she was entitled.

She now argued that she should be compensated for the unnecessary trouble to which she had been put.

At this point, the OSS unwisely queried whether Ms R was indeed a client of the firm falling within its compensatory powers.

They referred her to the ombudsman.

Considering the facts of the case, the ombudsman decided that the OSS had made heavy weather of what was a straightforward complaint.

It had not dealt with the solicitors' original prevarication with sufficient robustness, nor had it accepted the consequences of its own conclusion that, as a joint tenant, Mrs R had been a client of the firm.

On examining the solicitors' files, the ombudsman also discovered anomalies in two versions of the tenancy agreement.

Concerned that the case had not been concluded satisfactorily, she recommended that the OSS reconsider.In the resulting reinvestigation, the OSS decided that the solicitors had indeed delayed in forwarding the agreement, but were not responsible for the anomalies; it awarded compensation of 500.

Ms R was unhappy with this amount, but the ombudsman pointed out in her second investigation that the OSS had complied with her recommendation and had reached a reasonable decision.