Ombudsman's casebook

A monthly column of examples from the files of the Legal Services Ombudsman, Ann AbrahamQuality countsThe Office for the Supervision of Solicitors (OSS) carries out what it describes as 'routine quality checks' of files to ensure that its systems and procedures are running smoothly.

However, it appears that these quality checks are not as 'routine' as they ought to be.

So far this year, 28% of the ombudsman's criticisms of poor complaints-handling at the OSS resulted from the OSS belated recognition of its own service failures.It is also clear that those failures were only brought to light when the complainant referred the matter to the ombudsman and she called for the file - as the following cases show.Local difficultiesMr B was involved in a long running dispute with his next door neighbour, Mr C, over the siting of a car park.

The parties eventually agreed to settle their differences and a consent order was made by the court.

Unfortunately, the row continued to simmer between the neighbours and so Mr B instructed his solicitor to revive the proceedings, with a view to having Mr C committed to prison.Mr B then became dissatisfied with the efforts of his solicitor and made a number of complaints to the OSS in March 1998.

He said that the solicitor had allowed Mr C too much time to comply with the order; and that he had ignored Mr B's instructions and had handed over the conduct of the case, first to a member of staff and then to a solicitor agent.

Twelve months later, after prompting by Mr B, the OSS appointed a local conciliation officer (LCO) to assist in clarifying the complaint - but unfortunately, the LCO failed to deal with most of the central issues.

The OSS eventually took up the investigation again but it was July 2000 - almost two years after Mr B had first complained to the OSS - before it wrote to him to say that the solicitor's service had been adequate.Mr B complained to the ombudsman who decided that the main source of Mr B's dissatisfaction arose out of the exercise of the solicitor's professional judgement.

The OSS was unable to challenge that and neither was she.

She was also satisfied that it was in order for a solicitor to delegate the conduct of a file to a legal executive and to instruct an agent to attend court, provided that the client was informed in advance - as Mr B had been in this case.However, the ombudsman was dissatisfied with the various shortcomings in the OSS investigation, in particular the delay in allocating the complaint to a caseworker, the inadequate LCO's report and the further delays towards the end of the investigation.

While the OSS eventually acknowledged its failings and paid the complainant 150 compensation, it only did so after Mr B complained to the ombudsman - and it was some three months after it had already closed its file.

The ombudsman decided that the compensation award was reasonable, but she was critical of the OSS belated file review.Off the boilMr and Mrs K were sued by the purchasers of their house over the poor state of the central heating boiler.

The purchasers were represented by Mr L, a solicitor.

Mr K complained to the OSS in July 1999 that an affidavit deposed by the solicitor contained false and misleading evidence and that he had continued to act as advocate knowing that his evidence was hotly contested.

Twelve months later, following many telephone calls and letters from Mr K, the OSS allocated the complaint to a caseworker.

The OSS investigation then got under way and in October 2000 it told Mr K that the solicitor was not in breach of the conduct rules.

As to the affidavit issue, the OSS said there was conflicting evidence regarding its content and therefore, it was unable to conclude that the solicitor had deliberately attempted to mislead the court.With regard to Mr L's continuing role as advocate, the OSS noted that the solicitor had acted on the advice of the professional ethics department of the Law Society and concluded that he was not in breach of the conduct rules.After agreeing to accept Mr K's application 'out of time', the ombudsman reviewed the handling of Mr K's complaint and concluded that the OSS decisions had been entirely reasonable.

However, she was critical of the OSS failure to address its own shortcomings - namely delay - in a timely manner.

Once again, the 'routine quality check' took place after the ombudsman had requested the file - some six months after it had been closed by the OSS.

On review, the OSS was sufficiently concerned about its own performance to award the complainant 150 compensation for delay.Redress all roundThe Law Society will soon appoint a lay commissioner who will oversee its much heralded consumer redress scheme.

One of the commissioner's main functions will be to carry out quality audits of OSS casework to make sure that complaints regarding solicitors are being investigated to the high standard expected of a model regulator.

It is to be hoped that the commissioner will introduce more effective monitoring of quality - so that everyone who experiences poor service by the OSS receives adequate redress - and not just those who complain to the ombudsman.