Ombudsman's casebook

A monthly column of examples from the files of the Legal Services Ombudsman Brave new worldThe main plank of the Law Society's 'new approach to regulation' is the consumer redress scheme, aimed at providing 'swift and proportionate remedies for complainants'.The 'new approach' will, apparently, lead to an expansion in the types of cases which the Office for the Supervision of Solicitors (OSS) is prepared to handle - so complainants can look forward to most complaints involving minor negligence being dealt with by the OSS, rather than being told to look to the courts for redress.

Complainants can also expect the deployment of a full range of alternative dispute resolution skills, including conciliation and mediation to bring about an early resolution of a dispute.As the following recent cases show, such a 'new approach' would be a radical departure from the experience some complainants currently have of the OSS in practice.

Courting disasterMr B instructed a solicitor to sue a college for an unpaid invoice.

Proceedings were promptly issued and soon after a default judgment was entered against the defendant.

Following the issue of a warrant of execution, Mr B contacted the solicitor to ask how the case was progressing and learnt that the defendant had applied to have the judgment set aside.

The solicitor said he was waiting to receive details of the application from the county court.

Unfortunately, the promised details were not sent to Mr B and some weeks later he was dismayed to discovered that the court had heard the defendant's application and set judgment aside.

The solicitor had instructed an agent to attend the hearing on Mr B's behalf resulting in a cost to him of some 135.

Subsequently, the defendant paid the outstanding invoice following the involvement of another solicitor instructed by Mr B.Mr B complained to the OSS that the solicitor had failed to obtain or follow instructions and had failed to keep him informed of progress or reply to requests for information.

Following a lengthy investigation by the OSS, it concluded that Mr B would need to take independent legal advice about a possible claim in negligence against the solicitors.

The OSS added that, in any event, there was no point in the solicitor telling Mr B about the hearing, since it would have been of no interest to him and he could not have made any difference to the outcome by attending.Dissatisfied with the OSS's decision, Mr B complained to the ombudsman who decided that, far from raising issues of potential negligence, there were several issues relating to adequacy of professional service which the OSS could and should have investigated.

Of particular concern to the ombudsman was the conclusion reached by the OSS about the failure by the solicitor to give Mr B advance warning of the hearing.

In the ombudsman's view, Mr B had been deprived of the opportunity to attend court with the necessary evidence and knowledge to defeat the defendant's application.

Instead, what Mr B ended up with was a poorly briefed solicitor agent and no judgment.

The ombudsman recommended that the OSS reconsider the complaint and at the same time pay Mr B compensation of 250 for the 19-month delay in allocating the matter to a caseworker.Trust in me Mr C was the beneficiary of a trust and he complained to the OSS in July 1998 that a solicitor trustee owed him some money for which the solicitor had failed to account.

The OSS replied that complaints about a trustee's administration of a trust were matters for a court and it was unable to get involved.Mr C contacted the OSS again in March 1999 with more concerns about the solicitor's involvement with the trust - particularly the deduction of costs from trust monies.

The OSS replied in the same terms, suggesting that Mr C seek independent legal advice.

Following two more approaches to the OSS, Mr C made another complaint to it in June 2001 about the way the solicitor was carrying out his trustee role.

Once again, the OSS told Mr C that it could do nothing to assist him.Following receipt of Mr C's complaint, the ombudsman considered the OSS's responses to his complaints.

While the ombudsman accepted that disputes about trusts often concern legal issues best resolved by a court, she considered that, in this case, the OSS could have done more to assist Mr C.As a minimum, it could have contacted the solicitor to discuss Mr C's concerns.

Such an approach might have prevented the escalation of a problem that had first arisen three years previously.

The ombudsman recommended that the OSS reconsider Mr C's complaint.