Ombudsman's casebook

A monthly column of examples from the files of the Legal Services OmbudsmanA conciliatory approach A key feature of the Law Society's new consumer redress scheme is the increased use of alternative dispute resolution techniques, by which caseworkers at the Office for the Supervision of Solicitors (OSS) 'will make every attempt to mediate between the client and solicitor to bring about an early resolution'.

In such circumstances, offers of settlement by solicitors can be a useful and effective way of dealing with complaints and can also provide a means of salvaging at least some of the goodwill that is lost when a client complains about the service he has received.

However, such settlements must be handled and documented with care so that both the client and the solicitor and the OSS share the same understanding of the complaint-handling outcome.

As the following cases show, the OSS does not always handle these situations with the necessary degree of precision.

A settlement compromisedMr and Mrs G were injured in a motorcycle accident and instructed solicitors to make a personal injury claim against the other driver.

Subsequently, a complaint was made to the OSS about the way the solicitors had dealt with the case.

Mr and Mrs G said the solicitors had terminated their telephone calls, had not returned calls and, at the start of the case, had provided an unsuitable case plan.

The OSS asked the solicitors to try to resolve the complaint locally, in accordance with Law Society practice rule 15, and some progress was made, with the solicitors apologising for delays in returning telephone calls, although they did not accept that other aspects of the complaint were valid.

Unfortunately, Mr and Mrs G then identified further complaints, including a failure to send important evidence to their new solicitors.

The OSS had no option but to launch an investigation.During the next three months, there were exchanges of letters and telephone calls between the solicitors, the OSS and Mr and Mrs G, following which the OSS announced it was closing its file, on the basis that the solicitors had offered, and Mr and Mrs G had accepted, 250 to settle the complaint.

However, this was news to the complainants since the offer had not been put to them and there was still a question mark hanging over the whereabouts of certain evidence, including a video which had not been returned by the solicitors.

Meanwhile, the solicitors wrote to Mr & Mrs G expressing satisfaction that the complaint had been resolved 'with the assistance of the OSS'.

Mr and Mrs G were less impressed with the assistance of the OSS.

They complained to the ombudsman who decided that the OSS's handling of the complaint was unsatisfactory.

The ombudsman could find no evidence that the OSS told the complainants about the solicitors' responses to their complaint.

She also considered that the OSS was wrong in declining to express a view on the solicitors' standard of service on the basis that settlement had been reached - when Mr and Mrs G had not agreed to anything.

The ombudsman recommended that the OSS reconsider the complaint.At cross purposesMr M complained to the OSS about a solicitor whom he had instructed to advise on a financial claim, after the break-up of his marriage.

Mr M said the solicitor had not given him proper costs information, didn't keep him informed about progress, had missed deadlines and that his bill was too much.

Subsequently, the solicitor accepted that some aspects of the service he had provided were inadequate and, with some guidance from the OSS, he agreed to reduce his fees.

The OSS discussed the offer with Mr M that day and he indicated that he was minded to agreed to it.

The OSS then decided that agreement had been reached and closed its file - and refused to reopen it when Mr M came back to them to say that the solicitor had gone back on his word and was now asking for costs over and above what Mr M understood had been agreed.The ombudsman decided that the OSS's handling of the complaint was not satisfactory because , while there was evidence that the solicitor and the OSS understood the terms agreed, the OSS failed to take steps to make sure that Mr M shared its understanding.

In particular, Mr M had not seen the letter from the solicitor which set out the precise details of the agreement.

The ombudsman decided that no useful purpose would be served in asking the OSS to reconsider the complaint at this late stage.

However, she did recommend that the OSS pay Mr M 250 compensation for the distress caused to him by the OSS's failure to ensure that he fully understood the terms of the proposed settlement.A shared understandingThe ombudsman supports the increased use of conciliation to resolve disputes between solicitors and their clients.

But the OSS will only increase dissatisfaction all round if it does not take the time and trouble to ensure that both sides share the same understanding of what has been agreed.