Ombudsman's casebook

A monthly column of examples from the files of the Legal Services Ombudsman

The ombudsman and binding orders

The Courts and Legal Services Act 1990 (as amended by section 49 of the Access to Justice Act 1999) provides that the ombudsman's primary role is to investigate the way in which the legal professional bodies deal with complaints about lawyers.

The Act also gives the ombudsman the discretion to investigate the original complaint about the lawyer and make a binding order of compensation where poor service causing detriment to a client is found to be the case.

While the power to investigate an original complaint is exercised sparingly, from time to time there are cases where the Office for the Supervision of Solicitors (OSS) has been given ample opportunity by the ombudsman to put things right but does not and the ombudsman looses confidence that matters will ever get back on an even keel.

The following is one such case.

Around the houses

Ms A instructed solicitors to deal with the final stages of her house purchase.

Unfortunately, the relationship broke down and although the purchase completed, the solicitors failed to have the transfer stamped or register the purchase at the Land Registry.

The solicitors also refused to release the deeds to Ms A, until she paid their bill of 250 plus VAT.

Ms A complained to the OSS that the solicitors gave her the impression that they would not charge for their work, that they had failed to give her a costs estimate, had delayed sending their bill and had refused to return her deeds.

The OSS's first attempt at dealing with the complaint was a fairly superficial affair and while it made a decision on a conduct-related allegation, it managed to overlook all of Ms A's complaints of poor service.

The ombudsman recommended that it reconsider those complaints.

Following a second investigation, the OSS decided that the service provided by the solicitors had been inadequate, because they failed to give Ms A client care or costs information when first instructed.

Accordingly, the OSS decided to limit the solicitors' fees to 165 plus VAT and directed that a refund 'should be payable forthwith'.

It also directed the solicitors to register the property at their own expense - subject to receiving Ms A's instructions.

Following a further complaint, the ombudsman decided to extend the investigation to Ms A's original complaint, as well as looking at the OSS's handling, because the OSS had failed to express a view on the late delivery of the solicitors' bill - rendered by the solicitors seven months after completion - despite the fact that it was looking at the complaint for a second time.

The ombudsman also felt that the redress directed for the inadequate client care and costs information was not appropriate.

The initial stages of the ombudsman's investigation were not helped when the two former partners in the firm (which by now had ceased to operate), failed to reply to letters from the ombudsman's office.

The ombudsman decided to exercise her statutory powers under section 25 of the Courts and Legal Services Act 1990 to compel the solicitors to release the information that was crucial to the investigation.

Interestingly, the OSS had also needed to issue its own statutory request for information during its investigation.

Eventually, one of the former partners decided to co-operate with the ombudsman and the investigation was able to go ahead.

The ombudsman found that the OSS's Reconsiderations Committee had forgotten to comment on the solicitors' delay in issuing a bill - in spite of the caseworker's recommendation of a finding of inadequate professional service.

Also, while the committee had directed the solicitors to 'refund' a proportion of the fees paid by Ms A to compensate her for a lack of costs and client care information, it had overlooked the fact that Ms A had not paid the solicitors' bill and so the idea that a refund could be made was something of a non-starter.

Another problem with the committee's directions was that it had decided that the firm should complete the registration of the property but, by then, the firm had ceased to exist and the partners had gone their separate ways.

The ombudsman decided that as a result of the shortcomings in the OSS's handling of Ms A's complaint, she had suffered the inconvenience of having to make a second complaint about the OSS.

Therefore, the ombudsman recommended that the OSS pay Ms A 500 for distress and inconvenience.

As to the service provided by the solicitors, the ombudsman decided that their service had been inadequate because of a lack of client care and costs information.

The ombudsman also decided that Ms A had suffered distress and inconvenience on being told the news that she would have to pay the solicitors when she thought that she would not have to pay anything, as well as the inconvenience of having to chase the solicitors for their bill for several months after completion.

The ombudsman ordered both former partners in the firm, jointly and severally, to pay Ms A 300 for distress and inconvenience.