Ombudsman's casebook

Our regular column of examples from the files of the Legal Services Ombudsman

Counting the full cost of IPS

When the Office for the Supervision of Solicitors (OSS) makes a finding of inadequate professional service, there is a range of remedies available to it.

It can direct the solicitors to remit some or all of their fees or direct the solicitors to carry out additional work at their own expense.

The OSS can also direct compensation for distress, inconvenience and/or loss.

In the following recent cases, the Legal Services Ombudsman held that the OSS had taken a somewhat narrow view of 'loss'.

Specifically, that when a complainant feels compelled to change solicitors because of poor service, then the OSS should consider whether the initial costs of consulting a new solicitor ought to be met by the old firm.

Picking up the pieces - and the bill

Mr B was injured in an accident at work.

He instructed a solicitor to sue his employer but, in due course, Mr B made a complaint to the OSS about the service he had received from the solicitor.

Following an investigation, the complaint was put to an adjudicator for a decision.

He decided that the solicitors' service had been inadequate in that they had failed to give a costs risk analysis, had not given full information about their complaints procedure and had not dealt with the complaint properly under Law Society practice rule 15, had disclosed a medical report without authority and had not told the complainant about a change of fee-earner.

As a result, the adjudicator awarded Mr B compensation of 350.

That decision was confirmed on appeal.

The ombudsman reviewed the OSS's handling and eventual decisions.

He agreed that 350 was adequate compensation for the inconvenience and anxiety caused by the solicitors' poor service.

However, the ombudsman was concerned that the OSS did not attempt to quantify the loss suffered by Mr B.

In particular, the sum of 500 which was the cost of the complainant's new solicitors familiarising themselves with the case.

He said that had the solicitors been prepared to deal properly with the complaint in the first place under practice rule 15, there might have been no need for Mr B to change firms.

The ombudsman recommended that the OSS reconsider this aspect of the complaint.

Loss of confidence

Mr N instructed solicitors, L & Co, about an employment dispute.

Subsequently, the solicitors told him that his case would fail.

Unhappy with this news, Mr N went to another firm for advice on what to do next - at a cost of 1,600.

He then made a complaint to the OSS about L & Co.

Following an investigation, an adjudicator decided that the solicitors' service to Mr N had been inadequate - specifically that they had caused unreasonable delay in his case, failed to advise him when the file was transferred between successive fee-earners, failed to send the file to Mr N's new solicitors, and delayed responding to a complaint.

The adjudicator directed L & Co to pay compensation of 1,000 but declined to reimburse the legal costs that Mr N had claimed.

Appealing against the decision, Mr N claimed that the legal costs of 1,600 were caused directly by L & Co's poor service.

The appeal was heard and the committee decided to allow the appeal in part, increasing the compensation to 1,500.

However, the committee decided that the legal costs did not merit a further payment.

The ombudsman reviewed the OSS's handling of Mr N's complaint.

He noted that the complainant took the view that L & Co's service was seriously inadequate - a view which was subsequently shared by the adjudicator and the committee - and this sense of unease had resulted in him losing confidence in the solicitors' ability to provide sound advice.

As a direct result, Mr N considered he was forced to get legal advice elsewhere and that cost would not have been incurred but for the solicitors' poor service.

The ombudsman decided that, in looking at Mr N's appeal, the committee had not given adequate reasons for declining to entertain Mr N's claim for legal costs and recommended that the OSS reconsider that aspect of the complaint.