Ombudsman's casebook

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

What's it all for?

In cases of poor service, one of the main aims of the complaints-handling process is simply to provide complainants with redress.

However, this can sometimes become a problem in itself, as the following cases demonstrate.

Too little

Mr and Mrs C complained that Mr D had acted in a situation where his interests had conflicted with theirs, with the result that they had suffered substantial losses.

In due course, the Office for the Supervision of Solicitors (OSS) upheld Mr and Mrs C's complaint, and referred Mr D's conduct to the Solicitors Disciplinary Tribunal.

It also concluded (on the same facts) that Mr D had provided an inadequate service, and directed that Mr and Mrs C should be paid 2,000 in compensation.

The ombudsman noted that, at one stage, Mr D had offered to conciliate Mr and Mrs C's complaints by paying them 7,000.

However, the OSS had not relayed that offer to them.

The ombudsman thought that, if they had known about it, Mr and Mrs C would have been foolish not to accept it - not least because 7,000 is 2,000 more than the maximum the OSS can award.

As it was, the complainants had effectively ended up short-changed to the tune of 5,000.

Therefore, the ombudsman recommended that the OSS pay that amount in compensation for the financial loss that Mr and Mrs C could be presumed to have suffered.

Too late

Ms E acted for Ms F's late mother, Ms G, in a court action against her (Ms G's) son.

Ms F complained that Ms E's services had been inadequate to the point where it was possible to say that, in some respects, she had crossed the boundary into actual misconduct.

After a lengthy investigation, the OSS upheld all of Ms F's complaints and referred Ms E's conduct to the Solicitors Disciplinary Tribunal.

However, it did not award any compensation either to Ms F or to her late mother's estate - which led Ms F to complain to the ombudsman.

The ombudsman accepted that the OSS had had no power to award compensation in the circumstances of Ms F's case.

However, she also noted that it had not made this clear until very late in the day, and took the view that this would have caused Ms F a measure of real distress.

Accordingly, the ombudsman recommended that the OSS pay her 500 in compensation.

Too bad

H & I acted for Ms J's severely disabled son, K, in a clinical negligence action arising from the incident at birth that had caused his disability.

Ms J complained that H & I had failed to act in his interests.

After a lengthy investigation the OSS upheld the gist of her complaints and directed H & I not only to pay K 2,000 in compensation but also to reduce its bill by 3,000 (nearly 15%).

The ombudsman's understanding is that, as a matter of policy, the OSS will not award the maximum of 5,000 in compensation unless the circumstances are exceptional.

From the papers, it was clear to the ombudsman that Ms J's son's case could be regarded as wholly exceptional in terms of the seriousness of the shortcomings the OSS had identified - it was impossible to imagine a more vulnerable client than K, who was described by a barrister in the case as 'gravely disabled...

[having] no form of communication and...

no capacity for intellectual thought'.

Moreover, the OSS quoted, with approval, the words of a senior judge who had described H & I's services as having been characterised by 'scandalous lethargy'.

In the circumstances, the ombudsman found it hard to understand why the financial awards that the OSS had made had been so restrained.

Therefore, she recommended that it reconsider.