It is embarrassing how far, despite all your efforts to suppress them, your teenage obsessions come back to haunt you. Not a problem if your adolescent self showed any semblance of cool. But nerdy classicist is not exactly the image I want to cultivate.
So it was with shame I found myself holding forth the other day on the Ciceronian roots of the phrase ‘the exception proves the rule’ (or ‘exceptio probat regulam in casibus non exceptis’, if you really want chapter and verse). As lawyers should know, it is a quote from a defence speech at a trial - Lucius Cornelius Balbus had been accused of ‘falsely claiming the rights of a Roman citizen’ no less (though Cicero’s argument clearly worked - he got Balbus off the charge). And by the early 17th Century, the phrase was an established legal maxim: versions can be found in various forms of print as far back as 1617.
So what brought the maxim into my head? Well, the context was our preparation for a consultation on revisions to our scheme rules. And, conversely to what the quote implies, the existence of a rule often also creates the inevitability of an exception. But, contrary to the sense in which the phrase is often used, the fact a rule has an exception doesn’t make the rule right: a decent rule must minimise the number of exceptions.
Nevertheless, however well you draw the rule, there will always be exceptions. So with our scheme rules, because complainants are human, and sometimes life happens, there will always be cases which fall outside them where the wider interests of fairness require that an exception should be made. That’s where ombudsman discretion is required. But if we are exercising discretion too often, that means that the rule itself may be flawed. So our rules say that discretion should only be in ‘exceptional circumstances’.
One of the tools we are using to assess how our rules will need to be tweaked (we’re going out to consultation soon to ask how the rules should look, now we’ve been up and running for a while) is an examination of when and how we have had to exercise our discretion. On our own analysis, we have realised that many of the instances where we do end up exercising our discretion centre on issues to do with our time limits. Take these examples:
Delays and dismay
Mr V’s mother had taken a turn for the worst following a long spell of dementia. Sadly, her mental health meant Mr V needed to obtain a Power of Attorney on her behalf - he wanted to fulfil her wishes and protect the family assets. Following a recommendation from a friend, Mr V contacted a local law firm and instructed it to oversee the process for him. Unfortunately, the firm didn’t turn out to be as good as his friend had suggested.
First, it failed to check the Power of Attorney application properly and this was returned by the Office of the Public Guardian on two separate occasions, causing significant delays. Second, once the application had gone through, the firm was asked to transfer Mr V’s parents’ home under his possession but, again, there were delays and it took over 20 months to complete. The final straw came when the invoice from the firm came to around £3,000 more than it had estimated when Mr V first enquired. The firm hadn’t kept him informed of any additional costs through this process.
Mr V complained to us after unsuccessfully taking his complaint about the delays and the cost through the firm’s complaints process. Given the various delays, many of the issues Mr V had raised were more than two years old and, consequently, out of our jurisdiction. Our rules say that you need to come to the ombudsman within a year of finding out about a problem.
However, his complaint regarding the final bill was within our timeframes - that had occurred within the last year. But it was complicated - some of the cost related to the delays; the law firm had had to do more work and spend more time on the matter, as it hadn’t gone to plan and this had a knock-on effect on the costs. Sometimes it is hard to distinguish different parts of a complaint, and this is why we’ve always been so keen to advocate taking a rounded view of complaints rather than dividing them into separate aspects. So what happened to Mr V and his mum? We used our discretion - an ombudsman agreed that we could take on the full complaint and, following an investigation, the firm agreed to our recommendation that it reduce the bill by £3,000 and pay Mr V £200 compensation. For us, the question is whether we could have come to a fair and reasonable outcome if we’d stuck exactly to the rules as they are written.
A matter of time
Mrs S’s marriage had reached the end of the road and she wanted out. So she filed for divorce early in 2010 - before the legal ombudsman had been created - and employed a solicitor to help her. Unhappy with the service her solicitor was providing, largely due to him losing various important documents, Mrs S went to the Legal Complaints Service, which advised her to wait until she was no longer instructing the lawyer before complaining, as this was how their process operated.
A year later, the divorce was finalised and Mrs S was no longer using the services of the lawyer. She lodged a formal complaint with the firm which fiercely denied any wrongdoing. She then came to the legal ombudsman to seek help with her complaint. We initially turned down the case since she had been aware of the poor service for longer than 12 months. Our scheme rules state that a complaint must be brought to us within a year of the issue arising - or when a person knows there is a problem. However, Mrs S sent us her correspondence from the now defunct LCS, which showed she had raised her complaint at the time but had been advised to wait. We decided to accept her complaint based on this information.
And, following a legal ombudsman decision, Mrs S received £100 compensation for poor service and a written apology. Is this case exceptional, as our exception to the rule requires? Our jurisdiction calls on the ombudsman to be fair and reasonable. We took on this case because it was fair to do so. But we want to have a debate when we look again at the rules on how the timeframes and the exceptional test work together, because, as Mrs S’s case tells us, in some circumstances applying the letter of the law (or rule in this case) can be difficult.
A long time coming
Mr H’s mother sadly passed away at the grand old age of 83, leaving behind a picturesque country cottage and a small amount of savings, which were to be shared between Mr H and his sister (his father had passed away years before). Mr H subsequently instructed an online firm to administer the estate. The firm seemed very friendly and, importantly for Mr H, affordable, quoting fees of around £3,000 to £5,000 plus VAT. It also advised this would be a relatively quick job, taking about six to 12 months to complete. Mr H was happy with this quote and left them to get on with it.
Roll on two years and the probate process had only just completed, despite numerous complaints from Mr H directly to the firm. He reminded it about the original estimation of how long the work would take - to no avail. Adding insult to injury, when the final bill came, the fees had increased to more than £11,000 plus VAT. The firm said this was due to a change in its pricing structure. Mr H came to us and told us that he felt he’d been misled both in terms of fees and timescales - and that the firm had failed to give an adequate response as to why the fees and timescales were so different from the original quote. He also told us that he had not been made aware of any such changes despite coming into contact with the firm many times.
He brought his complaint to the legal ombudsman, but much of what he was complaining about had occurred more than 12 months ago. In particular, it transpired that the firm had been sending regular invoices for different aspects of the service, so Mr H knew that it was charging more than originally agreed prior to receiving the final bill.
We grappled with whether or not to take on this case. The final invoice was received by Mr H within the 12-month timeframe and it, like the case of Mr V, related to the delays he had been experiencing - and had been so pre-occupied complaining about. Mr H also told us that he didn’t feel he could complain about costs until the process had completed, as he wasn’t sure how the delays were impacting on the whole transaction. Again, we chose to exercise our discretion so we could look at this complaint as a whole, as it seemed strange to try to chop it up into component parts. But was this right?
Following our investigation, it was agreed by both parties that the bill would be reduced by £2,500 - an acknowledgement that the firm had told Mr H along the way about the increased charges, but also acknowledging that the delays were unexplained and did not represent good service as Mr H didn’t know what was happening to his mother’s estate.
It’s worth pointing out that in most of the cases where our time limits are tested in this way, we see no good reason to extend them. All too often, the complainant has no good reason for not having complained within the time limits set down. But the frequency with which we are having to exercise our discretion does require us to look closely again at how we are framing the rules. And knowing that other ombudsman schemes, such as the Financial Services Ombudsman, have far fewer problems in this area (which is surely connected to the far longer time limits than our 12 month cut-off), we are inclined to suggest revisiting this question when we go out again for consultation on our rules in March.
It’s not that I’m unhappy sticking my neck out from time to time. Ombudsman schemes are not quite the same as the courts; we have far more freedom to do what we consider is right. But as Cicero knew two millennia ago, it is a bad rule which has too many exceptions.
Adam Sampson is chief ombudsman