Dealing with the Legal Ombudsman
Dealing with Legal Ombudsman Issues
Established in October 2010, the Legal Ombudsman (LeO) deals with complaints about lawyers from members of the public, very small businesses, charities, clubs and trusts. The Lawyers Defence Group can assist you and your firm with all issues involving the LeO – from assistance in producing your own complaints handling policies and practices to advice and assistance in dealing with a complaint made through the LeO.
What does the LeO consider?
Unlike previous bodies, the LeO can consider complaints about legal services provided by all regulated legal practitioners registered in England and Wales – not just solicitors. Their remit is to consider the level of customer service the lawyer provided – not whether the lawyer was negligent or whether the advice given was legally or factually correct. They determine whether the level of service provided was reasonable in all the circumstances of the case and, if not, what should be done to put things right.
The LeO is not primarily concerned with issues of conduct, except in so far as these overlap with issues of poor service. If a complaint is about both conduct and poor service, then the LeO will look at the poor service issue and refer the conduct issue to the appropriate regulator, e.g. the SRA or Bar Standards Board, so that they can deal with it. If the complaint affects only the lawyer’s conduct then the LeO will usually refer that matter direct to the appropriate regulator.
How does the LeO make a decision?
The LeO aims to be a quick and minimally formal mechanism for the resolution of complaints. It is not hidebound by complex procedural rules, and works within relatively short time-frames. Once a complaint is received (and assuming that it has been through your in-house procedure first) the LeO will conduct a preliminary investigation into the matter and attempt to resolve the matter by agreement between the parties. If it is not possible to resolve the matter in this way, then an investigator will write a recommendation report. The recommendation report is, in essence, a provisional decision which summarises the investigation and the conclusions that the investigator has reached. If the recommendation report is accepted by both parties then the complaint is considered to have been informally resolved and the case is closed.
However, if one or both parties does not accept the investigator’s findings, then the matter is referred to an ombudsman for a final decision (or “determination”) to be made. Unlike an informal resolution, only the complainant has to agree to it in order for it to become final and binding.
Once a decision is made and accepted by the complainant, then any remedy set out in it is enforceable through the Courts. It is also worth noting that once accepted, an ombudsman’s decision bars either party from starting or carrying on legal proceedings about the same subject matter.
In certain exceptional circumstances, for example where there is a legal issue to be resolved, the LeO can refer the complaint to a Court.
Appealing a decision
Strictly speaking there is no process by which an ombudsman’s decision can be appealed. However, as with other public bodies, decisions made by the LeO may be judicially reviewed. The time-scale for bringing a judicial review is very short, and so it is important to get early advice if you feel that the ombudsman has reached (or is likely to reach) is legally flawed.
Determining the complaint
In determining a complaint, the LeO will have reference to what is, in his or her opinion, a fair and reasonable outcome in all the circumstances. If the conclusion is that the lawyer was at fault, then that determination may contain one or more of the following directions to the lawyer:
- to apologise;
- to pay compensation of a specified amount for loss suffered;
- to pay interest on that compensation from a specified time;
- to pay compensation of a specified amount for inconvenience/distress caused;
- to ensure (and pay for) putting right any specified error, omission or other deficiency;
- to take (and pay for) any specified action in the interests of the complainant;
- to pay a specified amount for costs the complainant incurred in pursuing the complaint;
- to limit fees to a specified amount.
It is worth bearing in mind that the limit of the total value that can be awarded by the determination of a complaint in respect of:
- compensation for loss suffered;
- compensation for inconvenience/distress caused;
- the reasonable cost of putting right any error, omission or other deficiency; and
- the reasonable cost of any specified action in the interests of the complainant.
is a fairly substantial £50,000. It is worth, therefore, treating complaints to the LeO seriously – especially if you think that there may have been grounds for the complaint.
It should further be borne in mind that the limit does not apply to:
- interest on specified compensation for loss suffered;
- a specified amount for costs the complainant incurred in pursuing the complaint;
- interest on fees to be refunded,
and that, except in certain circumstances, a case fee of £400 is payable by the business/partnership or individual authorised person for every potentially chargeable complaint when it is closed.
Unlike its predecessor organisations, the LeO has some substantial enforcement powers that it is able to exercise both during an investigation and once a decision has been made and accepted. The exercise of these powers may pose a substantial threat to your business and to you individually, and so early advice is essential.
During an investigation
As well as your professional obligation to cooperate with the LeO, there is a power in the Legal Services Act 2007 to enable the LeO to requisition documents and information by means of a statutory notice. Failure to comply with the notice may be certified to the High Court as contempt and the lawyer concerned may face a substantial fine or imprisonment.
After a decision has been made and accepted
Once an ombudsman’s decision had been made and accepted by a complainant it is final and binding, and any remedy set out in it may be enforced through the Courts.
In the case of financial remedies, the enforcement process is much the same as enforcing a tribunal award: the decision is endorsed by the Court so that it becomes an Order, and thereafter all of the usual enforcement mechanisms are engaged. In plain terms, bailiffs may be sent to your office if you don’t pay up promptly.
In the case of non-financial remedies, the enforcement process is likely to involve obtaining an Order in the form mandatory injunction from the Court, endorsed with a penal notice. Once served, a failure to comply with the Order will be dealt with as contempt and, again, a substantial fine and / or imprisonment could follow.
The Lawyers Defence Group can assist you and your firm with all aspects of the complaints and LeO process.
If you have received notification of a complaint, or believe that you are likely to be the subject of a complaint, to the LeO, or you simply want assistance in putting in place systems and processes designed to avoid and/or deal with complaints then you should contact us as soon as possible.
You can contact the Lawyers Defence Group by:
- telephoning during office hours – 0333 888 4040,
- requesting a call-back using the call-back request form to the right,
- telephoning our out of hours number (but please only in an emergency – for example when someone has been arrested or you believe that your firm might be about to be intervened in) 07952 861 868,
- emailing us at email@example.com, or
- writing to us at one of the addresses at the bottom of this web page.