There are often instances where issues raised within a client complaint about the level of service provided could be treated either as a cause of action in negligence or as a complaint to the Legal Ombudsman (LeO).
Section 137(5) Legal Services Act 2007 infers that the LeO has the power to deal with such a complaint. However, complaints under the LeO scheme are intended to be dealt with “quickly and with minimal formality” (section 113(1) Legal Services Act 2007). The LeO may dismiss a complaint where the LeO feels that it would better be dealt with by a court (scheme rule 5.7(g)).
1. The LeO’s approach.
The LeO’s role is not to decide whether there has been negligence because that is a decision that only a court can make. Instead, the LeO will determine the complaint and direct any remedy by reference to what is, in the opinion of the individual ombudsman assigned to the case, “fair and reasonable in all the circumstances of the case” (section 137(1) Legal Services Act 2007), taking into account:
- What decision a court might make;
- The [SRA’s] rules of conduct at the time of the act/omission; and
- What the [LeO] considers to have been good practice at the time of the act/omission.
If a complainant accepts the LeO’s final decision, it becomes binding. Therefore, if the LeO makes a decision on a complaint where negligence is alleged and the complainant accepts it, the complainant will be barred from bringing any subsequent claim in negligence.
What if legal proceedings are already underway when a complaint is referred to the LeO?
Depending on the stage of the proceedings, the LeO may:
- ask for the proceedings to be stayed so that LeO may investigate;
- dismiss the complaint, if the court is going to consider the same issues; or
- suspend its investigation until the court proceedings have been finalised.
The individual ombudsman assigned to the case will advise the parties of the action proposed to be taken.
What about first-tier complaints?
Clients sometimes use the word “negligent” in their complaint letters to let their solicitors know they are dissatisfied. In such circumstances, the LeO expects the solicitors to be pragmatic and consider, notwithstanding the word “negligent”, whether the complaint is really about service rather than negligence. In a client’s complaint letter, the use of the word “negligent” does not mean that the client intends to pursue a professional negligence action. The client is more likely to go to the LeO.
Even if solicitors cannot deal with a complaint under their internal process because they are following advice from their insurers, there are steps that they can take to ensure that the client’s complaint has been acknowledged and that the client knows what approach is being taken. These may include:
- Clarifying with the client whether they intend to make a professional negligence claim and, if so, whether they intend to issue a pre-action protocol letter or to bring the complaint to the LeO.
- When the client’s complaint has been referred to an insurer, acknowledging receipt of the complaint, explaining to the client how it is being dealt and indicating why the solicitors have taken this approach.
The client should also be given the timescale for a response (or informed if no timescale can be given) and told of their right to refer the complaint to the LeO after eight weeks have passed.
The eight-week time limit applies even if a complaint involves allegations of professional negligence and the solicitors’ insurers have not yet issued a response. Solicitors should be aware that if the LeO later accepts a complaint, the solicitors will not be given another opportunity to deal with it under their internal process.
The involvement of insurers does not negate the solicitors’ responsibility to cooperate with the LeO’s investigation. The LeO believes that, where insurers are involved, it is worthwhile the solicitors contacting the LeO, so that the LeO may agree on a way forward.
Complaint Management Solutions
The Strategic Partner Complaint Management Service provides firms with an effective outsourcing solution that enables complaints to be addressed quickly, with impartiality, and resolved in the most effective manner.
Using an outsourced solution for complaint management still keeps the firm in control, but also delivers an independent perspective that can assist in the more effective resolution of complaints and avoid them escalating to the Legal Ombudsman or the SRA.
Our complaint managers understand law firms and the services they offer and will quickly get to the core issues and guide and advise the firm on the most effective remedy.
We will advise and guide the firm on how to resolve the complaint without causing further escalation and what action the firm should take if needed. We will work in tandem with the firm, ensuring the firm is protected at all times and taking action that is both justified and proportionate.
The Complaint Management Service is designed to provide firms with an expert solution that operates impartially and independently, but always in the best interests of the firm and its clients. Our service covers the initial intimation of a complaint, the investigation and liaison with the client through to the final resolution, including:
- Implementing a complaint policy, including guidance to staff on action to take when receiving a complaint and reporting requirements
- Maintenance of a complaint register
- Management of the complaint register
- Handling and management of complaints, either directly from the client or via the Legal Ombudsman
- Training provided to staff on complaint avoidance
- Training provided to managers on complaint management
- Reporting on complaints as part of the firm’s compliance structure
Our Complaint Management Service provides firms with an alternative solution to the need to respond to, manage and control complaints internally, freeing up the Complaints Partner whilst still maintaining control, and ensures there is an impartial approach that minimises impact on the firm.