I am delighted to be writing the first of what will be a monthly column in which I talk about complaints, complaints handling, what we are seeing at the Legal Ombudsman, the way that we work, and how we approach matters that are referred to us.
The Legal Ombudsman receive around 7,000 complaints every year from customers wanting to complain about their legal services provider, and we investigate and determine those complaints in order to find whether the provider has provided a reasonable service in relation to the complaints raised, and if not direct a remedy which, insofar as it is possible to do so, puts the customer back in the position we would have been in had the service been reasonable.
Our investigations are conducted and concluded based on the evidence and comments provided by the parties and concluded on a balance of probabilities test – that is, what is more likely than not to have happened.
Sometimes, though, in order to determine a complaint we have to speculate what might or might not have happened, and what I want to share is our approach when it comes to speculation.
An example of this is as follows. Mrs Smith chose to sell her home in the suburbs and move to the countryside. She found a beautiful little cottage with a decent amount of land for her to live quietly and peacefully. After she moves in she finds a right of way runs through her back garden which is used by ramblers on a regular basis. Mrs Smith then raised a complaint about the service she received from her conveyancing solicitors.
When you speak to Mrs Smith, she tells you she would not have bought the cottage had she known of the right of way running through her garden.
Is it reasonable for the Legal Ombudsman to speculate and decide whether she would have bought the cottage, or not? Of course it is. It is possible that we will need some additional information to help us make this decision, which we would obtain through asking questions and seeking evidence.
For example, it may be that Mrs Smith was the chairperson of the local rambling club and chose to move to the countryside to spend more time doing her hobby. In this case, we could reasonably conclude that Mrs Smith probably would have gone ahead with the purchase if that was the case given the regular ramblers are likely to cause her a modest level of upset, if any.
However, it may equally be the case that Mrs Smith chose to move after being the victim of a violent burglary in the suburbs and wanted the safety and security of living in the countryside. She may have since moved away from the cottage and in with family members because the ramblers in her garden were causing her too much stress. In that situation we could confidently conclude that, had the firm told Mrs Smith about the ramblers’ right of way through her garden, she probably would not have gone ahead with the purchase.
As an ombudsman, I have a wide discretion to make decisions and the reason for this is to allow us to deliver justice. Justice is not us simply agreeing with the complainant or the service provider, but considering the comments of the parties, weighing up the evidence and explaining our views about the standard of service, whether it was reasonable or not and whether a remedy is due.
The outcome of Mrs Smith’s investigation and the remedy that I would direct if I determined that the firm had failed to advise Mrs Smith about the right of way would depend on the information I received from her and the service provider about this.
We speculate on things throughout our lives and working at the Legal Ombudsman is no different. Ideally we would always receive all the evidence we need to make a decision on the level of service and the detriment, if any, caused by a service failing by a service provider, but unfortunately this isn’t always possible. Our test is always what is more likely than not to have happened, and sometimes we have to speculate to determine what this is.
Jason Chapman, Ombudsman at LeO
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