How the Legal Ombudsman resolves complaints

The fair and reasonable test

The guidance explains that an ombudsman must decide what he or she believes is “fair and reasonable in all the circumstances of the case” when sorting out a complaint.

What is fair and reasonable?

The “fair and reasonable” test is based on the ombudsman’s opinion, so it is difficult to have a single definition because each complaint is decided on its specific circumstances. However, there are some common factors which may influence the ombudsman’s decision on what is fair and reasonable. The guidance expands on these, which are the:

• characteristics of the customer;
• expertise of the lawyer/firm;
• promises, assurances and service level agreements; and
• reliance on advice of others.

Fair and reasonable is not the highest standard possible and depends on the situation.

The same delay can be reasonable in some situations and not in others. A delay of two days may be unreasonable in a conveyancing transaction but not necessarily in a complex ligation case that has been ongoing for two years.

A firm can do things technically right but not have behaved fairly and reasonably in the circumstances of a case. A firm may have provided full cost information with complete and regular cost updates. However, it can have unreasonably carried on work if it ignored clear signs that the client was in financial difficulties and would not be able to pay the final bill.

Characteristics of the customer

An example is given of a firm unreasonably sending letters using technical language despite having been told that the client had learning difficulties and required the firm to use plain language.

A firm’s knowledge and experience of each client is relevant in determining if its conduct was fair and reasonable. A firm may be expected to provide more detailed information and spend more time explaining what is happening on their case to a first-time buyer than would be expected with a sophisticated client, purchasing their tenth property.

Expertise of the lawyer/firm

Lawyers are generally expected to have the appropriate skills and knowledge to be able to properly advise a client about their case. However, where a lawyer or firm holds themselves out as experts or specialists within their field, the LeO will hold them to a higher standard of care.

Promises, assurances and service level agreements

To prevent complaints about poor communication, it is important for firms to agree a level of service with their clients at the outset, such as how soon phonecalls, emails and letters will receive a response.

Generally, the LeO expects firms to do what they said they would within the timescales they said they would. However, in some cases, even where service levels have been met, this may be unreasonable if, for example, it was clear from the nature of the correspondence that a response was reasonably required and expected sooner.

Reliance on advice of others

The guidance provides an example of where a firm was expected to consider whether the advice given by a barrister was correct in light of their own specialist skill, knowledge and experience in this area, and whether it was best for that particular client.

Consideration of good practice at the time

The ombudsman will take into account what is considered good practice at the time a complaint arose. The LeO encourages service providers to share their knowledge of any case law, rules or published best practice with the complaint investigator. The ombudsman is not bound by them but will consider them.

And finally…

It may be helpful to read this LeO guide alongside the LeO’s other publication about their approach to putting things right.

Additional helpful information for both members of the public and legal firms can be found on the Legal Ombudsman website.

The Legal Ombudsman’s (LeO) role is to sort out complaints made by people about the service provided by their legal services provider. The LeO is independent of members of the public and legal services providers.