The First of April might appear a foolish day to write about the Legal Ombudsman Scheme. It is not new, but it is steadily gaining in popularity. Since 2007, the scheme has been administered by the Office for Legal Complaints. This free scheme is being expanded – up to £50,000 could now be awarded by way of ‘compensation’ – and therefore could see greater numbers turn to it in this brave new world post-Jackson.
It is surprising, however, that the scheme has not been utilised even more thus far. Despite our high regard for Scandinavian justice not all Ombudsmen set-ups have worked well in this country and many remain critical of this particular incarnation. It was expected that there would be an exponential increase in claims against lawyers but this has simply not happened. Then again, many of the predicted changes to legal services in general have not occurred – yet.
Maybe the law retains an element of mystery so people don’t feel in a position to complain. Maybe the law intimidates those who are tempted to complain, especially whilst they still in need of their lawyer. Or maybe it is just that the scheme for complaints itself needed refining. There was little harmony between the courts system and the Ombudsman scheme, time limits for claims being an obvious example. This has now been changed as part of the re-vamping of this scheme on 1st February 2013. The time limit is now a more standard 6 years from material act or omission and three years from the date the complainant should have known that there were grounds for complaint. The other change is that the Ombudsman will now potentially accept complaints from prospective clients who could reasonably have expected to receive a service, or who were unreasonably offered a service that they did not want.
The Financial Services model has seen greater putative success according to some. Naturally, few lawyers themselves would regard increased complaints in the future through the Legal Ombudsman scheme as ‘success’. There are currently c.80,000 people who contact the Legal Ombudsman each year. Nor do many lawyers like the idea that the Ombudsman has decided that it is appropriate to name and shame repeat offenders or where there has been a formal resolution through the scheme.
Further, it must be remembered that the test for the Ombudsman is not the same as in negligence: it is one of what the Ombudsman considers to be “fair and reasonable” in all the circumstances. Clearly the attempt was to make the system user-friendly for clients (usually ex-clients) as part of the overall access to justice aim. Yet the scheme is far from user-friendly for many lawyers, given that it still entails unique and hence unfamiliar procedural rules concerning challenges, evidence, oral hearings (which are rare), determinations and appeals or judicial reviews.
With the increased jurisdiction/power granted in 2013, it looks as though more lawyers will, at some stage, need to familiarise themselves with these different rules under the Legal Ombudsman scheme. If they do, they might find that the scheme is not stacked against them in the way many have suggested. Informal resolutions will remain the preferred choice when it comes to disputes with lawyers. Nevertheless, if the matter does go to the Legal Ombudsman, lawyers should not be alarmed, although they would be more than just April Fools if they were not fully familiar with a system that looks here to stay.