Memoranda Submitted by Which? Magazine (LSB 1)

 

INTRODUCTION TO WHICH?

 

Which? is the largest consumer organisation in Europe, with around 700,000 members. Entirely independent and not-for-profit, we are funded through the sale of our Which? range of consumer magazines and books. We are also a provider of legal services through Which? Legal Service, offering consumer advice to subscribers. The service is regulated by the Law Society and the Bar Council.

SUMMARY OF KEY ISSUES FOR WHICH?

 

Independent regulation focused on the needs of consumers (the Legal Services Board, Part 2 of the bill). Which? believes a single, independent oversight regulator will ensure accountability and transparency and help to rebuild consumer confidence in the industry.

 

Regulation of Approved Regulators (Part 4 of the bill). Which? believes that the split of representative and regulatory functions by approved regulators must be clear (the bill uses the rather ambiguous phrase 'so far as reasonably practicable').

 

New business structures to deliver more competition and choice for consumers (Alternative Business Structures, Part 5 of the bill). Which? believes proposals to make the legal services market more competitive will bring significant benefits for consumers, including more choice and higher standards.

 

A new and independent complaints handling body encompassing the whole legal profession (the Office of Legal Complaints, Part 6 of the bill). Which?'s number one priority is the creation of a new independent complaints handling body to which consumers can take their complaints about any lawyer.

 

OVERVIEW

 

The current regulatory system is not delivering for consumers. Too many are suffering from inadequate service and legal advice. Our research shows one in six rate the service they received as poor or very poor1 and in 2005- 06 the Law Society received more than one complaint for every six solicitors practising in England and Wales. Which? thinks consumers deserve better and strongly supports the proposals set out in the Legal Services Bill. The proposed new regulatory structure will improve the quality of legal services for consumers because quality is affected by the way professions are regulated and how they view consumers. In particular, independent, effective complaints handling that can highlight issues, give feedback to regulators on trends and encourage professionals to improve their complaints handling and service levels can only have a beneficial impact on service quality.

 

Our comments on the Bill are based on the key principles of ensuring the new system is independent, accessible, transparent, efficient, straightforward and provides effective redress for consumers. We urge MPs to keep these principles and the consumer focus of the bill in mind when considering the Bill.

WHICH? RESEARCH REVEALS THE PROBLEMS

 

Once in a while we will all need to use a solicitor to help us with legal issues, most commonly buying a home, seeking help for a personal injury claim or getting divorced - all very stressful events. Which? research2 shows that eight in ten people have used a solicitor, but a third don't feel they are getting a good service. Almost a quarter think their solicitor did not listen to their opinion, and almost a third did not feel well informed about how much they would be charged. Sadly for solicitors, this means only financial advisers, estate agents and politicians are trusted less by consumers.

In 20043, we asked people who had had a problem with solicitors to get in touch to tell us about their experiences. Key issues were excessive delays, negligence, making mistakes, poor communication, including not being informed of delays, and many bills coming in much higher than the original estimate with no prior warning - as one person told us:

 

'His estimate...was 4,000 to 5,000. In the event the fees were in excess of 30,000...after two years we could no longer afford to fund the case.'

 

Mrs P told us in 2004: 'We were drawn into litigation that we couldn't afford, and would not have started if we had been honestly and fully informed.'

 

The professional rules for solicitors in England and Wales state they should give an estimate at he outset, but more than half the people in our survey said they received no cost estimate at all, and only about a quarter said they had one in writing.

 

Worse still, more than 40 per cent of our respondents said, despite being unhappy enough to write to us, they hadn't made an official complaint, mainly thinking it would be a waste of time, too stressful or too much hassle. This is reflected by further research we did in November 2005, which showed that consumers think complaining is more trouble than it's worth, it's unlikely anything will be done or they don't know how or to whom to complain4. We believe customer care needs to be embedded in this industry. Until solicitors start treating their paying customers with respect as the people who pay their fees, consumers will feel frustrated with their treatment.

 

LEGAL SERVICES BOARD (PART 2 OF THE BILL)

 

Which? believes a single, independent oversight regulator will ensure accountability and transparency and help to rebuild consumer confidence in the industry.

We strongly support the proposals to set up an independent Legal Services Board (LSB) to provide oversight regulation of the professions. We regret that the House of Lords has weakened the powers of the LSB to intervene5. Which? believes that the LSB should be a powerful but light touch regulator at the apex of the regulatory structure, not on an equal footing with the approved regulators.

We believe that by ending the current maze of regulators, consumers will be clear about how regulation works and can be confident it is designed to meet their needs and not those of providers. It is clear that self regulation isn't working because people have complained to us time and again about the second-rate service they receive from solicitors:

 

'They made several legal errors dealing with my mother's will and property...they tried to cover up in an extraordinary way...[by refusing to hand over the deeds]. I'll never trust a solicitor again.'

 

Our research shows that a third of consumers don't feel they received a good service from their solicitor, 39 per cent don't feel they were kept up-to-date with what was going on with their case and 29 per cent feel they received either fairly or very poor value for money6.

 

Mr J told us: 'His opinion turned out not to be worth the paper it was written on.'

 

Fifty six per cent of consumers agree they would have more trust in lawyers, and 55 per cent think they would get better quality legal services, if the professions were regulated by an independent body7. Those who have used a solicitor before were more likely to agree than those who have never used one. We believe that as the new single, oversight regulator, the LSB will encourage best practice, transparency and accountability, helping to rebuild consumer confidence in the industry.

 

LSB CHAIR AND BOARD APPOINTMENTS (CLAUSE 2 & SCHEDULE 1)

 

We support the proposal for the majority of the LSB to be lay persons, but to maintain consumer confidence, we would favour that all chairs of the LSB should be lay people, not just the first.

 

All appointments to the LSB should be made in line with Nolan procedures and at arms length from government. To ensure the LSB is seen as independent from government as well as from the professions, members of the LSB could be appointed by an independent commission (as, for example, judicial appointments are made), rather than by the Secretary of State. Alternatively, once the first board has been appointed by the Secretary of State, subsequent members could be appointed by a nominations committee of the LSB.

LSB POWERS (CLAUSE 3)

 

The LSB must take a robust view on how the approved regulators discharge their duties and maintain the split between their regulatory and representative functions. It must have a range of sanctions at its disposal, including the ability to fine if there are particularly serious breaches. Nearly four in five people we asked (78 per cent) agreed an independent regulator should be able to fine the legal profession if it does not do its job properly - more than half (53 per cent) agreed strongly with this8. Given the regulatory failings in the legal profession to date, it would be an extraordinarily backward step to limit the LSB's power to fine, leaving it with nothing in between the relatively minor powers of direction and censure and the ultimate penalty of removing authorisation from an approved regulator.

 

The approved regulators should only have a limited right of appeal to the High Court against regulatory decisions by the LSB, otherwise the LSB's authority will be weakened, resulting in regulatory deadlock. Approved regulators will have nothing to fear from the sanctions if they are regulating effectively, protecting consumers and not driven by the interests of their members.

CONSUMER PANEL (CLAUSE 8-11)

 

We support proposals for setting up a Consumer Panel and the roles set out for it in the Bill. We are particularly pleased the Panel will be able to challenge the LSB. The members of the Panel should be appointed by the Secretary of State, rather than the LSB, to ensure it is robust and independent and not subject to pressure from the LSB. Furthermore, members should be known to consumer organisations to make sure they have the necessary experience and knowledge of consumer issues.

 

We also support the Government's decision to reject the Joint Committee's recommendation for setting up a Practitioner Panel and to resist amendments tabled in the Lords to require the LSB to take account of practitioner representations9. The professions, through their representative bodies, already have sufficient resources to input their views to the regulatory system. The Consumer Panel will redress this balance, but setting up something similar for the professions would simply tilt the system back in their favour.

 

REGULATION OF APPROVED REGULATORS (PART 4 OF THE BILL)

Split of representative and regulatory functions by approved regulators

 

We don't think the Bill is clear enough about requiring the approved regulators to split their representative and regulatory functions (the bill uses the rather ambiguous phrase 'so far as reasonably practicable').

 

We believe the LSB should be able to have a direct, statutory relationship with the regulatory arms of the approved regulators (eg the Solicitors Regulation Authority) and we would prefer it if these bodies were able to raise their own funds, rather than rely on the approved regulator (eg the Law Society) making available 'such resources as are reasonably required for or in connection with the exercise of its regulatory functions'.

 

This is why Which? would have preferred the approved regulator to be the regulatory arm rather than the representative arm of each of the legal professions. At the very least, the Bill should require the regulatory arms of approved regulators to have lay chairs and lay majorities on their

boards to ensure the independence of decisions, though we acknowledge that both the Solicitors Regulation Authority and Bar Standards Board have made strides to include lay representation. Lay representation is a key principle of regulation, which should be enshrined in the Bill, rather than left to the LSB.

 

ALTERNATIVE BUSINESS STRUCTURES (PART 5 OF THE BILL)

 

Which? believes proposals to make the legal services market more competitive will bring significant benefits for consumers, including more choice and higher standards.

 

Which? is generally very supportive of the proposals to end the restrictions on the types of business structure that solicitors and barristers can form to provide legal services. We believe this will make it easier for new providers to enter the market, stimulating competition and innovation. It should also pave the way for more diverse legal services provision, delivering high standards of

customer service, greater efficiency and improving price and quality for consumers, unlike Mr N's experience: 'It would have been quicker to do a course in conveyancing than waiting for [the] solicitor to complete',

 

or that of Mr H, who said: 'I was appalled at the unprofessionalism, lack of knowledge and extremely poor co-ordination of services'.

 

It will also enable multi-disciplinary partnerships (MDPs), one-stop-shops delivering packages of legal and other services meeting consumers' needs, for example conveyancers, mortgage advisers, surveyors and estate agents working together.

 

Which? research carried out in November 2006 showed that 75 per cent of adults think it is a good idea to get legal services at supermarkets or high street banks (up from 63 per cent in May 2004). Six in ten would consider getting legal services through a supermarket or high-street bank in the future and nearly two thirds (65 per cent) said they would not have any concerns about getting legal advice in this way. Interestingly, about two thirds (64 per cent) believe it is important to get legal advice from a well known brand or company name, even though at the moment most people (41 per cent) say they would ask friends or family to recommend a solicitor.10

 

IMPACT OF ABS

 

We understand but do not agree with assertions by the professions that ABS firms will have a negative impact on access to justice, particularly in rural areas (and indeed the Joint Committee conceded it had 'no concrete evidence' eitherway11). We believe the LSB's role to ensure access to justice, the development of new delivery methods (eg through the internet or telephone) and the likelihood of new firms entering the market will more than mitigate this. As the Financial Times put it:

 

'Competition delivers results in ways that government bureaucrats cannot anticipate. Consumers can expect more choice, innovative services and lower prices. Familiar brands such as Tesco and the AA have nothing to gain from offering substandard legal services'.12

LICENSING ARRANGEMENTS

 

Our view is that the role of a licensing authority is to make sure alternative business structures have proper ownership, governance and management practices and not to regulate the professionals within it (although they may also have this role as an approved regulator). Therefore, an ABS firm should not have to apply to more than one licensing authority if it is providing more than one reserved legal activity. Equally, ABS firms should not be able to shop around for a licensing authority as this may lead to firms simply applying to the cheapest and/or weakest. Instead, firms should have a designated licensing authority, probably determined by the majority activity of the firm.

 

The Bill is also not clear on what arrangements need to be set up with other regulators to ensure proper protection for consumers. We believe ABS firms should have to specify in their application all the services they plan to offer so the licensing authority can ensure there are agreements with other regulators, such as the FSA if the ABS firm will be offering financial advice to consumers.

Agreements between the LSB, approved regulators and other regulators should take account of other regulatory initiatives, such the FSA's strategic approach to Treating Customers Fairly. At the moment we're unclear how these would filter through if the inspection and compliance regimes for the LSB and approved regulators are different from those expected from financial service companies.

 

We don't think there is necessarily any conflict of interest in ABS firms offering multi-disciplinary services and in fact see significant benefits for consumers in such 'one-stop-shops'. However, licensing rules should set out how firms must make it clear to consumers that they are free to get services elsewhere as well as being able to purchase them as a package from the MDP.

 

We support the view that there is no need for lawyers to be in the majority in the new firms

and we also don't think there should be a limit on external investment. This will ensure ABS firms can exploit their full development potential, promoting competition and benefiting consumers.

 

OFFICE FOR LEGAL COMPLAINTS FROM 2010 (PART 6 OF THE BILL)

 

Our number one priority is the creation of a new independent complaints handling body to which consumers can take their complaints about any lawyer.

Consumers should have access to high-quality services at a fair price. When things go wrong there should be an independent redress system in which consumers can have confidence. But the legal profession is not delivering: in 2005, the Law Society received an astonishing 18,299 complaints, equivalent to more than one for every six solicitors practising in England and Wales.

That's a staggering 18 per cent increase from 2002.

A well-functioning complaints-handling system is vital for consumer confidence. Our research13 has shown that some people who felt they've had bad service from their lawyer don't think there is any point complaining as they feel the solicitor will always have the upper hand:

 

'You cannot beat the system without a large sum of money behind you that you are prepared to risk.'

 

Of those who felt they didn't receive a good service but didn't complain, 18 per cent said this was because it was more trouble than it was worth and 16 per cent said it was unlikely anything would be done about it. Furthermore, the current process is seen as exacerbating an already stressful situation:

 

'I had had enough hassle and didn't want to prolong my demoralising, annoying experience.'

 

Ms H told us in January 2004: 'I did not take any further action as I felt it would be too upsetting. My solicitor's rudeness had already annoyed and upset me and I didn't want to go through it again.'

LEGAL COMPLAINTS SERVICE (UNTIL 2010)

 

In January 2007, the Law Society's complaints arm was renamed again and is now called the Legal Complaints Service (LCS). It is welcome that since January 2006 it has had its own majority lay board and an independent (nonlegal) chair. Importantly, the LCS has publicly declared its support for the Legal Services bill, including the establishment of the OLC and that the OLC should include all parts of the legal profession.14

It is also welcome that the LCS is now showing considerable independence from the Law Society and has published its own Improvement Agenda for the period 2007-2010, after which the OLC will come into existence. Compared to 2005-06, the LCS performance is improving but it is vital that the current complaints system continues to be reformed and further improved in the period leading up to the establishment of the new OLC in 2010.

 

As part of this process, in April 2007, the Legal Service Complaints Commissioner declared the LCS's complaint handling plan as 'adequate'. She welcomed their commitment to delivering wider business improvements which better serve the needs of all their users but she noted 'it is imperative that a step change in the handling of complaints is made to ensure improvements are delivered sooner.'15

But in her 2005-06 Annual Report, she highlighted why a continuing reform agenda was important: in the period to April 2006, the LCS still missed four out of the seven targets in its plan, including two for timeliness, and those for quality of decisions and customer satisfaction, and four out of ten of all consumers remain dissatisfied with the way in which their complaint was handled.16 In addition, in July 2006 she fined the Law Society/LCS 250,000 for having 'inadequate' plans and letting consumers down. Most recently, in November 2006, she highlighted four key areas where the LCS was still failing, including that only 10 per cent of initial letters issued to consumers contained all the information required, such as informing the consumer that their complaint will be copied to the solicitor they are complaining about.17

 

BAR STANDARDS BOARD (UNTIL 2010)

 

It is not just solicitors' complaints handling that needs to change. While the Bar Council has not had such widespread criticism of its complaints handling as the Law Society, in our view it gets more complaints than it should (from April 2005 to March 2006 there were 560 consumer complaints to the Bar Council18, but we wouldn't expect there to be so many, given that barristers have little direct contact with consumers).

 

It is welcome that the Bar Council has, like the Law Society, established a separate organisation to handle complaints and regulatory matters - the Bar Standards Board (BSB). However, unlike the Law Society, which has a separate regulatory body (the Solicitors Regulation Authority), the BSB handles both complaints and regulatory issues.

 

Which? has found that the BSB's complaints handling is not at all transparent, is far too complicated and bureaucratic, relies too heavily on 'volunteers' and is not particularly accessible. It needs root and branch reform if it is to meet the needs of the modern consumer. We therefore welcome the ongoing review being conducted by the Bar Standards Board Complaints Commissioner, Robert Behrens, who is due to report this summer on how their complaints handling can be improved in the period leading up to the establishment of the OLC in 2010.

 

STRUCTURE AND LOCATION OF THE OFFICE FOR LEGAL COMPLAINTS

 

We strongly support the proposals to set up an independent Office for Legal Complaints (OLC) to deal with all consumer complaints. Consumers will now be clear about where to take their complaint and there will be a quick, fair and accessible way to put it right. Furthermore, they will have confidence their complaints will be dealt with transparently and independently, rather than as now where:

 

'I feel they all cover up for each other and the way they carry out their investigation is a total sham.'

 

We are pleased the proposals are for the OLC chair and majority of members to be non-lawyers

and experts in consumer affairs, complaints handling and customer service.

 

Which? has identified seven key principles for an effective ombudsman scheme:

 

Access

Independence

Fairness

Transparency

Effectiveness

Efficiency

Confidentiality.

 

The proposals for the OLC in the Bill should meet these requirements. To ensure this is the case, the scheme rules should be drawn up in consultation with the Consumer Panel and other consumer groups.

 

If these principles are to be maintained and if consumers are to trust the new OLC, it must be a completely new and independent organisation and not just a re-badging of the LCS. We were concerned at the Government's announcement in June 2006 that the OLC would be located in the West Midlands. This suggests the only new element may be the building the staff will sit in, as many incumbent staff are likely to be moving across from the LCS en masse. It is therefore vital that the OLC is an entirely new body; this will also act as reassurance to the Bar Council that its concerns are mis-placed about its complaints handling being part of the OLC.

DELEGATION OF COMPLAINTS (TO THE BAR COUNCIL/BAR STANDARDS BOARD)

 

Which? believes that it is vital all complaints are handled by the OLC to ensure a consistent

approach and retain consumer confidence. There must be no delegation of complaints handling to the approved regulators. We are aware that the Bar Council has made repeated representations to both Government and Parliament to secure delegation of complaint handling. With NCC and CAB, we wrote to the Lords Minister on 4 May 2007 to make our opposition clear.19 Despite this, the Lords voted to allow the OLC to delegate complaints to approved regulators, including

the Bar Council.20

 

Consumers will not trust a regulatory system that allows lawyers to judge their own. Independence is the single most critical principle in any redress scheme. Separating the regulatory and representative functions of the professional bodies will be insufficient to command consumer confidence in this respect. Boundaries between the legal professions are already blurred and will be more so as alternative business structures come into existence.

 

The creation of a fully independent ombudsman scheme (the OLC), covering all seven parts of the legal profession, was central to the vision set out by Sir David Clementi in his report.21 So to depart from this vision by allowing delegation of complaints from the OLC to any of the approved regulator can not be said to be 'putting consumers first'.22

It is however, welcome that the Law Society does not seek delegation. Our research shows 81 per cent of people who have used a solicitor in the last three years agree they would prefer to make a complaint to an independent party and 52 per cent said they would be put off making a complaint if it had to be to another solicitor.23

Only one in four people who have dealt with a solicitor in the last three years have been made aware of the complaints procedure24, even though this is supposed to happen under the Law Society's regulations:

 

'I was not informed I could take the case further...I didn't know there was a complaints procedure.'

POWERS OF THE OLC

 

The OLC should be required to monitor whether lawyers are properly informing consumers about how to complain, as well as promptly making information available about upheld complaints (both service and disciplinary). The Bill proposes that the OLC may publish reports of investigations, but we would like to see this section strengthened so more information can be made publicly available. Consumers should be able to find out which firms have had complaints about them upheld to help them make informed choices. Making this information public also acts as a deterrent to non-compliance. The OLC should consult with its consumer panel and other consumer groups to ensure this is done in the most effective way for consumers.

 

DISCIPLINARY ISSUES

 

It is not clear from the Bill whether consumers will be able to make representations on disciplinary matters arising from their complaints. Consumers do not differentiate between service complaints and disciplinary matters and they should be kept informed of the outcome of any complaint they make, even if it concerns misconduct and is referred to the approved regulator by the OLC. It is also vital that consumers are entitled to compensation for financial loss whether their case is a service or misconduct issue.

 

REDRESS PROVISIONS

 

We are not sure of the rationale for setting the maximum redress in the Bill at 20,000. While this is an increase on the current Law Society limit of 15,000, it is still substantially below other ombudsman schemes. Which? has advocated that the limit should match the limit of the Financial Ombudsman Service, which is 100,000. At the very least it should be 25,000, the limit for the Ombudsman for Estate Agents, which, it is worth noting, is currently a largely unregulated industry! Amendments were tabled at Lords Committee Stage on this point but their Lordships made no change to the bill.25

APPEALS

 

We support the view there should be no external appeals body for decisions of the OLC, providing consumers still have the right to go to court. It is worth noting that people unhappy with a decision of the Financial Ombudsman can have their decision assessed by an independent assessor who examines the processes to see if the decision was made correctly. The assessor does not have the power to reverse the decision, but can resubmit it back to FOS where he disagrees.

This happened with Mr C in a recent endowment claims time bar case and can be persuasive if the consumer then wants to take the matter to court, which Mr C did and the court found in his favour.

The Bill proposes that neither complainants nor respondents will be able to take legal proceedings in respect of determined complaints but we also want to see safeguards against solicitors bringing vexatious legal proceedings about the subject of a complaint to avoid investigation by the OLC.

 

COMPLAINTS ABOUT ALTERNATIVE BUSINESS STRUCTURES

 

We seek clarity about ABS firm complaints. There needs to be a robust system to make sure these complaints don't fall between different ombudsman schemes and to ensure consumers don't have to complain twice to different bodies about the same issue. There must be a clear pathway so consumers know who is handling their complaint and whom to contact for information. In particular, we are concerned there should be clearer guidelines about when complaints should be passed to other schemes so consumers do not suffer from the likely lower levels of redress available under the OLC scheme.

 

We would suggest that once a consumer has exhausted the ABS firm's own complaints procedure, they should, in all instances, complain to the OLC. However, their complaint can be automatically channelled to, for example, FOS if their complaint is about a financial adviser within the firm (subject to the Data Protection Act and providing the complainant gives consent). This would ensure the consumer is entitled to the same level of compensation available as if they had bought the product from a company directly regulated by the FSA.

 

We are concerned there is a lack of clarity as to which body would deal with a complaint about a financial product bought from a solicitor. Would their complaint remain with the OLC or would it also be transferred to FOS? This is important because it will determine the amount of compensation a consumer may receive. It may also mean there is pressure on the OLC to deal directly with as many complaints as possible since it will have a lower redress limit. So there must be consistency across redress schemes to ensure consumers don't lose out financially because their complaint is handled by one body rather than another.

COMPENSATION FUND

 

Which? is disappointed that the Bill doesn't contain any reference to a compensation fund, other than in respect of practice requirements under the licensing rules (schedule 11). We believe this is a key aspect missing from the proposals. As a general principle, we believe a central compensation fund, rather than approved regulators each running their own, would be the most effective and efficient way of securing redress for consumers who are not able to get compensation through other means.

OLC TRANSITIONAL ARRANGEMENTS

 

We support the Government's intention to appoint an interim OLC chief executive to oversee transition arrangements for complaints handling so consumers do not suffer from declining levels of service in the interim (2008-2010) caused by low staff morale in the existing complaints handling bodies.

 

CONCLUSION

 

Access to justice is a fundamental consumer right and effective regulation of legal services is vital to restore consumer confidence in a system which many feel is letting them down. The radical overhaul of the regulation of legal professions set out in the Bill will make it easier to access legal services, ensure better protection for consumers and help to reduce the negative perception many people have of the legal professions.

 

It is vital the proposals are not watered down during the legislative process and proper resources are made available to ensure a truly robust regulatory system operating on behalf of consumers. There are five key areas that must remain intact if the Bill is really to benefit consumers:

 

There can be no delegation of complaints handling to the approved regulators. To ensure a consistent approach in the interests of consumers, all complaints about all legal professionals must be dealt with by the Office for Legal Complaints.

 

The Office for Legal Complaints must be a completely new and independent organisation and not a re-badging of the existing Legal Complaints Service.

There should be a direct statutory relationship between the Legal Services Board and the regulatory arms of the approved regulators.

 

The Legal Services Board must be robust enough to hold the approved regulators to account and have a range of sanctions, including the power to fine.

The proposals for alternative business structures should remain to ensure the market is opened up to competition, improving quality and choice for consumers.

These reforms are radical, but Which? believes they are not only desirable, but necessary to ensure a legal profession fit for the twenty-first century that puts consumers first.

 

CASE STUDIES

 

Inheritance incompetence

A lawyer's slipshod service meant that a family nearly missed out on more than 30,000 of an inheritance.

 

Mr B and Mr C's aunt died in 1998, and probate was granted a month later. Clive

Cullen of Cullens Solicitors of Stratford, London, was named as the sole executor of the will. Mr B and Mr C were among their aunt's seven nephews and nieces who were the beneficiaries. Ten months later, 154,000 from their aunt's estate was shared out between Mr B, Mr C and their cousins. A further 11,550 was released about a year and a half later. But Mr B and Mr C were annoyed that the solicitor had been so slow in executing the will, and also that he hadn't responded to their letters and phone calls. They also suspected their late aunt's estate hadn't been administered properly. So, in December 2001, Mr B instructed another solicitor to investigate Cullens' administration of their late aunt's estate.

 

The investigating solicitor found that Mr B's suspicions were well founded. He said Clive Cullen had "been woefully deficient in the administration of the estate" and had paid more inheritance tax than it should have. It also miscalculated the amount of interest during the administration period that should have been paid out to Mr B, Mr C and their cousins. Cullens accepted it got the inheritance tax wrong and paid for the investigating solicitor's fees. Four and a half years after the death of their aunt, the cousins received a further 34,000 between them. 'We felt annoyed, robbed and fobbed off,' Mr B said.

 

(Published in Which? magazine in July 2004)

Path to destruction

 

Mr and Mrs G could have lost their new home because of an incompetent solicitor.

 

When the couple decided to buy the newlybuilt home, in West Yorkshire, the builder recommended a panel of solicitors to deal with the purchase. 'We were given incentives to use one of these solicitors and were promised a smooth and early completion', Mr G said. So they chose one of the builder's recommended solicitors, Grahame Stowe Bateson of Leeds. Less than a week after completion Mr and Mrs G received a visit from a council officer. 'We were shocked to be told that our house had a public footpath running right through the middle of it,' Mr G said. 'About a month later, we received a letter from the council saying our house might have to be demolished.' The letter said the council would have expected Grahame Stowe Bateson to have picked up on the footpath before the sale went through.Mr G complained to the Law Society about Grahame Stowe Bateson, and it found no evidence that the solicitor had provided information about this footpath. Grahame Stowe Bateson offered just 500 to settle the complaint before the case was sent to the Law Society's adjudicator. Amazingly, the Law Society thought that this was reasonable, because it can compensate only for the 'inadequacy of service', and not for the consequences of it. Mr and Mrs G decided to accept the 500 as settlement. Happily for them several months after completion the council agreed to redirect the footpath away from their house. 'The experience was very stressful,' Mr G told us. 'It took away any pleasure of buying and settling into our new home.'

 

(Published in Which? magazine in July 2004)

 

The case of the missing claim

 

When it came to light that Mrs F's teenage sons had been sexually abused since the ages of three and five, she engaged Gartons solicitors of Wakefield to represent them. The youngest boy had been psychologically damaged by the abuse and had since been in trouble with the police. The abusers were convicted and Mrs F was told her sons were entitled to compensation. She says they were told that the older boy could be entitled to around 6,000 and the younger to around 40,000 because of the disabilities he'd suffered as a result of the abuse. After many months of asking Gartons how the claim was progressing, Mrs F contacted the Criminal Injuries Compensation Board herself, and was told they had no record of her younger son's case. It turned out that Gartons had not filed the claim at all and it was now too late. Gartons then denied ever having agreed to submit the claim. However, the files were subsequently found and Mrs F engaged another solicitor, and issued proceedings against Gartons for negligence. Although she

had been told it was possible that her son could get a lot more, she finally settled for 42,000 as the pressure was severely distressing him.

(Published in Which? magazine in July 2001)

FOOTNOTES

1 Online omnibus of 2,081 adults across GB 2-4 November 2005

2 Which? surveyed 2002 adults 18+ using an online omnibus survey

between 11-14 March 2005. This was weighted up to 2007 adults to

make them representative of all adults in the UK

3 Which? postal survey of 321 people in January 2004 who felt their

solicitor had given them a poor service in the last three years.

4 Online omnibus of 2,081 adults across GB 2-4 November 2005

5 House of Lords Hansard 18.4.07 col 254, Report Stage, Legal

Services bill

6 Which? online omnibus of 2,002 adults in March 2005

7 Which? telephone omnibus of 1,006 adults in November 2006

8 Which? telephone omnibus of 1,006 adults in November 2006

9 House of Lords Hansard, Report Stage, Day 1, 16.4.07, col 230)

10 Which? telephone omnibus of 1,006 adults in November 2006

11 Paragraph 324 of the Joint Committee on the Draft Legal Services

Bill report, 25 July 2006

12 Financial Times 6.6.06

13 Which? online omnibus by YouGov of 2081 adults across GB, 2-4

November 2005

14 LCS publicly released letter to Bridget Prentice MP, DCA Minister,

dated 16/1/07

15 Office of the Legal Services Complaints Commissioner, press notice

dated 17/4/07

16 Actions Not Words: Consumers matter, Annual Report of the Legal

Services Complaints Commissioner 2005-06

17 Legal Services Complaints Commissioner's Annual Case File Audit of

the Law Society's performance in the handling of consumer complaints

about solicitors, 22 November 2006

18 Page 48, Legal Services Ombudsman Annual Report 2005-06

19 Joint letter from Which?, National Consumers' Council and Citizens

Advice to Baroness Ashton, 4th May 2007

20 House of Lords Hansard, Report Stage Day 3, 8th May 2007 col

1294

21 Clementi Report, December 2004

22 the subtitle of the Government's White Paper: the Future of Legal

Services, October 2005

23 Online omnibus of 2,081 adults across GB 2-4 November 2005

24 Which? online omnibus by YouGov of 2081 adults across GB, 2-4

November 2005

25 House of Lords Hansard, Committee Stage, 21/2/07, col 1128

 

June 2007