Case study: Legal complaint

Mr and Mrs E asked their solicitor to act for them in the sale and purchase of property.

Things went wrong at the last minute and Mr E complained to the Law Society in April 2003 that no cleared funds were available on the agreed date.

The solicitors did not discharge the old mortgage and had ignored written instructions to allow the purchasers to move in one day earlier and charged for items that Mr E had undertaken.

He provided relevant background information and detailed what the consequences had been for him and his wife. Mr E noted that they had paid the solicitors' fees.

A Case Manager in the Law Society's Client Relations Office asked the solicitors to comment.

They were satisfied that they had acted properly and in accordance with normal practice, they thought their only failure had been that they were unable to make their clients understand how the settlement process worked.

They did not think that any apology was due by them, but thought that Mr and Mrs E should be doing the apologising.

Admin burden

The case manager referred the circumstances to the Law Society's professional practice committee, which noted that it was normal practice to send a cheque the same day to settle a loan or the purchase.

But it also said it was prudent to seek a loan settlement figure of a few days after the settlement, so that by the time the cheque is received there would be no additional interest, though that did not mean waiting for a few days to send the loan redemption cheque.

It noted that if all solicitors waited for cleared funds before issuing their own cheque, then the profession as a whole would need to account for interest earned which would be an enormous administrative burden.

The committee determined that redemption cheques should be sent out on the same day, or the day after, the incoming cheque is banked, unless the recipient banked at the same branch of the same bank as the solicitors.

The case manager asked Mr E for evidence of what his instructions had been on cleared funds.

Mr and Mrs E replied that their solicitor had been supposed to act on their behalf and ensure that no problems arose - he had not done that.

They had put their trust in their family lawyer but it was clear that they needed to have taped the discussions with him or had an independent witness.

Ombudsman complaint

The case manager replied that it boiled down to Mr E's word against the solicitor's and it was up to Mr E to provide proof to support his complaint because there seemed to be an absence of evidence.

When Mr E gave up and did not reply, the case manager told him she was closing the file.

Fortunately, Mrs E did not give up and she wrote in August with a copy of the letters and papers her husband had sent at the outset, painstakingly highlighting where they provided evidence to support the complaints.

After the Law Society refused to re-open the case, Mr and Mrs E complained to the ombudsman.

I was not satisfied that the Law Society had acted reasonably and I recommended that the complaints were investigated.

The Law Society accepted that recommendation and the complaints were investigated.

Some of the complaints were upheld and the solicitors have been ordered to pay compensation to Mr and Mrs E.