Our approach to dealing with complaints about delay
Along with poor communication, delays are the most common area of complaint that the Legal Ombudsman receives – last year, 21% of complaints that we investigated were either about an unreasonable delay or failure to progress.
Unfortunately, many of the complaints that we see are avoidable. This month I want to share our advice on how to avoid them, or to put them right fairly if they do arise.
It’s inevitable unforeseen issues and delays will sometimes arise when handling some client matters. When we investigate a complaint about delay, we can’t and won’t hold the service provider responsible for delays that are outside their control. Recent examples we’ve seen include delays in registering properties, obtaining grant of probate and matters becoming protracted due to delays in obtaining court dates. We have also seen a lot of complaints relating to delays in service providers dealing with property purchases during the Stamp Duty (SDLT) – where the purchase did not complete before the window closed, causing the buyer to incur a Stamp Duty liability that they did not want or expect. None of these delays are within a service provider’s control.
Where we have upheld complaints relating to these issues, it is almost always the case that – although the service provider was not directly responsible for the delay –they have failed to adequately communicate with and update their client.
So the failure in service does not relate to the delay itself, but rather that the client has not been told that the delay is likely, or that matters have been delayed, and provided with updates. It’s understandable that some clients would perceive that, as their matter is not progressing, their legal representative is at fault – leading them to make a complaint.
It is always worth remembering that a client will, in most cases, have little experience in dealing with legal matters, so won’t know how long things might take. This isn’t helped by TV adverts which show people being injured and then immediately holding cheques. But my experience as an ombudsman is that across areas of law, clients expect things to develop and resolve far quicker than is realistic.
So we always advise service providers to be very clear at the outset as to how long things may take, and to provide realistic timescales for work they’re carrying out. In some areas of law, for example litigation, it is difficult for a service provider to provide an accurate timescale of when the claim will resolve – because they will not know, at the start of the claim, what the ability and intention of the other side in the claim are with regards to settlement. Even so, the more information that the service provider can give at the start, the less likely the client is to want to raise a complaint about delay.
If a delay develops which is outside the service provider’s control, we always advise them to let their client know what is causing the delay and why, and then provide regular updates to let them know what has changed as things develop.
Where a delay is being caused by a third party, we would expect to see service providers chasing that third party on behalf of their client, although we recognise that some cases this will not be possible. Our test is always to determine what is fair and reasonable – and we don’t expect service providers to be on the telephone every day chasing, for example, medical evidence in support of a personal injury claim or the seller of a property for responses to enquiries made. We just check that there have been reasonable attempts made by the service provider to chase for a response.
There are of course complaints where I have determined that there have been unreasonable delays, or a failure to progress a matter, which are not outside the service provider’s control. This tends to be where the matter instructed is not urgent, but the service provider then receives urgent instructions on other retainers which understandably take priority – resulting in the non-urgent matter being left. This is particularly common in wills and probate matters. It can often be the case that the service provider deals with other retainers and ‘takes their eye off the ball’ in respect of the non-urgent matter.
Because of this, we always advise firms to diarise reviews of the non-urgent files to ensure that it is regularly picked up and the client updated. This is particularly relevant if the client care letter sets out a schedule for such updates. We always look at what the client has been told and therefore expects, and this will be a material consideration when making a decision about the level of service provided.
In light of this, I would say that most complaints about delay that we uphold are as much about communication with the client – which is always key when dealing with legal matters and central to high standards of service.