Open and shrewd

Read our Chief Ombudsman, Adam Sampson's blog.

The lion shows its claws

15 February 2011

LeO was not our first choice of acronym. Indeed, the idea was not to have an acronym at all – or at least that was the advice we received. But it rapidly became clear that no-one was going to go through the pfaff of writing the Legal Ombudsman in full every time they wanted to refer to us. Least of all us – not all the time anyway.

And so we searched for an acronym. LO risked an endless stream of policeman imitations ("LO, LO, LO"), LOS (Legal Ombudman Service) was, well, a dead loss, and LOO (Legal Ombudsman's Office) was – fill in your own joke. We even played with LegO for a while (see what I did there?) until trademark issues and wiser heads intervened.

And so LeO it was. The semiotics of LeO are not without risk ("toothless lion" being the least of the metaphors available). But overall, I don't mind us being seen as slightly scary. One of the early learnings from our first few months is that, while the vast majority of the lawyers we are dealing with are just anxious to get things right, there are some who simply refuse to acknowledge that the world has changed and that they are now dealing with a statutory Ombudsman with the power to enforce its rights.

And that is what we are now in the process of doing. In the next few days, our General Counsel, Anthony Rich, will be instructing counsel to go to the High Court to enforce the right - given to us under the Legal Services Act - to get full access to relevant documents from a solicitor who appears to be resolutely unwilling to disclose them. We know the solicitor exists. He has, occasionally, answered the phone to our investigators. Also, to judge from the steady flow of new complaints about him we are receiving (nine cases open and counting), he appears still to be working. This is not a case of a lawyer who has died, absconded or simply shut up shop.

And it is not as if we haven't given him every chance. We have written, phoned, sent him warnings about our intention to use our powers, and liaised with the SRA (Solicitors Regulation Authority) to give them time to intervene. Had circumstances been different, we may have gone ahead without his co-operation; after all, we make our decisions on the balance of evidence before us and if one party chooses not to come forward with evidence to rebut that provided by the other party, they can hardly complain if our decision goes against them.

But among the complaints we are dealing with is one from a man who is desperately trying to get access to his file, which our solicitor still holds, so that he can respond to a coming court action. Our solicitor could – should – simply release the file. If he doesn't accept our power to demand it from him, we will simply have to ask the High Court to enforce it.



No such thing as a free dinner

1 February 2011

The invitation had seemed enticing enough. Come and speak to a small gathering of interested barristers, it said. Give a 15 minute introduction to the work of the Legal Ombudsman, listen to a couple of other speakers – another Ombudsman from the Financial Ombudsman Service (FOS) and a barrister with a particular specialism in Ombudsmanary – and then enjoy a couple of drinks and an agreeable dinner.

I did hesitate. Arsenal were playing the second leg of the Carling Cup semi-final that night and given that I am dry in January, the promise of drink didn't have its usual allure. But duty won out. I duly turned up, followed my FOS colleague's speech with my now customary spiel, and sat down to polite applause, content with my evening's work.

And then it began. The third speaker rose, cleared his throat and spoke. The Ombudsmen are "quite simply an affront to the rule of law", he declaimed. There then followed a 20 minute tour de force of barristerial skill - a forensic deconstruction of the legal basis of Ombudsman schemes. When he signed off with an impassioned call to the barristerial profession to rise up to rescue 2,000 years of legal practice from the threat posed by what he saw as an unbalanced process, I was unsure whether to attempt to point out some of the factual errors made in his address, or lead the calls for my own lynching.

In the event, I took the safer route and contented myself with suggesting that a service established by legislation voted for by all parties in a democratically elected Parliament could scarcely be counted as undemocratic or contrary to the rule of law. I confess that I was a tad surprised – not at the existence of opposition from within the profession (although the proposal to introduce a new Legal Ombudsman was supported by the Law Society and Bar Council, among others), but at its timing and intensity. When I was appointed nearly two years ago, I expected to hear some residual grumbles about the changes, but in the event, encountered none. I know that when we have built up some sort of track record of making decisions, it is likely that some lawyers will criticise us for what they might see as bias, inefficiency or ignorance. Having made just a handful of decisions so far, that day still lies in the future.

His critique was not based on the principle of the change, nor our performance in the role. No – the issue at the heart of his discomfort seemed to be one of culture rather than principle or practice. The issues he cited as evidence of his claim were issues where Ombudsman practice departs from conventional legal practice. The treatment of evidence, the absence of oral hearings, the predictability of decision-making - these were what really seemed to concern him. Ombudsmen, he suspected, saw themselves as lying outside the law, rather than subject to it.

Much of this seemed to skip over that our role is as a dispute resolution mechanic for what are mostly relatively minor service issues (no matter how intense the feelings of those involved are). Clearly, some people brought up in a particular legal tradition struggle to accept that there are other, non-legalistic ways of investigating and adjudicating on contested matters. The fact that the Ombudsman tradition is European rather than British in origin may have something to do with it too.

But, in truth, I can understand some of his disquiet. It is true that some Ombudsman schemes are insufficiently transparent about their pattern of decision-making. It is true that we can do more to explain how we apply the "fair and reasonable‟ test we commonly use. It's also true that we could do more to explain our relationship with legal and regulatory case law, and make it clear when we are departing from it (as, from time to time we will), why we are doing so.

But if greater transparency and predictability is the aim, part of the solution lies in the hands of the profession itself. We have recently been consulting about our approach to publishing information about our work. It's an open secret that we are hoping to publish as much information as we can about the decisions we make. However, it is also fair to say that some legal professionals have been very cautious about how far we should go. One of the calls made by my barristerial colleague was for all Ombudsman decisions to be made in public. It will be interesting to discover how far his colleagues would support such a move in practice.