Mr A instructed Harrow-based firm Ansham White Limited (‘the firm’) to act for him in his litigation matter. The Legal Ombudsman accepted for investigation 25 issues of complaint made by Mr A about the firm, of which 19 issues were upheld. The Final Decision directed the firm to pay Mr A £25,473.10.

This case was important because there were so many service failings identified throughout the retainer. These included issues in relation to the firm’s preparation of the case for trial, and their representation of Mr A at that hearing. The firm then advised Mr A to embark on what was ultimately a costly and unsuccessful appeal.
That could have been avoided had the firm either provided the barrister advising on the merits of the appeal with an accurate note of the hearing, or if the firm had obtained a transcript of the hearing. There were also difficulties during the investigation obtaining key evidence from the firm.

The firm had acted for Mr A in his claim against his local council for damage caused to his property by large trees in the adjoining council-owned park. This was shortly after the trial had been adjourned. The trial was relisted for a later date. Mr A did not attend the trial, at which a fee earner from the firm represented him. His claim was partly successful, but he was left out of pocket, as he failed to beat the other side’s Part 36 offer.

The firm instructed a barrister to advise on the merits of an appeal. The barrister’s advice was that there were reasonable prospects of success. However, the barrister said that his advice was based entirely on the firm’s note and recollection of the trial, so if the firm had any doubt about the accuracy of the note, then a transcript of the trial should be obtained. An appeal was lodged, without a transcript being obtained.

The full transcript was not obtained until significantly later, and the firm did not provide a copy of it to Mr A until about 11 pm the night before the appeal. The transcript showed that the judge had heavily criticised the firm’s preparation for the trial, and their representation of Mr A at the hearing. It also showed that there were many inaccuracies in the firm’s note of the trial.

Following receipt of the transcript, the barrister who was now representing Mr A at the appeal expressed concerns, including that the appeal would be ‘difficult and challenging’ and that the transcript had weakened the prospects of success. Those concerns were not shared with Mr A by the firm. The appeal was unsuccessful, and Mr A was ordered to pay the other party’s costs.

The complaint issues accepted for investigation by this office broadly fell into two categories: complaint issues about the service in relation to the trial, and complaint issues about the service in relation to the appeal.

Regarding the trial, the complaint issues upheld included the firm: failing to seek permission to rely on an additional expert report; failing to advise Mr A that he would need to obtain and seek permission to rely on appropriate medical evidence to support his personal injury claim; failing to arrange for the trial to be listed when Mr A could attend; failing to ask appropriate questions of the expert witness at the trial; and failing to seek an order that the trees be cut down and instead confirming only damages were sought.

The complaint issues upheld that related to the appeal included the firm: failing to obtain the transcript within a reasonable time of the trial; failing to provide the transcript to Mr A until about 11pm the night before the appeal; failing to submit court documents on time; and delay.

Regarding the remedy directed to address these service failings, a significant element was for the costs of the appeal. Had the firm’s service been reasonable, they would have obtained the transcript soon after the trial and before lodging the appeal, as clearly advised by the barrister. Had this been provided to the barrister who had initially advised on the prospects of an appeal, he would most likely have advised (as the later barrister did with the benefit of the transcript) that the appeal would be ‘difficult and challenging’. Had that happened, then it was more likely than not, that Mr A would not have agreed to pursue the appeal, and so not have incurred those costs.

The remedy directed in the Final Decision comprised the following elements: a refund of 75% of the firm’s costs for work regarding the trial (as the value of that work was substantially diminished due to the many service failings upheld) which was £5,265; most of the costs of the appeal, including most of the firm’s own costs, counsel’s fees and the adverse costs order (as explained above) totalling £19,208.10; and a sum for the emotional distress caused to Mr A by these service failings of £1,000. This meant that a total sum was directed to be paid by the firm to Mr A of £25,473.10.

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The death of a family member is devastating; however, a Last Will and Testament can provide financial security for loved ones, particularly in blended family relationships.

A Will drafted for an individual’s circumstances can also ensure that the surviving partner can live in the family home, even if they will not inherit its whole value.

Nonetheless, the best laid plans can be derailed if the legal professionals trusted with administering the estate fail to treat the beneficiaries fairly or deviate from the wishes laid out in the Will.

Mr C believed he was providing for his long-term partner, Mrs B, when he instructed Southampton-based firm Underwood & Co (“the firm”) to draft his Will in 2005. He made sure that she would receive one-fifth of his estate and ensured that she was allowed to continue to live in the house he owned for as long as she needed.

Although Mr C named Mrs B as an executor, when he died in XXXX, she felt unable to complete the task, so that fell to the reserve executors, Underwood & Co.

Although Probate was granted in the same year as Mr B’s death, Mrs B received none of the £21,600 cash assets due to her before she died (almost two years later), nor did she receive any explanation about why the money had been withheld.

After Mrs B’s death, her daughter and executor, Ms D, tried to establish the legacy due to Mrs B’s estate from Mr C’s estate, but the firm failed or refused to engage with her. Indeed, they provided only one update of substance, despite the house being sold 9 months later.

Ms D’s attempted to complain to the firm, even using another solicitor, all failed to elicit a response or any of the money due, so she brought her complaint to the Legal Ombudsman nearly 5 years after Mr C had died.

Ms D could complain to the firm and to the Legal Ombudsman because she was complaining about a service Mrs B, as a beneficiary of Mr C’s estate, had received when she was alive. Ms D could also complain, in her own right, about the service she received when she was Mrs B’s personal representative, and her estate was a beneficiary of Mr C’s estate.

Unfortunately, the Legal Ombudsman could not start the investigation immediately, but Ms D and her solicitor continued to chase Underwood & Co. without success.

Ms D finally received a letter in 2023 informing her that Mrs B’s estate would receive just £17,709, after deductions, from Mr C’s estate, but it took several further letters before Underwood & Co. explained why it was so much lower than expected.

Underwood & Co. explained that they had received representations from another residuary beneficiary, one of Mr C’s four children, which made them look at the original notes made when the Will was executed. They concluded, without ever speaking to Mrs B or Ms D, that the wording of the Will was not as Mr C intended and they decided that Mrs B’s estate should not receive one-fifth of the value of the house.

Following this exchange, Ms D raised further complaints with the firm and these were added to those dealt with by the Legal Ombudsman.

After an extensive investigation, the Legal Ombudsman was able to establish that Underwood & Co. had paid the other four residuary beneficiaries £21,600 each a number of years prior but had withheld Mrs B’s share. However, the firm had never told Mrs B why they were doing this which meant that she died without having access to the cash Mr C had left to her in his Will.

The ombudsman also found that the firm failed to respond to numerous legitimate requests from Ms D and her solicitors for information about Mr C’s Estate, his Will, the estate accounts and interim payments, and the legacy Mrs B’s estate was due. They also failed to respond to any requests for payment of monies due to Mrs B or her estate. Likewise, the firm had failed to deal with any of Ms D’s complaints.

Nevertheless, although Ms D had seen that the house had been sold some time prior, the ombudsman found that Underwood & Co. did not respond to any requests for updates for a number of years. However, we established that the other four residuary beneficiaries had each received a quarter of the value of the house, within a month of the sale.

The ombudsman was satisfied that the wording of Mr C’s Will meant Mrs B’s estate should have received one-fifth of the residuary of the whole estate, including the house. Moreover, the firm failed to provide the ombudsman with any legal authority to vary the Will from what was written and signed by Mr C in October 2006.

Therefore, the ombudsman concluded that Underwood & Co. had failed to administer the estate in accordance with Mr C’s Will. This meant that the firm had diverted £51,235 from the house sale to the other four beneficiaries thus depriving Mrs B’s estate of that money.

The Legal Ombudsman has a cap of £50,000 on a remedy, which is why we could not award the full amount, but the ombudsman decided that interest could be added to that amount as Mrs B’s beneficiaries had lost the value of their inheritance.

In total, the ombudsman awarded Mrs B’s estate £60,962.99, including the interest and refund of fees.

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The facts

Mr A and Ms B wanted to make a claim against their former employer. They instructed London-based firm Scornik Gerstein LLP (“the firm”) to help them. Originally paying privately for the work, Mr A and Ms B were struggling to keep to the payment plan that had been set up. Nearly two years later, the arrangement for the payment of costs changed to a damages-based agreement (known in short as a “DBA”). This explained that the firm’s fees would be defined by 35% of whatever was recovered under the claim.

The case was ultimately settled by agreement in Mr A and Ms B’s favour. Although there was a delay in payment, leading to work to enforce the debt, the employer paid both the compensation and the legal costs that had been agreed between them. On receipt of the settlement amount, the firm deducted 35% of the damages for its own fees (a total of £36,225) and Mr A and Ms B complained about that deduction. Unhappy with the firm’s response, Mr A and Ms B brought the matter to us.

Mr A and Ms B’s complaint was that the firm deducted more fees than agreed in the Damages Based Agreement. They argued that the firm had charged twice for the work, taking its fees both from the employer and from Mr A and Ms B. The firm cooperated with our investigation, including responding to questions the ombudsman asked, before he made his decision.

Our Scheme Rule 5.37a) says that, in deciding what is fair and reasonable, an ombudsman will take into account what decision a court might make.

Our normal approach is to focus on the service, rather than the law, which means we find ourselves looking at the work a lawyer has done a case through a different lens to the lens a judge would in a negligence or contract claim. However, it was clear to us that some consideration of the law on DBAs was necessary, as the firm was strong in its belief that it had acted both appropriately and with the clients’ consent.

The law

In litigation, the winning party will usually get some or all of their legal costs paid by the losing party. With DBAs, there is a specific set of regulations, and section 4 of the DBA Regulations 2013 specifies that the winning claimant’s lawyer shouldn’t recover more than the percentage fee and the losing defendant shouldn’t pay more than the assessed costs. This is known as the Ontario model.

Although employment cases are treated differently, our review of the law and the background led us to conclude that the courts would still say the spirit of the Ontario model applies. The firm was given the chance to comment but didn’t give us anything we considered persuasive, so our conclusion was that the 35% should only be taken once, unless there had been some specific and clear reason for a second payment that Mr A and Ms B gave informed consent to.

Our decision

The firm didn’t send us any cost information to support its account that Mr A and Ms B should have understood that they would be charged separately to any money recovered from the employer for legal fees. We’d expect something so important to be documented. The DBA the firm drafted did make reference to the possibility of charging for additional work to the employment claim, but it said the firm would tell Mr A and Ms B if that happened, and we saw no evidence that the firm did so.

In An Ombudsman’s View of Good Costs Service, we explain that it’s good to tell clients about the possibility of costs that might happen in the future, but, if the costs then do need to be charged, the lawyer must tell the client that this is happening. The firm didn’t do that here, and we decided it was reasonable for Mr A and Ms B to expect the cost of the firm’s work was 35% of the settlement. So, when the agreement included the employer paying an amount equivalent to 35% of Mr A and Ms B’s legal costs, Mr A and Ms B were entitled to believe that was their debt to the firm paid.

The Ontario model would mean that the firm had been paid once and in full, and that was enough. On the cost information point, a key feature of our guidance is that a client should never be surprised by the bill they receive from their lawyer, and it was clear to us that Mr A and Ms B were.

We decided that the fair thing to do was to say that the firm’s fees should be limited to the amount recovered from the employer, so Mr A and Ms B should not have had any deduction from their settlement for the firm’s fees.

Our final decision was that the firm should refund the 35% it deducted from the settlement (£36,225, including VAT), plus 3% interest on that (£2,391.53) and compensation of £600 for the inconvenience and upset caused, making a total remedy of £39,126.53.

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