Determination Decisions

The SLCC has chosen to publish Determination decisions as we believe this is useful information for both potential complainers and practitioners.

While we hope that this demonstrates better transparency of our process, we need to balance that transparency with our duty to protect confidentiality. Because of that, we publish anonymous complaint information and have, as far as possible, removed any identifying features.

It is also important to bear in mind that information given about a complaint is only a brief summary of the Determination Committee’s findings. In making decisions, consideration will have been given to specific facts and circumstances which, again for reasons of confidentiality, cannot be provided here. We hope, however, that the published information is sufficient to benefit both potential complainers and also those who provide legal services.  

Where a complaint has been upheld, the total amount we can award is capped at £20,000. Where compensation has been awarded, we have indicated under which of the following levels and bands that compensation falls:

Compensation for actual loss (quantifiable):                                             

Level

Range

Level 1

£1-£299

Level 2

£300-£649

Level 3

£650-£999

Level 4

£1,000-£4,999

Level 5

£5,000-£9,999

Level 6

£10,000-£14,999

Level 7

£15,000-£20,000

Compensation for inconvenience, distress and loss of opportunity:

Banding

Range

Band A

£1-£150

Band B

£151-£750

Band C

£751-£1,500

Band D

£1,501-£5,000

 

Our most recent decisions are available on a searchable decisions database.

 

Determination Decisions: January - March 2017

Upheld and part-upheld decisions

Decision no Business Area Complaint detail Outcome
17/01 Conveyancing Complaint regarding a former firm. The complainer complained that the firm had (1) failed to provide accurate information before the purchase; and (2) failed to act in the best interests by failing to highlight a burden in the title deeds which related to access.   The complaint was upheld. The Committee found evidence that the former firm had provided inaccurate advice regarding access rights over the property. The Committee also found no evidence that the former firm had advised the complainer regarding the numerous burdens attached to the title for the property. The Committee were satisfied that there was evidence of a breach of Article 2 of the Service Standards relating to diligence and of inadequate professional service. The Committee directed that the former firm's fees should be reduced to nil and that it should refund £970 fees paid (VAT inclusive). The former firm were also directed to pay Band D compensation for inconvenience and distress.  The Committee determined that a complaints levy of £1700 was appropriate.
17/02 Family Complaint regarding a former firm. There were 10 issues of complaint, 5 were conduct issues so the Committee did not examine them. The remaining complaints were that: (1)  the solicitor failed to communicate effectively in failing to advise when correspondence was received from the other side's solicitors despite having the correspondence for approx 2 months; (2) there was a delay in responding to this correspondence; (3) letters and emails were sent containing inaccuracies; (4) there was a failure to act on instructions contained in an email requesting that a letter of settlement be sent to the other side, failing which court proceedings would be raised; and (5) there was a failure to communicate effectively in that there was a failure to acknowledge a number of emails and telephone calls made on different dates.  The Committee considered issues (1 )and (2) together and found no evidence in the firm's correspondence file that they made any contact with the complainer or with the other side in this time. The firm did not respond to the letter until they had received a reminder from the other side. Although failure to respond to a single letter on its own would not amount to inadequate professional service, the substance of the letter was to consider matters fundamental to the divorce case and the delay in responding resulted in a delay in progressing matters. The firm provided an inadequate professional service and this amounted to a breach of the Service Standards for Solicitors, the principles of Diligence and Communication. Issue (3) was upheld. The firm made repeated errors which caused delays and letters of correction were required. The Committee were of the view that although the errors were relatively minor, collectively they demonstrated a pattern which would have caused the complainer to have concerns about the competence of the firm and their ability to act in their best interests. Issue (4) was upheld. The complainer provided clear instructions by email and was not informed whether the instructions were carried out or of any reason why the instructions were not being followed. A solicitor is expected to act in the best interests of the client and this would include keeping clients informed about instructions that could not be taken due to the position of the firm. Issue (5) was partially upheld. During a 4 week period, the firm responded to communication from the complainer regularly. During this period of time the firm did not delay in communicating or fail to acknowledge correspondence. However, the firm failed to inform the complainer that they had ceased trading or offer any explanation of how this could affect their ability to carry out work. This aspect of the complaint was partly upheld. The Committee further found, on the balance of probabilities, that the firm failed to communicate for a further period of 5 weeks. During this period the complainer made numerous attempts to ascertain if the instructions given previously had been received and actioned. This failure to communicate effectively resulted in inadequate service being provided amounting to a breach of the Service Standards. All issues were upheld against the former firm. The Committee awarded Level 2 compensation for actual loss, and Band D compensation for inconvenience and distress, along with a 100 % rebate of fees amounting to £350. The Committee agreed that a complaints levy of £2000 was appropriate in the circumstances of the case. 
17/02 Litigation The complainer complained that the solicitors - (1) failed to progress the case, (2) failed to carry out instructions as contained in a particular letter, (3) failed to respond to letters; and (4) inappropriately cancelling a scheduled meeting. The Committee upheld only issue 1. The Committee found no indication on the file that the complainer's case was progressed over a period of 9 months. In the absence of any explicit instructions from the complainer to put matters on hold, the firm's failure amounted to a breach of the requirements of Article 2 of the Service Standards in relation to diligence. The Committee awarded Band B compensation for inconvenience and distress, along with a 100 % rebate of fees amounting to £350. The Committee agreed that a complaints levy of £100 was appropriate in the circumstances of the case.  
17/04 Conveyancing Complaint regarding a former firm. The complaint was that the practitioner and/or the former firm had- (1) failed to ensure that the title to the property included an explicit right of access over the ground immediately to the front of the property and failed to register a right of access in the complainer's favour over that area of ground and; (2) failed to advise adequately at the time of the purchase about the ownership of the area of ground to the front of the property and about the responsibility for maintenance of the drains and driveway. The Committee partially upheld issue (1). Although there was no requirement to ensure or register any rights of access, there was a failure to make the complainers aware that the ownership and access rights pertaining to these areas was unclear. The Committee were of the view that the failure to communicate this uncertainty prevented the complainers from making an informed decision regarding whether any further action was required to protect their position at the time of purchase.  Issue (2) was also upheld.  It was reasonable to expect the former firm to provide advice on the ownership, access to and maintenance of the area as part of the conveyancing transaction. There was no evidence of any such enquiries being made in the former firm’s file or of the results of any such enquiries being communicated to the complainers. Accordingly, in respect of both issues the Committee agreed that there was a breach of the Service Standards in relation to Diligence and Communication and evidence of inadequate professional service. The Committee directed that the former firm should pay the complainers Band B compensation for inconvenience and distress, Level 4 compensation for actual loss and should refund 50% of the fees charged, amounting to £480 VAT inclusive. The Committee directed that the former firm should pay a complaints levy of £2000. 
17/05 Conveyancing The complaint was that the named solicitor and firm- (1) failed to communicate adequately with the complainer as the complainer had only received three pieces of written correspondence from them in a year. The Committee agreed there was a failure to communicate regularly with the complainer. The Committee identified a number of occasions where it considered it would have been appropriate for the firm to have written to the complainer, such as when a discrepancy in the title was noted, following a site meeting when the complainer was not present, when loan instructions were issued by the complainer's lender, when it became apparent that several new title deeds plans were required and when the imminent expiry of the loan from the complainer's lender became an issue. The Committee decided there was sufficient evidence to uphold the complaint s inadequate professional service. The Committee directed the firm to pay compensation to the complainer of Band A for inconvenience and distress. The Committee agreed that the appropriate complaints levy in this case was Nil.
17/06 Employment  The firm acted for the complainer in grievance and tribunal proceedings. The complaint was that (1) The practitioner failed to advise of the implications of the introduction of Section 111A of the Employment Rights Act 1996 and how this impacted on the complainer's existing whistle blow claim; and (2) The practitioner failed to provide advice on the legal status of the complainer's employer’s actions in failing to process job applications and applying site access restrictions and how these actions affected the employment dispute. The Committee upheld issue (1). The firm accepted that they had not advised about the coming into force of the new provision. Having considered the circumstances of the case, and the application of the ACAS code of practice on settlements, the Committee found that the new provision did not affect the complainer's negotiating position or ability to pursue any future Employment Tribunal action for whistle blow in any meaningful way. However, in neglecting to advise of it, the firm failed to ensure that the complainer had all of the relevant information to enable them to make fully informed decisions with respect to those discussions. The firm did not act competently or diligently in failing to advise of the coming into force of the new provision and also failed to communicate effectively in relation to this matter. There was evidence of a breach of the Service Standards in relation to Competence, Diligence and Communication and of inadequate professional service. Issue (2) was not upheld. The firm provided advice in relation to the employer’s actions in failing to process job applications and in imposing restrictions to access to company premises and the company IT network. The Committee found no supporting evidence to suggest that no other competent solicitor, acting reasonably, would have exercised their professional judgment in the same way. The Committee directed that the firm pay the complainer compensation in Band A for inconvenience and distress and directed that a nil levy was appropriate in this case.
17/07 Litigation The complaint was that the firm and/or the named solicitor had (1) issued invoices for work which duplicated charges already made, (2) failed to timeously cancel the attendance at court of two witnesses, following resolution of the litigation, leading the complainers to incur additional expenses in respect of the witnesses fees, (3) failed to take steps to recover expenses on the complainer's behalf in respect of a pre-proof award in their favour; and (4) provided contradictory information regarding monies that the firm claimed were owed to them.  The Committee did not uphold issue (1). The Committee found that there was an element of duplication between the two invoices referred to. There was a period of almost eight months between the date of the second invoice and any query being raised. By the time the complainers queried the matter the firm had not only withdrawn from acting but had also raised their own action against the complainers. Although the duplication was unfortunate it did not of itself constitute inadequate professional service. The Committee partially upheld issue (2). It was not in dispute that the firm had the opportunity to timeously countermand the citation for witness A and failed to do so. There was evidence of a breach of Article 2 of the Service Standards in relation to Diligence and evidence of inadequate professional service. The evidence in relation to whether witness B's citation had been timeously countermanded was contradictory. On balance, the Committee was of the view that there was insufficient evidence for it to conclude that the firm failed to timeously countermand witness B's citation. The Committee upheld the issue as it related to witness A but not as it related to witness B. The Committee did not uphold issue (3). The firm had advised the complainers on numerous occasions that they were required to make payment or to put forward satisfactory payment proposals regarding fees if the firm was to continue to act. The complainers failed to do so and, consequently, the firm was entitled to decide not to undertake any further work on their behalf, including any work to advance recovery of expenses. This was communicated effectively. In the circumstances there was no evidence of any breach of Articles 2 or 3 of the Service Standards or of inadequate professional service.  The Committee did uphold issue (4). The Committee found that there was a mistake in the letter sent to the complainer which was not rectified for six months. Whilst a one off error would not amount to a breach of the Service Standards, in the circumstances in which there had already been an error in respect of duplication of fees, this did amount to a failure to act diligently and communicate effectively. There was evidence of a breach of Articles 2 and 3 of the Service Standards and evidence of inadequate professional service. The Committee directed that the firm should pay compensation within Band B to the complainers for inconvenience and distress. The Committee concluded that witness A was entitled to demand payment of the sums due from the complainers. In these circumstances, the payment of the sums due was clearly an action that could be said to be in the complainers interests in accordance with section 10(2)(c) of the Act. The Committee determined that the firm should pay the sum due (falling within Level 2 in terms of quantifiable loss) directly to witness A. The Committee determined that a complaints levy of nil was appropriate in the circumstances of the case.
17/08 Conveyancing The complaint alleged that the named practitioner and/or the firm had- (1) incorrectly advised that the Registers of Scotland would not rectify their error; and (2) incorrectly advised that the offer of compensation from the Registers comprised for the loss of the land as well as the legal costs of putting in place an express right of access. However, it later transpired this was not the case.  The Committee did not uphold issue (1). The evidence showed that the consistent position of Registers of Scotland was that despite their error, they would not rectify the title and the complainers were advised of this position by the Firm. The Committee did uphold issue (2). The named practitioner incorrectly advised the complainer's parent that the offer from Registers of Scotland comprised of £x amount plus the legal costs of putting in place an express right of access. There was evidence of a breach of the Service Standards in relation to Diligence and Communication and of inadequate professional service. The firm was directed to pay Band C compensation for inconvenience and distress. The Determination Committee directed that a nil levy was appropriate in this case.
17/09 Conveyancing The complainer complained that the named solicitor and/or firm acting for the complainer in the purchase of a property- (1) incorrectly stated on a number of occasions that issues that arose with the central heating boiler in the property and that required repair/replacement would be the responsibility of the sellers; and (2) unduly delayed in sending a heating engineer's report, received by the named solicitor and/or firm for approximately 6 weeks. The Committee agreed that there was evidence of inadequate professional service and determined that issues (1) & (2) be upheld. The Committee agreed that given the nature of the problem with the central heating system changed after the firm was first notified of a problem, the initial general advice by the firm should have been re-evaluated to take account of this. The Committee's view was that there was a lack of considered advice to the complainer on the complainer's options and possible outcomes as matters progressed. The Committee was also satisfied that the evidence showed there was a delay by the firm sending the heating engineer's report to the agents acting for the sellers and there was a failure by the firm to keep the sellers' agents informed of the nature and extent of the complainer's claim as a result of the delay in sending the said report. The Committee decided that the firm should pay to the complainer compensation of Band B for distress and inconvenience. The Committee also decided that the firm was not entitled to charge the complainer for any fees or outlays in respect of the post-completion work regarding the boiler and it directed the firm to waive its right to charge such fees or outlays. The Committee directed the firm to pay a Complaints Levy of £750.
17/10 Family The complainer alleged that the named practitioner and/or the firm had- (1) inappropriately advised them not to insert a time scale or a limit for marketing the marital home in the separation agreement, despite a request to do so, (2) inappropriately advised them not to push for their former spouse's wage slips/vouching to verify the former spouse's financial position, despite the possibility of obtaining this information from their employer, (3) inappropriately advised them not to specify access dates in respect of contact with the children within the separation agreement, despite a request to do so; and (4) failed to respond to a complaint within a reasonable time scale.   The Committee upheld issue (1).The Committee was of the view that the nature of the case (in which the major matrimonial assets were located abroad and the other party was living abroad) should have alerted the firm to the possibility that there would be difficulties in enforcing the agreement. The firm failed to ensure the inclusion of a clause in the agreement that would have allowed for it to be enforced timeously. There was evidence of a breach of Article 2 of the Service Standards and of inadequate professional service. The Committee did not uphold issue 2.  The firm’s file contained evidence that they had obtained appropriate vouching in relation to the former spouse’s income and financial position. The Committee did not uphold issue 3. The evidence demonstrated that the terms of the agreement regarding contact were discussed with the complainer on two occasions and that the firm negotiated the terms of the agreement as instructed. There was no evidence that the firm was instructed to specify access dates. The Committee upheld issue 4. The firm did not respond appropriately to a written letter of complaint. The letter outlined the complaint in sufficient detail to make the substance of the complaint known to them. The firm failed to either investigate the complaint or to consider whether it was appropriate to continue acting.  The firm was directed to pay band C compensation for inconvenience and distress and to refund fees already paid of £480 to the Scottish Legal Aid Board along with abating fees still outstanding by £550. Taken together these fee refunds and abatements amounted to an 85% reduction in fees and outlays. The firm was also directed to pay a complaints levy of £1500.
17/11 Executry This is a third party complaint. The Complainer complained that the firm- (1) failed to clarify/specify/identify a specific bequest in the will that the testator had instructed, (2) acted inappropriately by failing to retain a copy of the testator's previous will. In relation to the firm's administration of the estate it was further complained that the firm, (3) failed to communicate effectively with the complainer's solicitors by failing to acknowledge or respond to their letter within a reasonable timescale, (4) failed to communicate effectively with the complainer's solicitors by failing to acknowledge or respond to their letter of complaint, within a reasonable timescale; and (5) failed to communicate effectively by using incorrect figures in the fee they charged. The Committee upheld issue (1). The firm produced a will for the testator which had omitted the details of a specific bequest that was instructed. The firm failed to ensure that the testator's instructions and testamentary wishes were followed which was contrary to their late client's best interests. The Committee found that there was evidence of a breach of Article 2 of the Service Standards and an inadequate professional service being provided to the testator which directly affected the complainer as they were deprived of the specific bequest to them.  The Committee did not uphold issue (2). The firm had either destroyed or lost the previous will after the final will was signed. The previous will was legally invalid, there was no duty on a firm to retain a copy of it and the destruction of such documents is standard legal practice. The Committee upheld issue (3). The firm delayed by around three months in responding to a query from the complainer's solicitors. The query was regarding the will and this was directly related to the administration of the estate. The firm failed to act in the best interests of their client, the Executor, by failing to respond to the query promptly. The Committee found that the complainer was directly affected by this inadequate professional service as the query from their solicitors was regarding their entitlement under the will. The Committee upheld issue (4). The firm should have provided a prompt response to the letter of complaint but failed to do so. This was not in the Executor’s best interests. The complainer was directly affected by this inadequate professional service as it resulted in a delay in their complaint being considered. The Committee did not uphold issue (5). Despite requests the complainer had not clarified precisely what the complaint was. The firm was directed to pay the complainer band C compensation for inconvenience and distress. The Committee directed that a Nil complaints levy was appropriate in this case.
17/12 Executry This is a third party complaint. The Complainer complained that the firm acting in the executory of X- (1) inappropriately allowed the cremated remains of X to be interred in the complainer's family plot without the knowledge or consent of the complainer as registered owner of the plot; and (2) failed to make the necessary enquiries to discover who held the registered certificate of the plot and therefore the successor to the lair in order to obtain the necessary authority.  The  Committee decided that issue (1) should not be upheld and that issue (2) should be upheld. In respect of issue (1), there was a divergence of view as to the correct interpretation of the Local Authority's Regulations for the Management of Burial Grounds. That matter is presently the subject of a court action and the Committee agreed that the court is the appropriate forum for the issue to be decided. The evidence provided did not support the complainer's assertion that their knowledge or consent was required before the ashes of X were interred in the plot. In respect of issue (2), there was evidence of a breach of communication and diligence by the firm to the firm's own clients (the executors of X) which amounted to inadequate professional service to the firm's own clients and the complainer was directly affected by said breach. The Committee decided that the firm should pay to the complainer Band B compensation for inconvenience and distress. The Committee decided that the appropriate complaints levy to impose on the firm in this case was Nil.

Not upheld decisions

Decision no Business Area Complaint detail Outcome
17/13 Executry One of the two Executors complained that solicitors and/or the firm had: (1) failed to fully implement a mandate requesting all Titles, Wills, Investment Certificates and any other documents including files; (2) a named solicitor did not advise the Executors of their duty to distribute the residue of the estate as soon as reasonably possible or assist them in doing so; (3) The firm failed to properly account for client funds. The named solicitor produced a flawed account and never corrected it nor did that solicitor provide any explanation despite this information being repeatedly requested; and (4) the named solicitor wrongly charged the Estate for the Law Accountant who assessed their files at the solicitor's request despite a clause of their Terms of Business stating this would be the liability of the firm.  The Committee did not uphold any of these complaints for the following reasons: (1) While the firm did initially fail to provide all files and relevant documents covered by the mandate, there was no evidence to suggest it was anything other than an oversight which was rectified swiftly once identified; (2) There was no evidence to suggest that distribution of the Estate could or should have been done earlier. The evidence suggested that the complainer was fully aware the appropriate order of distribution explained by the firm, and the evidence demonstrated that they understood and accepted that; (3) The firm had made the position clear to the complainer about the account being a draft and something which was to be updated. The evidence demonstrated that the firm responded to requests and provided information up to the time that the firm withdrew from acting and there was no breach of the Service Standards of Diligence, Competence and Communication; and (4) The firm charged the outlay in accordance with their updated Terms of Engagement. The evidence did not demonstrate that the estate was wrongly charged. There was no breach of the Service Standards of Diligence. 
17/14 Crime The complainer complained that the named solicitor (1) failed to inform the local agent appearing in court on behalf of the complainer of the complainer's previous convictions despite the complainer having told the named solicitor about those in a specified telephone conversation; and (2) failed to turn up at court to represent the complainer on three specified dates. The Determination Committee decided that issues (1) and (2) should not be upheld for the following reasons - In respect of (1) the evidence provided did not support the allegation of the complainer that they had advised the named solicitor of their previous convictions and that the named solicitor failed to pass this information on to the local agent. In respect of (2) there was no formal agreement for the named solicitor to represent the complainer on the first specified court date. In respect of the later two specified court dates, the complainer was represented by local agents instead of the named solicitor.
17/15 Conveyancing The complainer purchased a property with "stunning panoramic views" but found that these views were affected by a nearby development which commenced after the property was purchased. It was alleged that the named practitioner and/or the firm (1) failed to act in the complainer's best interests by failing to challenge false information provided by the seller's solicitor regarding the panoramic views available, despite them knowing that the nearby land had Outline Planning Permission. It was also alleged that they failed to challenge the inadequate search results in the Property Enquiry Certificate received from the seller’s solicitors; and (2) failed to advise the complainer about carrying out additional searches to establish if there were any non-local authority plans or proposals.  Neither issue was upheld. The Committee found that the firm had clearly explained at the outset of the transaction the responsibilities and obligations imposed on the complainer as a purchaser. The firm had undertaken all the required searches and had requested that the complainer contact the firm if there were any matters of concern. There was nothing in the Property Enquiry Certificate to suggest that it was in any way inadequate, inaccurate or that it could not be relied upon. The Committee was of the view that it would have been prudent for the firm to have further highlighted the need to take additional steps to establish the likelihood of future development in the near vicinity. Nonetheless, the firm’s failure to do so was not sufficient to establish, on the balance of probabilities, that there had been inadequate professional service in this case. There was no evidence of a breach of the Service Standards in relation to Diligence or Communication and no evidence of the provision of an inadequate professional service.
17/16 Power of Attorney The complaint was made on behalf of the complainer's parent against a firm/and or the named practitioner who had prepared a power of attorney for the parent. It was alleged that- (1) the practitioner failed to act in the parent's best interests by preparing a document which granted power of attorney in favour of the complainer and a sibling 'jointly', as opposed to 'jointly and severally'; and (2) the practitioner failed to communicate effectively with the parent, in that they did not adequately explain and ensure that the parent understood what action the power of attorney would allow the complainer and their sibling to undertake on their behalf.  The Committee did not uphold issue (1). There was evidence from the firm's files that the practitioner had explained the different basis of instruction and that this was communicated effectively, both in writing and orally, to the parent. The practitioner had acted upon instructions given by the parent. There was evidence that the parent had instructed the power of attorney to be prepared on a joint basis even if this might cause delay or complications. There was no evidence of any breach of the Service Standards or of any inadequate professional service. Issue (2) was not upheld. There was evidence in the firm’s file that the parent had been advised in clear terms on the implications of ‘joint’ rather than ‘joint and several’ appointment of the nominated attorneys. There was no evidence that the parent had requested any clarification or expressed any concern regarding the options and both attorneys had accepted the appointment. There was no evidence of a breach of the Service Standards or of any inadequate professional service.
17/17 Conveyancing The complainers complained that the solicitors/firm - (1) failed to advise the complainers adequately about a clause in the missives and failed to follow the instructions that the complainers required all necessary building consents for all alterations to the property, including the attic, to be obtained; (2) failed to inform the complainers of the risk that the attic would not comply as living accommodation despite being aware that it was clearly presented and being used as such and (3) the named solicitor and/or firm allowed missives to be concluded prior to obtaining the results of the searches and without receiving the confirmation the complainers had requested.  The Committee did not uphold the complaint. In respect of issue (1) the missives clearly set out that work carried out to the attic was specifically excluded from the undertaking of the sellers to provide a clear Property Inspection Report and the evidence indicated that the complainers had accepted the position regarding the missives. In respect of issue (2), the Committee was satisfied there was never any risk or question of the attic being, or being made, compliant for use as living accommodation and negotiations were ongoing between the sellers and the complainers during the course of the transaction in relation to this matter and a settlement was reached. In respect of issue (3), there was no agreement between the parties nor any obligation on the firm to delay the conclusion of the missives pending receipt of the Property Inspection Report.  
17/18 Litigation The complaint was that (1) The firm/and or practitioner failed to advise correctly, during an initial telephone consultation, in that they assured the complainer that recall of decree was achievable and that all legal expenses and further costs could be recouped, (2) The practitioner failed to follow the complainer's instructions that it was not commercially viable to undertake any work if there was any doubt in the legalities and that the only important matter was to have the decree recalled; and (3) The firm and/or the practitioner failed to provide correct advice as they failed to check the dates of the decree, the recall of which later proved to be time barred. The complaint was not upheld. In relation to issue (1) the Committee found no supporting evidence that the firm had assured the complainer the recall of decree was achievable and that all legal expenses and further costs could be recouped. In relation to issue (2) the Committee was of the view that any such instruction was superseded by later instructions. The firm clearly advised the complainer of the likely difficulties in trying to recall the decree. Following this advice, the firm was instructed to enter into negotiations with the other side to see if they would be willing to recall their own decree. In addition, the complainer sought, and was provided with, advice on how to restore their credit rating and advice in respect of further sums sought by the other party. In relation to issue (3) there was no suggestion or evidence that the complainer provided the firm with the date of the decree during their telephone call. The Committee found no evidence that the firm was instructed to proceed with any work on the complainer's behalf, such as checking the date of the decree, before the firm's email with initial advice. The Committee did not find any evidence of any incorrect advice being provided, or any evidence to support a breach of the Service Standards. There was no evidence of inadequate professional service.
17/19 Crime The complainer complained that the firm had (1) failed to communicate effectively as they did not explain to the complainer what offences they had actually been charged with, (2) failed to act in the complainer's best interests as the practitioner did not attend a scheduled hearing at the Sheriff Court on a specified date; and (3) failed to act in the complainer's best interests in that they did not challenge the Procurator Fiscal in relation to the CCTV evidence referred to during the trial. The Committee did not uphold the complaint. In relation to issue (1) there was evidence to suggest that the practitioner had taken steps to clarify what offences the complainer was being charged with. The discussion suggested that the complainer was aware of the charges. Regarding issue (2) the Committee was satisfied that the firm admitted that they had wrongly diarised the date of the hearing. However, the practitioner still attended court, arriving one hour before the case was called. It would have been best practice for the practitioner to have been in attendance at court on time. However, given that they were able to attend immediately and that the case was already prepared, there was no prejudice to the complainer's case and the failure did not amount to an inadequate professional service. In relation to issue (3), the issue concerned CCTV evidence which appeared to have been edited. There was evidence that the firm discussed the gaps in the CCTV footage with the complainer who had agreed that - notwithstanding the gaps in the footage - the CCTV footage made out some of the charges. There was evidence that the practitioner had acted upon instructions to enter into discussions with the Procurator Fiscal and had advanced the complainer's position in discussions with the Procurator Fiscal. In deciding how best to take the case forward the practitioner was exercising their professional judgement. In this case there was no evidence that no other competent solicitor, acting reasonably, would have exercised their professional judgement in the same way. There was no evidence of a breach of Article 2 of the Service Standards or of inadequate professional service. 
17/20 Personal injury The complainer complained that the firm- (1) failed or delayed to progress the complainer's claim because it took the firm three years after the incident to advise the complainer that they would not be proceeding with the claim, (2) failed to provide the complainer with an acceptable explanation or reason why it had taken three years to advise that they would not be proceeding with the complainer's claim, (3) inappropriately advised the complainer that there was a lack of clarity around the cause of the incident despite the complainer providing a full and comprehensive account of the details surrounding the incident including photographs and a witness statement; and (4) either lost or mislaid the complainer's evidence  The Committee agreed that there was no evidence of undue delay or failure by the firm to progress the complainer's claim. Any delays identified were caused by third parties and the firm was proactive in seeking to minimise those delays. The Committee was also satisfied that the firm provided the complainer with regular updates about the complainer's case and provided the complainer with a timeous and clear explanation as to why they would not be proceeding with the claim. The Committee agreed that given the evidence provided to the named solicitor, it was not inappropriate for the named solicitors to advise the complainer that there was a lack of clarity around the cause of the complainer's fall. The Committee was satisfied that the complainer has not specified what evidence they considered had been mislaid and there was no evidence that the information and evidence provided to the firm by the complainer had been lost or mislaid. The Committee agreed that there was no evidence of inadequate professional service and it determined that the complaint should not be upheld. 
17/21 Company & Commercial Law The complainer complained that the firm  had (1) inappropriately advised that there was no need to disclose to a potential buyer of the complainer's business the existence of a dispute with a locum, (2) failed to act in the complainer's best interests by allowing a warranty clause regarding disputes to remain in the draft Business Transfer Agreement when they were aware of the dispute with the locum, (3) failed to advise adequately with regard to the dispute with the locum in that they initially advised the complainer that it was acceptable to only pay a proportion of the locum's invoices and then advised the complainer to lodge a counter claim rather than try to settle the dispute at a compromise figure.  The Committee did not uphold the complaint. In relation to issue (1) the Committee was satisfied that the complainer was aware of the warranty clause in the draft business transfer agreement concerning any disputes. There was evidence that the firm and the complainer discussed the risks of disclosing or not disclosing the dispute. On balance, the Committee was satisfied that the complainer was aware of the risks and decided not to disclose the existence of the dispute.  In relation to issue (2) the firm did not seek to have the warranty clause regarding disputes removed from the draft business transfer agreement. There was no evidence that the complainer had instructed the firm to seek the removal of the clause. In relation to issue (3) the Committee found no independent evidence to support the complainer's position that the firm had advised paying only a proportion of the disputed invoices. The Committee was satisfied that the options of raising a counter claim and/or attempting to try to settle the matter by negotiation were discussed with the complainer and that in undertaking both these actions the firm was acting in accordance with instructions given. There was no evidence of a breach of the Service Standards or of inadequate professional service in relation to any issue of complaint. 
17/22 Executry This is a third party complaint. The Complainer complained that the firm- (1) had not registered the will, despite the firm writing to the client stating that all matters relating to the will were finalised and that the firm would retain the principal will for safeguarding.   The complaint was not upheld. The Committee found that the former firm had drafted the will in 1997. The Committee found that there was no evidence that the former firm had been instructed to register the will at the time that it was prepared. In any event, the Committee was satisfied that there was no established practice in Scotland of registering a will and there was therefore no requirement to register the will. The Committee additionally considered whether the firm had breached the duty of diligence in failing to keep the principal will safely. The principal will had been lost at some point between 1997 and 2015.The Committee noted that all the former firm's files were transferred to the Judicial Factor (and then subsequently to another firm) in 1999. No inventories of any files transferred were in existence. Based on the available evidence, the Committee could not determine whether there was any failure on the part of the former firm to retain the will or whether the loss of the will took place after the appointment of the Judicial Factor. 

 

Determination Decisions: October - December 2016

Upheld and part-upheld decisions

Decision No. Business Area Complaint detail Outcome
16/74 Crime This was a third party complaint where the complainer alleged that they had not been advised by the firm when to attend court in relation to a criminal trial.  The Committee found that there was a dispute in evidence relating to whether or not citations had been sent. The file showed that citations had been prepared but there was no proof they had been sent. They were only prepared a week ahead of the dates for which the complainer was cited when the complainer and one other witness were living abroad. On the balance of probabilities the Committee found that the firm had not sent, and the complainer had not received, any citation and that the complainer was advised of the dates they were to attend court by the defendant in the case. The Committee found that the failure to prepare citations in sufficient time to allow normal service of citations to take place was a breach of the service standards 2008 in relation to diligence and was a failure to act in the client's best interests. The complainer, a witness, was directly affected by the failure as they were left with little time to arrange their affairs in order to attend court.

The Committee decided to uphold the complaint and directed the firm to pay compensation in Band A for inconvenience and distress. The Committee agreed that the complaint should attract a complaints levy of Nil.
16/75 Litigation The complainers complained that the solicitor: (1) failed to return numerous telephone calls made by them; (2) provided incorrect advice to the complainers in respect of their claim; (3) delayed/failed to send appropriate information to the Scottish Legal Aid Board (SLAB); (4) failed to deal with letters received by the complainers from SLAB; (5) delayed/failed to inform the complainers that he had received a settlement offer from the third party; (6) incorrectly raised the action against the wrong third party; (7) unduly delayed in passing the complainers' paperwork to their new solicitor despite being provided with a mandate to do so; (8) delayed/failed to inform the complainers about a court hearing and did not give them sufficient notice of this withdrawal to let them appoint a new solicitor; and (9) failed to inform the complainers that the solicitor's firm was being taken over by another firm of solicitors.
 
The Committee was satisfied there was: evidence of a failure to return the complainers' telephone calls; evidence of a failure/delay to send appropriate information to SLAB and to deal with letters received by the complainers from SLAB; a failure to let the complainers know that the solicitor received a settlement offer from the third party; evidence that the action was raised against the wrong third party; evidence of a delay in passing the paperwork to the new solicitors acting for the complainers and evidence of a delay in letting them know about a court hearing.

The Committee was satisfied that these failures and delays amounted to inadequate professional service so these aspects of the complaint should be upheld.

The Committee was satisfied that there was no evidence that the solicitor provided incorrect advice to the complainers in respect of their claim. As the solicitor's firm merged with another firm after the solicitor withdraw from acting for them, there was no requirement for the solicitor to let the complainers know about the merger. Accordingly, these aspects of the complaint were not upheld.

The Committee decided that the solicitor's firm should pay compensation of Band D to the complainers for the inconvenience and distress caused by the inadequate professional service. The Committee also decided that the solicitor's firm should compensate the complainers for the expenses awarded against them in respect of their court action should the expenses be quantified and pursued (up to a maximum of Level 7). The Committee also imposed a levy of £1,500 on the solicitor's firm.
16/76 Litigation The complainer complained that the solicitor: (1) inappropriately charged the complainer for Sheriff Officers to serve a summons at a cost of £300, when the complainer had personally served the summons on the defender; (2) mistakenly provided the wrong dates to attend court to a vital witness who was to give evidence on the complainer's behalf; (3) failed to lodge vital documents in court; (4) ignored instructions to discredit the defender by questioning them about various specified issues; and (5) failed to represent the complainer in court at a hearing held after the defender asked the court to change the awarded expenses. The solicitor was notified by the court in May and July 2014 of the hearing but failed to inform the complainer of this hearing or the refusal to argue against the defender’s request. In relation (1) the firm provided supporting evidence that they approached the Court to seek a fresh warrant to serve the summons on 12 November 2014, demonstrating that they were unaware of the summons previously being served. There was no evidence that the firm had instructed Sherriff Officers, no invoice held within the firm’s file relating to the payment of fees to Sheriff Officers and no supporting evidence that the complainer was charged a fee of £300 for the engagement of the Sheriff Officers. There was also no supporting evidence that the complainer had served the citation personally. There was no evidence that the firm provided an inadequate professional service or that they breached the Service Standards and the issue was not upheld.
 
In relation to (2) the firm admitted citing all witnesses for the wrong date. The firm stated that they had subsequently discussed the possibility of part-hearing the evidence and seeking to lead evidence from the witness on a different date with the complainer but there was no supporting evidence of this. The complainer was entitled to expect that the witnesses appearing in support of the case would be cited correctly. Failing to cite witnesses correctly in this circumstance amounted to inadequate professional service and a breach of the Service Standards, the principle of Diligence and the issue was upheld.
 
In relation to (3) the complainer provided the firm with information that they felt was crucial to proving the case. While the solicitor had used his professional judgement in deciding not to present the material to the court, the Committee found that the firm did not communicate clearly and this failure to manage the client's expectations appropriately amounted to inadequate professional service and a breach of the duties of Communication and Diligence and the complaint was upheld.

In relation to issue (4) the firm failed to acknowledge receipt of information from the complainer and there was no supporting evidence that it informed the complainer prior to the court hearing that it was not going to follow the instructions given. In failing to keep the complainer informed, the firm provided inadequate professional service and breached Articles 2 and 3 of the Service Standards. The complaint was upheld.

Issue (5) was partially upheld. The firm continued to correspond with the court and informed the court of their intention not to oppose the expenses. While there was no supporting evidence that the firm had been instructed to appear at the hearing, or that they agreed to do so, by failing to notify the complainer of the issue with the expenses in good time, the firm had provided an inadequate professional service which amounted to a breach of the duty of Communication.

The Committee directed that the firm should pay the complainer Band B compensation for inconvenience and distress. The Committee determined that a nil complaints levy was appopriate.
16/77 Litigation The complainers complained that the named solicitor and firm (1) failed to provide the correct information to The Scottish Legal Aid Board (SLAB) about the financial circumstances of the complainers in relation to a court action against the complainers by their Landlord and (2) failed to advise the complainers before the court hearing that legal aid had not been granted.
 
 


 


 


 
The Determination Committee was satisfied in respect of (1) that the application form containing financial information was submitted to SLAB and was signed by the complainers. The Determination Committee agreed there was no evidence that the complainers advised the firm or the named solicitor that any of the information in the application form was not correct. The Determination Committee was satisfied that there was no breach of the 2011 Service Standards by the named solicitor or the firm in respect of (1) and that it should not be upheld.

The firm had admitted that it had not told the complainers before the court hearing that legal aid had not been granted. The Determination Committee decided that there was sufficient evidence to uphold issue (2) as inadequate professional service.
 
The Determination Committee therefore decided to uphold the complaint in part and directed the firm to pay the complainers compensation of Band A for inconvenience and distress. The Determination Committee decided also to impose a levy of Nil on the firm.
16/78 Litigation The complainer complained that the named solicitor and firm: (1) failed or delayed to establish who was to be pursued in the complainer's claim, despite working on the complainer's case for fifteen years; (2) failed or delayed in progressing the complainer's case to a proof; (3) failed to clarify the meaning of a specific term contained in the complainer's contract of employment and failed to answer the complainer's question about whether or not the personal injury insurance of the complainer's former employer was sufficient or fit for purpose; (4) failed to locate or recover any outstanding insurance money despite having copies of the former employer's insurance policy and the complainer's release form; (5) failed to advise the complainer that the company the complainer had a claim against had been dissolved; and (6) failed to recognise that a company was a temporary overseas office run by the complainer's former employers despite the complainer telling the named solicitor this on several occasions.
 

 
 
The Committee was satisfied that issues (1), (4), (5) and (6) should not be upheld as in (1) there was no evidence of any failure or delay by the named solicitor or firm, in (4) the evidence showed the complainer agreed with the named solicitor that no monies were outstanding or due to him, in (5) there was no obligation on the named solicitor or firm to communicate to the complainer that the firm had been dissolved, as this had no immediate relevance to the existing court action, and in (6) there was no evidence that the named solicitor or firm failed to recognise this.
 
The Committee was satisfied that issues (2) and (3) should be upheld as inadequate professional service as the evidence supported the allegation of a failure or delay by the named solicitor and firm in progressing the complainer's claim and also an unreasonable delay by the named solicitor and firm in clarifying the situation regarding the complainer's contract (over 10 years from when the issue had been identified as requiring clarification).

The Committee decided that the firm should pay to the complainer compensation in excess of Band D for inconvenience and distress. The Committee also decided that the firm should not be entitled to the receipt of any fees for the work carried out on the complainer's case. Accordingly, the Committee decided that the firm should not at any time request from The Scottish Legal Aid Board payment of any of the firm's fees. The Committee directed the firm to pay a complaints levy of £750. 
16/79 Executry This was a third party complaint, lodged on behalf of the complainer's two children. The children were beneficiaries in the wills of 3 different family members and the executries were all undertaken by the firm. The complaint was that a named solicitor and/or the firm had failed to deal with a legal rights claim due to the complainer's late spouse from the estate of a late parent.   A successful legal rights claim would have resulted in funds being due to the complainer's children.  The Committee noted that the firm was also acting as executor; in so doing it must advise any other executors of their duties in relation to Legal Rights and their potential personal liabilities. The Committee found that the firm failed to advise the other executor of their duty to inform potential claimants of their Legal Rights or of the executor's potential personal liability.The firm also failed to provide the other executor with information which could have been provided to potential claimants in order for them to make an informed choice as to whether to claim their Legal Rights. There was evidence of a breach of Articles 2 and 3 of the Service Standards, in relation to Diligence and Communication and inadequate professional service to the firm's own client (the other executor). The complainer’s children were directly affected as the size of the testamentary trust left to them by their parent's estate was reduced from what it would have been had their parent been advised of and elected to take their Legal Rights in relation to their own late parent's estate. The firm had reached a private settlement with the complainer in relation to the Legal Rights claim itself. However, the complainer and the children had also been required to take action to notify the firm of the claim and to seek appropriate settlement and redress.

The Committee directed that the firm should pay level 4 compensation for actual loss in respect of the complainer's own legal fees incurred in pursuing the children's legal rights claim and Band D compensation to the children for inconvenience and distress. The Committee directed that the firm should also refund 25% of the fees and VAT claimed for in relation to the administration of the estate concerned to the executors and trustees of that estate and further invited the firm to make an apology to the complainer and their children for the inconvenience and distress suffered. The Committee determined that a complaints levy of £1000 was appropriate.
16/80 Litigation The complainer complained that the firm had unduly delayed in updating them on progress with an appeal against a government department's decision, in that no updates were provided to them during the nine month period the firm were instructed.  Although the Determination Committee was satisfied that the firm had updated the complainer appropriately at various stages during the course of their instruction, it decided that there had been undue delay in keeping the complainer up to date with progress specifically in relation to the securing of some files relevant to the case from the government department. In particular, the Committee noted that assurances were provided to the complainer that an update would be provided in relation to that matter as soon as the firm had heard from the government department, however, no update was provided until 14 weeks after the firm had heard back.

The committee agreed that this failure amounted to inadequate professional service and that the complaint should be upheld on this basis. The Committee awarded compensation for inconvenience and distress within Band A. The Committee decided to impose a NIL Complaints Levy.
16/81 Litigation The complainer, who was a client of the firm, was due to receive a payment under the terms of a private settlement. The payment was received by the firm on the complainer's behalf on a Friday. The complaint was that: (1) the firm had unduly delayed in transferring the settlement funds as they were not transferred until the following Wednesday; and that (2) the firm had failed to act in a diligent manner in that the settlement had failed to deal with the issue of liability for outstanding rates on the property.  The complaint in relation to the delay in transferring money (1) was upheld. The firm received the funds late on the Friday evening. While it was not possible to transfer them then, they could have been transferred on the Monday. The firm did not communicate that there would be any delay in transferring the funds and there was no good reason why they had not been transferred. The funds were a substantial amount and it was clear the complainer was anxious to receive them.

The complaint regarding the failure of the settlement to deal with rates (2) was not upheld. The complainer should have been aware that this was a third party liability, and a separate matter to those dealt with in the settlement. The settlement agreement provided that the complainers tenancy of the property remained in force until a certain date and the tenancy agreement was clear that the complainer was liable for the rates. There was no supporting evidence that the complainer had raised the issue of rates with the firm until after the agreement was binding. The agreement was a full and final settlement.

The Committee directed that the firm should pay compensation in the level of band B for inconvenience and distress. The Committee noted that the firm had £800 of unbilled time which it was not proposing to pursue further and determined that the firm should have no entitlement to any further fees in relation to this matter. The Committee further agreed that a nil levy was appropriate.
16/82 Family The complainers complained: (1) that the named solicitor failed to advise them adequately regarding the potential disclosure of the complainers' names and address to the birth parents of Child X whom the complainers were adopting; (2) that the named solicitor failed to consult with them as to whether the complainers wished their names and address to be disclosed to the birth parents of Child X; and (3) that the named solicitor proceeded inappropriately to disclose the names of the complainers and their address to the birth parents of Child X without the knowledge or consent of the complainers.
 

 
The Determination Committee agreed that there was evidence of inadequate professional service in this case as the named solicitor's firm failed to advise the complainers that the adoption petition would include their names and address and failed to make the complainers aware that this would be disclosed to the birth parents of Child X . The Determination Committee also agreed that the firm failed to provide the complainers with advice in relation to anonymising the petition regarding their names and address. The Determination Committee agreed that the firm and named solicitor failed to act in the best interests of the complainers and accordingly, the complaint should be upheld.
 
The Determination Committee directed the firm to pay compensation to the complainers of Band D for inconvenience and distress. The Determination Committee also directed the firm to pay a complaints levy of £750.
16/83 Executry The complainer, a co-executor and the sole beneficiary, complained about: (1) Undue delay to complete the administration of an Executry; (2) Failure to communicate effectively with the executor by not replying to emails (2 in January and 1 in September) and certain letters sent by the executor; and (3) failure to communicate effectively as despite the solicitor having written to the executor in February (which the executor did not receive) the solicitor did not check the executor had received the reply letter or contact the executor again until the executor informed the solicitor the following January of the intention to complain to the SLCC.   The Determination Committee decided to uphold complaints 1 and 3 of the complaint and partly uphold 2 for the following reasons: (1) the firm did not carry out any substantive work for a period of eleven months, nor did it update the executor about the administration of the estate in spite of the executor's instructions to provide a final account and progress matters and had failed to act in the complainer's best interests by failing to progress the Executry expeditiously. In relation to (2) the firm responded to only one of the executor's January emails, but not the other one nor the email of September, and in respect of (3) the firm did not contact the executor during a period of eleven months. These were all agreed to be breaches of Article 2 of the Service Standards (Diligence) which constituted inadequate professional service.

The Committee directed the firm to reduce its final fee by £1,850, and to pay to the complainer compensation of Band C for inconvenience and distress. The Committee directed the firm to pay a Complaints Levy of £750.
16/84 Conveyancing The complainer complained that the named solicitor and/or the firm had failed to disclose information contained within the Property Enquiry Certificate (PEC) before missives had concluded.  The Committee noted that the PEC was in fact shared after missives had concluded, in accordance with the Scottish Standard clauses which applied to the transaction. The firm acknowledged that the information had not been passed on to the complainers, as they believed the information in it did not raise any issues of concern. The complainers were therefore deprived of the ability to decide whether to attempt to withdraw from the contract on the grounds that the information in the PEC changed the situation.

The Committee upheld the complaint and agreed that the failure to disclose the information represented a failure to act in the complainer's best interests which deprived them of the opportunity to consider whether to withdraw. The Committee found that the firm had breached Articles 2 and 3 of the Service Standards (Diligence and Communication) and had provided an inadequate professional service.

The Committee directed that the firm should pay the complainers compensation within the range of band B for inconvenience and distress along with a fee rebate of £500. The Committee determined that a Nil complaints levy was appropriate.
16/85 Conveyancing The complainer complained that two named solicitors and the firm had: (1) failed to advise that a neighbouring property had a right of access from the south; (2) failed to advise of the five day guarantee in the Scottish Standard Clauses; and (3) had unduly delayed for some 3 months to advise of this five day guarantee. In relation to (1), the firm accepted that they had not provided the complainer with all the relevant information in respect of the rights of access. Although there was evidence of discussion about the Title Deeds at a meeting with the complainers, there was insufficient evidence that the particular right of access from the south was clearly explained to them. The firm failed to follow up the meeting with any written communication confirming the crucial details of the Property purchase. The complainers were entitled to expect the firm to interpret the deeds and provide them with the necessary advice on the burdens (conditions) in the deeds. The firm was not able to provide clear evidence that it had provided such advice.The Committee found evidence of a breach of Article 3 of the Service Standards and inadequate professional service.

In relation to issues 2 and 3, there was no clear evidence that the firm advised the complainers of the five day guarantee in Clause 4 of the Scottish Standard Clauses when they purchased the Property. It would be expected that important and relevant clauses are explained clearly to clients and any relevant Deeds are provided in writing; there was a failure to do so. The firm failed to follow up meetings with any written communication confirming the crucial details of the Property purchase. The firm therefore failed to act in their clients’ best interests. The Committee found that there were breaches of Articles 2 and 3 in respect of diligence and communication and an inadequate professional service.

All issues were therefore upheld against the firm and Band D compensation for inconvenience and distress was awarded together with a 100% fee rebate. The Committee agreed that a nil levy was appopriate.

Not upheld decisions

Decision No. Business Area Complaint detail Outcome
16/86 Crime The complainer complained that the named solicitor and firm instructed by the complainer to defend the complainer against charges under the Misuse of Drugs Act 1971: (1) failed to act on the complainer's instructions as the complainer wanted text messages between third parties to be included as evidence and failed to explain to the complainer why the said messages were not included as evidence; and (2) failed to act on the complainer's instructions to lodge a notice under Section 78 of the Criminal Procedure (Scotland) Act 1995 to incriminate the complainer's co-accused, despite the complainer's previous legal team lodging these during preliminary proceedings.
 
 
In relation to (1), the Committee was satisfied that there was no evidence the complainer had instructed the named solicitor or firm to include the said text messages as evidence. Further, the Committee was satisfied that the named solicitor had exercised appropriate professional judgement in electing not to refer to the text messages at trial and there was no evidence to show this was unreasonable.

In relation to (2), the evidence showed that the Section 78 Notice had already been lodged by the time the named solicitor and firm started acting for the complainer. The Section 78 Notice was not removed at any stage so it remained in place throughout the trial. There was no need therefore for the named solicitor or firm to lodge a Section 78 Notice.

The Committee decided that both issues should not be upheld. 
16/87 Conveyancing The complainer complained that the named solicitor and/or the firm had failed to provide them with copy plans for a property they owned whilst acting in a sale transaction. There was an issue with the extent of the property as part of it had previously been mistakenly registered as part of a neighbouring property.  The Committee considered that the oversight in failing to provide the complainer with copy plans alongside the correspondence issued to them did not in any way affect their understanding of the issue or mislead them. Within 5 days of the correspondence being issued, the firm visited the complainer on site and had brought these plans with them. The Committee found no evidence to support a breach of the Service Standards in relation to either diligence or communication and no evidence of the provision of an inadequate professional service.

The complaint was not upheld.
16/88 Litigation The complainer complained about the named solicitor and firm who acted for the complainer in defending a court action against the complainer by X in that the named solicitor: (1) failed to challenge the registration by X of a Certificate of Indebtedness, failed to explain to the complainer the significance of the Certificate and failed to provide the complainer with a copy of the Certificate. The complainer also complained that (2) the named solicitor failed to act in the best interests of the complainer as he failed to make any counterclaim on behalf of the complainer.
 

 
In respect of (1), the Determination Committee was satisfied that the possibility of challenging the Charging Order (which included the Certificate) was discussed between the complainer and the named solicitor. The Determination Committee was satisfied that the named solicitor exercised professional judgement in advising the complainer that the Charging Order was validly created and that there was a stronger argument they could focus on instead. In relation to (2), the Determination Committee was satisfied that the named solicitor again exercised appropriate professional judgement in providing advice to the complainer which in the circumstances of the case did not necessarily require the discussion of any counterclaim.
 
The Determination Committee decided that both issues should not be upheld.
16/89 Conveyancing The complainer complained that the named solicitor and firm failed to advise the complainer that the cost of work would exceed the estimate provided to the complainer at the outset. The final fee was higher than the sum the complainer was told to budget for.
 
 


 
The Committee was satisfied that the evidence showed the named solicitor's firm communicated with the complainer about how the fee would be calculated. The firm had clearly explained to the complainer that the lower figure was not a fixed fee.

The Committee decided not to uphold the complaint.
16/90 Executry The complainer was one of three named executors in a deceased parent's estate although the complaint was brought on an individual basis. The complaint was that the firm/solicitor had failed to act in the client's best interests in that they failed to advise, when shares from the estate were sold, that the value of the portfolio had fallen significantly from that at the date of death.  The complaint was not upheld as the Committee found that the terms of business and letter of engagement both specified that the firm would not provide financial advice. This was re-confirmed in a letter and in a meeting. The Committee found that the firm had communicated clearly that they would not provide financial advice in respect of any share dealings. The complainer received the full legacy due under the will and did not suffer any financial loss. There was no breach of Articles 2 or 3 of the Service Standards and no inadequate professional service. 
16/91 Litigation This was a third party complaint in relation to litigation regarding property access rights. The complainer, who was the pursuer in the litigation, complained that the solicitor, who was the defender's solicitor, had: (1) failed to advise their clients correctly in relation to the ownership of specified land; and (2) repeatedly failed to justify their position or correct the misinformation given to their clients despite letters from the complainer requesting that they do so.  Neither aspect of the complaint was upheld.

The Committee found that there was a dispute between the parties as to the nature of the land, that there was evidence for the firm to maintain their position in relation to the land, and that they had provided their own client with appropriate advice in this regard. The Committee noted that the firm had responded to the third party complaint, and that three of five letters had received a response. The firm advised the complainer that they had no instructions to correspond and their subsequent communications repeated this and their understanding of the position. As the firm's file was not produced the Committee could not establish what instructions were given by the client, but the Committee saw no supporting evidence of any inadequate professional service to the firm's client. As there was no evidence of inadequate processional service to the firm's own client the Committee was not required to consider whether the complainer was directly affected.
16/92 Crime & Civil work Complaint issues about criminal court work: The solicitor and/or the firm: (1) misrepresented to the complainer by changing the solicitor’s view on what the complainer should plead, initially recommending a plea of not guilty and later predicting an outcome of imprisonment, despite no changes in facts; (2) failed to prepare before a particular meeting; (3) failed to instil confidence in the complainer as the complainer had to repeat information that had previously been provided; (4) failed to consider the complainer's medical condition when agreeing to offer the complainer's appearances in court to provide evidence within timescales the solicitor knew, due to the complainer's medical condition, the complainer could not manage; and (5) failed to liaise with the complainer prior to offering the complainer's appearance in court.
 
Complaint issues about civil court work The solicitor and/or the firm:  (6) failed to follow instructions and use evidence the complainer provided to negate the action and challenge the pursuer; (7) wrongly advised the complainer there was an agreement to drop the court action if the complainer agreed to pay the amount requested, which the complainer agreed to, but then the pursuer took further action against the complainer; (8) failed to follow instructions to protest against the further court action against the complainer; (9) failed to follow instructions to test a contract which had been set out; and (10) failed to communicate effectively with the complainer as they did not keep the complainer informed of progress in either action (civil or criminal) and did not ask the pursuer to honour its agreement. 
The Determination Committee did not uphold any of the issues of complaint for the following reasons:-

Criminal court work: (1), the Committee considered that there was no evidence the solicitors assured the complainer there would be a finding of 'not guilty'. After the solicitors received the Procurator Fiscal's disclosure of evidence they advised that the complainer's own witness evidence would be crucial to the complainer's defence and when the complainer indicated the complainer would not appear as a witness, the solicitors advised how this would affect the prospects at trial and if the complainer was found guilty or pled guilty a custodial sentence could follow. There was a material change of circumstances between the firm's earlier and later position for the above reasons. (2), the solicitor did not read the disclosures in detail before the meeting, but which had been arranged for the solicitor and complainer to consider the evidence in detail together. There was no evidence of any adverse impact on the complainer. It was a sensible, reasonable and economical approach. (3), there was no evidence the complainer had been repeatedly asked to provide information they had already provided. (4) & (5), the solicitors did not offer the complainer's appearance in court. The complainer was advised to appear at the intermediate and trial diets unless the court granted an exemption. In so advising the solicitors were acting in the complainer's best interests because they considered the complainer's evidence crucial to the complainer's own defence.The solicitors did liaise with the complainer in respect of the complainer's appearance in court and advised the complainer about obtaining a 'soul and conscience' letter.

Civil court work: (6) & (9), the solicitors did not consider the email from the other party to be a contract and clearly explained their reasons for this to the complainer. The solicitors never agreed to challenge the pursuer on the basis of the alleged contract and kept the complainer updated on their actions and communicated clearly with the complainer. (7) & (8), the Committee foundf that there was no evidence that the pursuer ever agreed to accept the complainer's cheque as full and final settlement of rental arrears continuing to accrue. The pursuer advised the solicitors they would not dismiss the action until all rental arrears had been cleared. This was clearly communicated by the solicitors to the complainer. There was no evidence the solicitors had provided incorrect advice to the complainers; the position was clearly explained to the complainer. (10), the solicitors had corresponded regularly with the complainer and ensured the complainer received regular updates on any important development in relation to both the criminal and civil matter and communicated in a clear manner.

 

Determination Decisions: July - September 2016

Upheld and part-upheld decisions

Decision No. Business Area Complaint Detail Outcome
16/50 Litigation The complainer complained that the named solicitor/firm had failed and/or delayed responding to the complainer's queries (made over a number of months) about whether or not the claim (1) would include a claim for inconvenience, (2) was also against the driver, and (3) would be recorded bythe insurers in their books. 

The complainer also complained that the firm/named solicitor had failed and/or delayed responding to the complainer's (4) instruction to quantify the claim, (5) query about the effect of a claim on the insurance premium, and (6) query about why a small claims action was not raised.

 
The Determination Committee decided that there was sufficient evidence to uphold issues (3), (5) and (6) as Inadequate Professional Service.  In respect of (3) and (5), the Committee agreed that there was an absolute failure to respond to the complainer's queries.  In respect of (6), there was a failure to respond to the complainer in a timely and thorough manner.

The Committee was satisfied that the remaining issues should not be upheld, as the firm had made various (unsuccessful) attempts at contacting the complainer.  The Committee agreed that any delays were not of the firm's making and that the firm had been waiting for information from the complainer before being able to progress matters, including providing a full view on quantum.  

The Committee ordered the firm to pay to the complainer compensation of Band B for inconvenience and distress.  The Committee decided not to impose a Complaints Levy on the firm.
16/51 Commercial & company The complainer complained (on behalf of his company) that the named solicitor/firm had (1) acted in a conflict of interest situation, by sending a Multiple Members Agreement to only one of four of the shareholder directors to sign, and failed to advise the complainer that not all of the directors had signed the Agreement, (2) acted in a conflict of interest situation, by delaying advising the complainer of the situation regarding the signing of the Agreement, despite having requested clarification of the position on 2 occasions, (3) unreasonably withheld information from some of the directors and continued to act for all four directors, despite the conflict situation, (4) failed to confirm or deny whether the firm drafted and amended the Agreement, and (5) refused to send the complainer documentation from the firm's file. The Determination Committee was of the view that different treatment of directors over pension arrangements provided the potential for conflict of interest among the directors and that the solicitors were aware of such potential conflict for nearly three years before they withdrew from acting.  The Committee considered that the firm should have advised the directors at the first sign of this conflict to seek their own independent advice and decline to act for them, but did not so.

Regarding the issue of withholding documentation, the Committee decided that in view of the conflict between the Co-Directors, the firm was entitled to withhold the information.

The Committee ordered the firm to pay to the complainer compensation of Band D for the inconvenience and distress caused.  The Committee directed the firm to pay a Complaints Levy of £1,500.
16/52 Residential conveyancing The complainer complained that the firm had (1) failed to highlight there was a statutory notice over the property and failed to advise of the of the implications of the notice or the potential cost to the complainer, (2) failed to advise of an appropriate course of action that would mitigate the risk of the notice being activated, and (3) failed to advise the complainer to hold back funds from the purchase to cover the costs of the repairs. The Determination Committee agreed (1) that there was a failure by the firm to advise the complainer of the implications of the statutory notice or the potential costs of the notice to the complainer.  The Committee was satisfied that this failure did amount to Inadequate Professional Service.

Regarding (2), the Committee agreed that there was no evidence that any course of action could have been taken to mitigate the risk of the notice being activated.  As a result, the firm could not have been expected to give advice regarding this, and accordingly, it decided not to uphold this issue.

In relation to (3), the Committee was satisfied that the general practice in respect of such statutory notices at the time of the complainer's purchase was for the purchaser to assume responsibility for the notice without deduction in the price. Accordingly, there was no requirement on the firm to advise the complainer to hold back funds from the purchase price to cover the cost of repairs.  The Committee was satisfied that this issue should not be upheld.

The Committee ordered the firm to reduce its fees by 30% and to pay compensation to the complainer of Band C for inconvenience and distress. The Committee directed the firm to pay a Complaints Levy of £750.
16/53 Family The complainer complained that the named solicitors/firm had (1) failed adequately to instruct forensic accountants to prepare a report, which resulted in the fee estimate nearly doubling, (2) appointed an expert witness without first obtaining an estimate of the expert's fee, and (3) made an inappropriate remark at a meeting. The Determination Committee was satisfied there was no evidence of a failure to  instruct the forensic accountants adequately and, as such, decided that (1) should not be upheld.  In respect of (2), the Committee was satisfied there was sufficient evidence to show that the solicitors had failed to obtain an estimate of the expert's fee.  The Committee agreed that this failure amounted to Inadequate Professional Service.

After considering new information provided to it by one of the parties, the Committee decided in respect of (3) that this issue was totally without merit, on the basis that the evidence was contradictory and that no independent evidence was available to prove the complaint to the requisite standard.

The Committee ordered the firm to pay to the complainer compensation of Band A for inconvenience and distress.  The Committee directed the firm to pay a Complaints Levy of £250. 
16/54 Family The complainer alleged that the named solicitor/firm had (1) failed to attend a court hearing and submitted wrong paperwork, (2) failed to advise the complainer not to attend at court, (3) failed to send a letter as instructed, and (4) unduly delayed responding to telephone calls made twice a day over a 4 day period. The Determination Committee decided to uphold partially (1), insofar as this related to the solicitor's failure to attend court, which the solicitor had admitted.  The Committee was satisfied that the failure to attend court breached the Service Standard relating to diligence and amounted to Inadequate Professional Service.  The Committee did not identify any failures regarding the documentation submitted, and so decided not to uphold this element of (1). 

Regarding (2), the Committee reached the view that the onus was on the solicitor to ensure that he/she communicated effectively with his/her client and clients should not have to second guess whether they are required to attend at court or not.  In this case, the solicitor had sent a letter advising that the complainer's attendance at court was necessary.  A second letter was silent on the point.  Although the Committee agreed that the solicitor was entitled to exercise discretion as to whether the complainer should attend, it was incumbent on the solicitor to ensure that the complainer clearly understood the purpose and nature of the hearing and what was expected.

Although the facts in relation to (3) and (4) were in dispute, the Committee found sufficient circumstantial evidence to prefer the complainer's version of events.  The Committee was satisfied that there was no evidence to confirm that the complainer's instructions were actioned, and although the failure to return calls was only over a few days, the Committee agreed that as the matter was urgent, relating to access arrangements for the forthcoming weekend, the failure to return calls constituted Inadequate Professional Service.

The Committee ordered the solicitor personally to pay compensation to the complainer of Band B for inconvenience and distress caused.  The Committee also directed the solicitor personally to pay a Complaints Levy of £750.  The Committee decided that the solicitor was personally liable as he/she had been responsible for the services provided and had dealt with the complaint.
16/55 Residential conveyancing The complainer alleged that the named solicitor/firm had (1) allowed a trainee solicitor to provide inadequate advice regarding the complainer's financial responsibility for the maintenance of the roof and failed to fully explain the contents of the deeds, specifically regarding the burdens, (2) sent incorrect information about the burdens, (3) failed adequately to supervise the trainee solicitor, and (4) failed properly to address the issues in the letter of complaint. The Determination Committee decided that (1) should be upheld on the basis that there was sufficient evidence to show that the complainer had queried recent works carried out on the flat roof and the firm should have carried out further checks regarding the burdens.  Although the complainer had the opportunity to review the documents and raise queries (no queries were raised or work instructed), the Committee was of the view that the complainer could reasonably have expected that any commonly encountered conveyancing issues would be thoroughly investigated by the firm.

The Committee concluded that the actions of the firm prior to the conclusion of the transaction amounted to a breach of the Service Standards in relation to diligence and communication and met the test for Inadequate Professional Service.

Regarding (2), the Committee was satisfied that there was no evidence to show that the trainee had checked the position or made appropriate enquiries about the burdens.  The Committee commented that information provided to the client must be unequivocal and clear, and the duty to communication included listening to the client and ensuring that instructions were understood.  Inaccurate information had been provided to the complainer before the firm had checked the position, which the Committee considered was evidence of Inadequate Professional Service.

In relation to the issue of adequate supervision (3), the Committee agreed that the trainee was under the supervision of the named solicitor during the time of the transaction and also at the time of the complaint.  The named solicitor was responsible for ensuring that the work was of the requisite standard.  It appeared to the Committee that the named solicitor did not advise the trainee that extra work was required regarding the burdens.  The Committee agreed that the named solicitor had failed to delegate work effectively and that this failure could amount to a breach of the Service Standards relating to diligence.  Accordingly, the Committee found that the firm had provided an Inadequate Professional Service.

In respect of (4), the Committee found that the named solicitor (the Client Relations Manager) had failed to address the substance of the complaint and had not sought further clarification of the complainer's concerns.  In doing so, the Committee was satisfied that the firm had provided an Inadequate Professional Service, on the basis that there had been a breach of the Service Standards relating to diligence.

The Committee ordered the firm to pay the complainer compensation of level 4 for actual loss, and Band D compensation for inconvenience and distress.  The firm was also ordered to refund fees of £300 to the complainer. The Committee directed the firm to pay a Complaints Levy of £750. 
16/56 Residential conveyancing The complainer complained that the firm had (1) failed to provide adequate advice regarding the removal of a wall within the property, (2) failed to explain fully and adequately the purpose, extent and conditions of a Title Indemnity insurance policy in respect of the wall, and (3) failed to investigate and inform the complainer of the full extent of structural alterations and to advise of the consequences of the removal of the wall. The Determination Committee was satisfied from its consideration of the evidence that (1) the complainer had raised concerns with the firm about the removal of the wall, and although the firm could not have provided specific advice, there was a duty on the firm to provide information about the options available in terms of obtaining professional advice or proceeding to conclude missives.  The Committee agreed that the firm had failed in this duty and breached the Service Standards relating to diligence.  

Regarding (2), the Committee was satisfied that the firm did not fully explain the extent and limitations of the Title Indemnity insurance policy.  As a consequence, the complainer was denied the opportunity of considering whether the policy was sufficient and whether to conclude the purchase.  The Committee agreed that this failure could amount to Inadequate Professional Service.

In respect of (3), the Committee was satisfied that the firm had investigated the extent of the works carried out to the property by checking the Home Report and that this information had been passed on to the complainer.  It was noted that the local authority had inspected the alterations and had expressed no concerns.  Accordingly, the Committee was satisfied that there was no further duty on the firm to undertake additional investigations.  On this basis, this issue was not upheld.

The Committee ordered the firm to pay to the complainer compensation of Band C for inconvenience and distress.  The Committee also ordered the firm to reduce its fee by approximately £340.  The Committee directed the firm to pay a Complaints Levy of £375.

Not upheld decisions

Decision No. Business Area Complaint Detail Outcome
16/57 Family The non client complainer complained that the named solicitor had acted for both the complainer and the spouse, contrary to the complainer's best interests, and had misled the complainer's solicitor by failing to inform the court that the complainer had only agreed for divorce to be granted if there was a later Proof on financial matters, despite the fact that the solicitor had agreed to do this during an earlier meeting with the complainer's solicitor.
 
The Determination Committee was satisfied that there was no evidence that the solicitor gave any undertaking not to oppose any future Minute of Agreement or that there was any agreement that the solicitor would advise the court that the future Proof on financial provisions would proceed on the basis of amended pleadings.  The Committee was satisfied that the solicitor had acted diligently in asking the court to grant the Joint Minute.  The evidence confirmed that the complainer's own solicitor was put on notice of what the court was being asked to do and he raised no query in this regard.

The Committee agreed that the solicitor had acted diligently in communicating the mutually agreed position to the court.  Accordingly, the Committee decided not to uphold the complaint.
16/58 Executry, Wills & Trusts The complainer complained that the named solicitor/firm had (1) unduly delayed/failed to advise the complainer not to distribute various items from the estate until all of the debts had been settled, (2) failed to advise the complainer adequately regarding a contract to sell the property at auction, and (3) unreasonably charged for a copy of the death certificate, despite the fact that the complainer already had a copy. The Determination Committee was satisfied in respect of (1), that the evidence showed that the firm had made efforts to clarify the location and nature of the property, and had advised the complainer throughout the instruction that these items would need to be sold to pay debts.  The Committee agreed that the firm had taken reasonable steps to locate missing items and that the complainer had raised this matter with the police.  The Committee decided that there was no evidence of any failure or delay on the part of the firm.  Accordingly, this issue was not upheld.

In relation to (2), the Committee was satisfied that there was no evidence that the firm had failed to advise the complainer of the terms of the contract.  The evidence shows that the firm had explored the option of withdrawal, but that the complainer had decided to keep the property in the auction.  Adequate advice had been provided and there was no evidence of a breach of the Service Standards.

Regarding (3), the Committee noted that it had been established that the complainer only had a copy of the death certificate, not a full extract, which was required by Registers of Scotland.  The Committee's view was that while it would have been best practice for the firm to have checked with the complainer before ordering the certificate, this had no practical impact in this case.  The Committee felt that this was a minor one-off failure, which in the Committee's view did not amount to Inadequate Professional Service.  The full extract certificate was vital to ensure the sale took place and the Committee was satisfied that the firm had acted in the complainer's best interests in ordering the certificate.  For these reasons, the Committee decided not to uphold this issue.
16/59 Crime The complainer complained that the named solicitor/firm had failed to meet the complainer to go over the evidence and formulate a defence, despite having stated that they would.  The complainer only met an assistant, 30 minutes before the trial started. The Determination Committee noted that the complainer was initially of the view that they had not committed any offence and would be pleading not guilty.  The complainer had also been keen to keep costs to a minimum.  The evidence showed that the firm had advised the complainer on several occasions, that it was preferable to deal with all preparatory matters, including any potential meeting, once Disclosure had been obtained, to avoid incurring unnecessary costs.  Once Disclosure was obtained, the complainer spoke at length with one of the firm's assistants and was given access to police statements.  At this point, the complainer changed their plea.  Since a defence was no longer required, neither was a meeting to discuss this.  One of the firm's solicitors met the complainer prior to the court hearing to advise on procedure.  The Committee found no evidence that the firm failed to communicate with the complainer or failed to act in the compaliner's best interests.  As there was no evidence of a breach of the Service Standards, the Committee decided not to uphold the complaint.
16/60 Executry, Wills & Trusts The complainer alleged that the named solicitor/firm had (1) failed to contact the complainer, having only contacted the other co-executor, with whom the firm knew the complainer did not get on, (2) failed to take on board the complainer's concerns about the co-executor having accessed cash from the deceased's bank accounts, despite knowing that all cash had been left to the complainer's children, (3) failed to invite the complainer to the reading of the will and inappropriately released the will into the care of the co-executor, and (4) unreasonably withdrew from acting for the executors without providing an explanation.
 
The Determination Committee decided in respect of this complaint that there was no evidence that a solicitor/client relationship had been established regarding the executry, either expressly or impliedly.  Once it had been established that there was a potential conflict between the executors, the co-executor had been contacted and the solicitor had advised that he was declining to act.  A letter had been sent to the complainer clearly explaining the reasons why the firm was declining to act and this was sent promptly after the first meeting.  The Committee agreed that as there was no established contract for services, there could not be said to have been any breach of the Service Standards. 
16/61 Commercial conveyancing The non client complainer (on behalf of a Trust) complained that the firm had (1)
failed to ascertain/take action to rectify the fact that the subjects conveyed purported to include an area of ground previously conveyed to another party, (2) failed to ascertain if a right of pre-emption was exercisable on the transfer of title and, if so, whether the right would be exercised, and (3) failed to ensure that (a) the Assignation was valid and conformed to the requirements of the Deed, and (b) that ownership of the assets was properly transferred in accordance with the Deed.
The Determination Committee found (1) that the firm had received draft dispositions. However, there was no evidence that the firm was ever in a position to approve or revise these.  For several months prior to the firm withdrawing from acting, the firm had clearly stated that it was unable to carry out further work due to outstanding sums owed.  It was clear that the firm had ceased acting for their client one year prior to the finalised dispositions being executed.  The Committee agreed that the firm could not, therefore, be held responsible for the final dispositions produced.  As the firm was no longer providing a service to its client, there was no evidence of an Inadequate Professional Service to the client and on that basis, there could be no direct affect on the complainer. 

Regarding (2) and (3), the Committee noted that the Service Standards require solicitors to acted diligently and communicate effectively with their clients.  Also, that the firm must only undertake work it is sure can be completed to the requisite standard.  The Committee noted that the firm's client had been advised that specialist conveyancing advice would be required. Instructions had not been received from the client and outstanding sums were still owing to the firm.  As the firm subsequently withdrew from acting and were not providing a service, the Committee agreed that these issues should not be upheld as Inadequate Professional Service, and as such, there was no direct affect to the complainer.
16/62 Company / commercial The complainer complained that the named solicitors/firm had (1) failed to include company assets in the interdicts or court orders to prevent the defenders using company assets to fund their legal costs and associated expenses, and despite having asked for advice about how to protect these assets, (2) failed to give advice on how to halt malpractice by the co-shareholders, (3) failed to prevent malpractices from occurring or provide a remedy to recover what had been misappropriated historically, (4) failed to recover judicial expenses, despite instructions to do so, (5) failed to advise the complainer that if they lost the court action, they would no longer be director/shareholder and would consequently lose the Court of Session action, (6) raised their fees without notification of the proposed increases, (7) failed to negotiate expenses for a proposed 8 day court hearing, (8) met with a firm of accountants to instruct them as expert witnesses and charged the complainer for the meeting, despite the complainer's instructions not to appoint anyone as an expert witness and (9) failed to recover expenses incurred due to the defender's solicitors’ inability to hold funds on joint deposit. The Determination Committee was satisfied that (1) the firm had provided the complainer with advice on investigating suspected wrongdoing and to protect the company’s assets.  There was no evidence of a breach of the Service Standards relating to diligence. 

Regarding (2) and (3), the Committee found that, having provided advice and receiving instructions to do so, the firm included the allegations of malpractices in the pleadings and raised an action of unfair prejudice on the complainer’s instructions. The complainer had been advised of the appropriate remedies.  The evidence showed that the firm had notified the other side of the malpractice allegations, which was a preventative measure of itself, as it could reasonably be expected that the other shareholders would put a stop to any malpractices, knowing that these could be used as the basis of unfair prejudice proceedings. In light of the action taken by the firm, the Committee was satisfied that there was no evidence of an Inadequate Professional Service regarding these issues.

In respect of (4), although the Committee found that the firm did not pursue recovery of expenses, the complainer's instructions in this regard were superseded by subsequent events, including the decision to enter settlement negotiations.  The Committee noted that the complainer had voluntarily signed a full and final settlement agreement discharging any rights to any further claims.  On this basis, the Committee agreed that there was no evidence to show a breach of the Service Standards and this issue was not upheld.

Regarding (5), the Committee was satisfied from the evidence before it that the firm had advised the complainer that it would only be possible to raise and pursue the unfair prejudice proceedings while remaining a shareholder.  It was also made clear that the complainer would only have the opportunity to recover costs if the complainer was successful in the Court of Session action.  For these reasons, the Committee decided not to uphold the issue.

In respect of (6), the Committee observed that the firm’s hourly rates did not change during the instruction. The hourly rate of the personnel involved increased as their status in the firm changed.  The Committee found that the complainer was made aware of the change, and that the hourly rates applicable to various staffing levels were clearly set out in the Terms of Business provided at the outset of the transaction. On this basis, this issue was not upheld.

The Committee noted from its consideration of the evidence in respect of (7) that it was the complainer’s decision to agree to the Hearing being discharged on a joint motion.  The complainer was aware that that no binding settlement had been agreed and had lost the opportunity to recover expenses, not because the hearing was discharged, but because the complainer voluntarily agreed a settlement under which any right to expenses was discharged.  For these reasons, the Committee was satisfied that there was no evidence of an Inadequate Professional Service having been provide to the complainer.

Regarding (8), the Committee found evidence that while the complainer initially expressed reservations about the need for an expert witness, the complainer eventually agreed and instructed the firm to appoint one.  The Committee was satisfied that the complainer was aware of the liability for meeting the costs of the expert witness and, on this basis, the firm had not provided the complainer with an inadequate service.

In respect of (9), the Committee confirmed that it had not found any evidence or suggestion that the firm was instructed by the complainer, or that the firm had agreed to attempt to recover expenses incurred.  The opportunity was voluntarily forgone as a result of the complainer's decision to agree a global full and final settlement.  Accordingly, the Committee was satisfied that there had been no breach of the Service Standards and the issue was not upheld.
16/63 Executry, Wills & Trusts The non client complainer complained that the named solicitor/firm had failed to ensure safe storage of files and papers, including the complainer's late father's will, which had subsequently been lost. The Determination Committee agreed that it was not possible, from the evidence available, to ascertain when or where the will had been lost and by which firm.  The Committee was of the view that there was insufficient evidence to confirm that the will in question had ever been passed on to the new firm.  Accordingly, it was not possible to show, even on the balance of probabilities, that the named firm had breached the Service Standards.  On this basis, the Committee decided not to uphold this complaint.
16/64 Personal Injury The complainer complained that the named solicitor/firm had unduly delayed progressing the complainer's claim for over 2 years.  The Determination Committee was satisfied that the evidence showed that the delays in producing statements and information required in order to instruct the expert report were not attributable to the firm complained of, but to the complainer's former and existing employers.  The Committee was satisfied that the expert had been instructed by the firm at the earliest opportunity.  There was no evidence of a breach of the Service Standards relating to communication or diligence.  Accordingly, the Committee decided not to uphold the complaint.
16/65 Family The complainer complained that the named solicitors/firm had (1) carried out work without the complainer's consent and without the cost implications being explained, despite the firm's terms of business clearly stating that most of the work would be performed by intermediate/lower level staff with supervision from a partner and despite the agreement that one specific solicitor would lead the case, (2) failed to cite a witness or to provide a reasonable explanation to the complainer for failing to do so, (3) failed to change the terms of the consolidated court record or to provide an explanation for the failure to do so, (4) failed to forward documents to the defender's solicitors or to provide an explanation for failing to do so, and (5)  inappropriately withdrew from acting, leaving the complainer unrepresented one month prior to the date of the Proof. The Determination Committee found in respect of (1) that the complainer was aware of the more senior solicitor's involvement in the case (that was complex,   with a Proof in the near future).  The complainer was advised that there was a lot to do in a short time, and it was clear from the contact with the firm who was undertaking the work.  The Committee was satisfied that the evidence showed that the costs were explained to the complainer at the outset and that regular cost updates had been provided.  After the firm agreed that the particular solicitor would lead on the case, this was duly actioned.  In these circumstances, the Committee decided not to uphold this issue.

Regarding (2), the Committee found that there was no evidence that the firm had accepted the complainer's instruction to cite the witness and that the firm had clearly explained to the complainer that they were unwilling to undertake any further work until the outstanding fees were addressed. The Committee agreed that there was no evidence of a breach of the Service Standards relating to diligence. 

In respect of (3), although the Committee found that the firm had not acted on the complainer's instructions to amend the pleadings, it was clear that the firm had not accepted these instructions. The Committee agreed that it was a matter for the firm to exercise professional judgement when deciding how to plead the case for the client, and in this case, the firm had explained to the complainer why the firm were proceeding in the way that it was. The Committee  agreed that there was no evidence of a breach of the Service Standards relating to diligence. 

Regarding (4), the Committee was satisfied that the firm had exercised its professional judgement in deciding what to lodge with the court and what should be intimated to the defender's agents. It was noted that there had been discrepancies in the documentations which required further investigation by the firm. The firm had advised the complainer that the documentation would need to be reviewed for relevancy before lodging, but had ceased to act before there was an opportunity to do so.  On this basis, the Committee decided not to uphold this issue as Inadequate Professional Service.

In respect of (5), the Committee decided that it was reasonable for the firm to raise concerns with the complainer about continuing to act, given the solicitor's perception of the meeting, even if the complainer's perception of the meeting differed.  The supervising partner had also intimated concerns to the complainer about continuation of the solicitor/client relationship.  It was noted that it was in fact the complainer who had withdrawn instructions and in the Committee's opinion, the complainer had ample time to arrange new representation before the Proof.  For these reasons, the Committee found that there had been no breach of the Service Standards, and accordingly, the issue was not upheld.
16/66 Immigration The complainer complained that the named solicitor/firm had failed to advise the complainer not to submit an on-line application for a Settlement Visa and entry documents for the complainer's spouse, which resulted in the complainer having to apply for a refund of the application fees. The Determination Committee was satisfied that there was evidence that the complainer had been told that the solicitor would submit the application and that the complainer should not do so.  The complainer was made aware that the firm needed to check the application before it was submitted.  Furthermore, it was noted that the firm had assisted the complainer in successfully obtaining the refund.  For these reasons, the Committee decided not to uphold the complaint.
 
16/67 Family The complainer complained that the named solicitors/firm had (1) failed adequately to advise the complainer in relation to the terms of a Minute of Agreement, particularly relating to pension arrangements, (2) prepared a Minute of Agreement which lacked sufficient detail involving contact arrangements for the children, and (3) failed to return repeated telephone calls and emails and failed to provide adequate notice to the complainer (and the complainer's sibling) that a pre-arranged meeting would need to be cancelled.
 
The Determination Committee was satisfied in respect of (1), that the complainer was properly advised in relation to the Minute of Agreement and how the terms of that would interact with relevant legislation.  The Committee was satisfied that the complainer understood that the Minute of Agreement could not limit the jurisdiction of the Child Support Agency ('CSA') and that the CSA could take account of the pension in any reassessment.
 
Regarding (2), the Committee was satisfied that the firm had advised the complainer about the options available to the complainer if contact arrangements broke down.  It was explained that contact arrangements could still break down, even if these were included in a Minute of Agreement, and in those cases, litigation, mediation or negotiation might be necessary to resolve the issue.  The Committee commented that such Agreements containing very specific arrangements can quickly become outdated or unworkable and a balance required to be struck between having the arrangements set out and allowing for flexible arrangements.  The Committee agreed that although the specific contact arrangements were not included in the Agreement, this did not amount to Inadequate Professional Service on the part of the firm.

The Committee was satisfied in respect of (3) that the solicitor had failed to provide adequate notice that the solicitor would be unable to attend a pre-arranged meeting.  However, the Committee noted that this was an isolated incident and in the circumstances, this could not amount to Inadequate Professional Service.  Accordingly, it was decided that this issue should not be upheld.
16/68 Immigration The complainer complained that the named solicitor/firm had failed to act in their best interests by advising the complainer to proceed with a naturalisation application, despite the complainer's current immigration status. The Determination Committee was satisfied from its consideration of the evidence that the solicitor had explained the application process and had sought full information from the complainer.  The Committee noted that the solicitor had explained the good character requirements to the complainer.  It appeared to the Committee that the complainer had failed to disclose a breach of the immigration laws.

The Committee decided that the solicitor had acted appropriately, on the basis of the information disclosed, and that there was no evidence of any breach of the Service Standards.  The Committee decided not to uphold the complaint.
16/69 Executry, Wills & Trusts The complainer complained that the named solicitor/firm, when distributing the estate, had failed to settle an invoice for the Home Report, despite this having been emailed to the firm before the estate was distributed. The Determination Committee was satisfied that the evidence did not support the complainer's position, i.e. that the invoice had been sent to and received by the firm before distribution of the estate.  The Committee agreed that the firm could reasonably have been entitled to proceed on the basis that the monies received were the free net proceeds of sale.  The Committee decided that there was no evidence of an Inadequate Professional Service having been provided and accordingly, determined not to uphold the complaint.
16/70 Residential conveyancing The complainer complained that the named solicitors/firm had (1) failed to notice and/or failed to advise that there was an issue in relation to the ownership and use of a shared portion of land at the property, and (2) unduly delayed responding to the complaint. The Determination Committee decided in respect of (1) that the firm had sent the complainer the Land Certificate, which clearly showed the drying green as communal ground.  It was noted that the firm had asked the complainer to advise of any difficulties regarding the extent of the property.  The complainer, being aware that the drying green was common ground, had failed to advise the firm that the area had been fenced off.  The firm could not have been otherwise aware of this fact.  The Committee's view was that the firm had acted diligently and communicated effectively in sending a copy of the Land Certificate to the complainer and inviting the complainer to make contact if there were any issues.  As the Land Certificate wording clearly explained the title position, the Committee agreed that there were no duties incumbent upon the firm to take any further action.

Regarding (2), the Committee noted that the complainer's original e-mail did not intimate a complaint, but asked for clarification of the title issue.  This had been discussed with the complainer a few weeks previously.  The Committee was of the view that a one off failure to respond to such a query did not amount to Inadequate Professional Service.  It was noted that when a prompting request to respond was made, the firm dealt with this timeously and fully.  The Committee was satisfied that there was no evidence of any breach of the Service Standards, and it determined not to uphold the complaint.
16/71 Crime The complainer complained that the named solicitor/firm had failed effectively to challenge and/or present evidence to challenge the credibility and reliability of Crown witnesses and any accusations made about the complainer by the prosecution at the trial. The Determination Committee was satisfied that the named solicitor had acted appropriately and exercised professional judgement in deciding what evidence to challenge.  The Committee was satisfied that the Prosecutor was entitled to put the charge to the complainer and that there was no evidence to show that the named solicitor had been unreasonable in exercising their professional judgement.  The Committee agreed that it was for the Sheriff to reach a view regarding the credibility of the evidence.

The Committee decided not to uphold the complaint.
16/72 Litigation The complainer complained that the named solicitor had failed to respond to correspondence sent to the complainer by the opposing solicitors, in which they stated that they intended to proceed to raise a court action in the event of no response. The Determination Committee was satisfied that the solicitor had responded to the complainer in a timely manner and without undue delay. The Committee observed that the letter contained a deadline for response and that the complainer had not sent the letter to the solicitor until thirteen days after the deadline.  The Committee agreed that it would not have been appropriate for the solicitor to respond to the other firm until specific instructions had been received from the complainer.  In this case, the complainer did not agree with the advice provided and no agreement had been reached on how the solicitor should proceed.

The Committee was satisfied that there was no evidence of Inadequate Professional Service and it agreed not to uphold the complaint.
16/73 Residential conveyancing The complainer complained that the named solicitor/firm had failed to ensure that the paralegal dealing with the sale had advised the complainer that the property was subject to a 'Green Deal', despite this being clearly stated in the Home Report and also that the complainer was jointly liable for over £4,000. The Determination Committee decided that there was no duty on the named solicitor to examine the Home Report.  The Committee agreed that the solicitor was entitled to proceed on the basis of information provided by the complainer, i.e. that there was no Green Deal in place.

The Committee agreed that there was no evidence of a breach of the Service Standards and determined not to uphold the complaint.

 

Determination Decisions: April - June 2016

Upheld and part-upheld decisions

Decision No. Business Area Complaint Detail Outcome
16/30 Personal Injury The complainer complained that the solicitor/firm had (1) unduly delayed (over 5 months) instructing an expert report, (2) failed to ensure that the expert report was free from errors and that all relevant evidence was included in the report, (3) failed to provide a list of sources of reference considered by the expert, (4) failed to return documentation/evidence, despite various requests and despite the firm having indicated that this would be returned directly, (5) sent medical records to an expert without the complainer's knowledge or permission and in contravention of a mandate, (6) failed to give the complainer the opportunity of checking the content and accuracy of medical records before sending the same to the expert, (7) failed to inform the complainer of the instruction of the medical expert and that they were releasing the medical records, having informed the complainer that a doctor would be seen in person, (8) failed to advise that the medical expert was based in England and not Scotland, (9) failed to advise of the location of the medical records, despite repeated requests, (10) failed to adequately brief the medical expert, (11) raised a Court Summons contrary to client's instructions, (12) failed to inform the complainer that a Court Summons had been raised, (13) failed to send a draft of the Court Summons for approval before service, (14) failed to provide a copy of the Court Summons, and (15) unreasonably withdrew from acting. The Determination Committee decided to uphold issues (11), (12) and (13) as Inadequate Professional Service, i.e. that the firm had failed to follow instructions not to raise and serve the summons, failed to inform the client that the Court had authorised service of the Summons until it was actually served, and failed to send a draft of the Summons to the client to check and approve, despite there having been sufficient time to do so.

In respect of Issue (1), the Committee was satisfied that there was evidence to show that the firm had not delayed instructing an expert, as Counsel's advice and approval from the insurers was required before the instruction could take place.

Regarding Issue (2), the Committee agreed that the firm had identified and instructed a competent expert to provide a report and that all relevant evidence had been passed on to the expert to prepare the report as quickly as possible.  The Committee was satisfied that the complainer was kept updated regarding the progress of the report and that any delays or inaccuracies in the report were the fault of the expert, not the firm.    

Issue (3) was not upheld, as the Committee accepted that the firm had communicated adequately with the complainer, in that the firm had explained the reasons for not pursuing various sources of reference.

Regarding Issue (4), the Committee decided that a delay of 15 days did not amount to Inadequate Professional Service, and that there were more pressing matters to be dealt with in the lead up to the firm withdrawing from acting from the case.

In respect of Issues (5) and (6), the Committee was satisfied that there was evidence to show that the complainer had been informed that the medical notes would be sent to the expert, as indicated in the "Notes for Client" section of the mandate, and that the signing of the consent form was sufficient authority for release of the medical records.  The Committee could see no evidence that the complainer had asked (and that the firm had agreed) to the records being reviewed (and filtered) before being sent to the expert.

Regarding Issue (7), the Committee agreed that the evidence showed that the complainer had been informed that a medical report would be required, and that the firm would not be in a position to insist that the complainer be examined in person, as this would be a matter of professional judgement for the medical expert.

Issue (8) was not upheld on the basis that there was no evidence to show that the firm had failed to inform the Complainer that a medical expert was being instructed.  Also that there is no requirement for solicitors to advise clients of where the expert is based and that the applicable court rules relating to the disclosure of medical records are those relating to court actions raised in the Court of Session in Scotland, and not those for courts in England and Wales.

As regards Issue (9), the Committee decided that the omission to respond to the specific point about the whereabouts of the medical records did not amount to Inadequate Professional Service, given that this issue was amongst various other issues highlighted to the firm.  The firm had withdrawn from acting and it would be expected that the complainer's new solicitors would be in a position to address the concerns over the whereabouts of the medical records.

Issue (10) was not upheld as the Committee was satisfied that the evidence showed that all relevant information had been sent to the medical expert, including the background information, the full medical records and the complainer's comments on the report.  It was also noted that the complainer was provided with an opportunity to obtain a second opinion, but chose not to do so.

In respect of Issue (14), the Committee noted that the firm had withdrawn from acting at the time the Summons was served, and would not, therefore, be under any obligation to continue to communicate with the complainer.  The Committee accepted that there was no evidence to show that the complainer had requested a copy of the Summons and that the firm had refused to provide a copy of the Simmons.  It was also noted that the complainer's new solicitors would have been able to provide the same.

Regarding Issue (15), the Committee agreed that the evidence showed that the solicitor/client relationship had irretrievably broken down and the firm was entitled to withdraw from the case.  The Committee was satisfied that there was no evidence to suggest that there was any prejudice to the complainer and the solicitors had taken steps to protect the complainer's position.


The Committee decided that the firm should pay compensation to the complainer of Band C for inconvenience and distress. A Complaints Levy of £750 was also ordered to be paid to the SLCC. 
16/31 Residential conveyancing The complainer complained that the solicitor who acted in the sale of the property jointly owned by the complainer and a family member had (1) failed to obtain the complainer's instructions in relation to the sale, (2) failed to carry out proper checks to determine whether the complainer's family member had obtained the complainer's authority to sell, and (3) failed to account for the complainer's share of the proceeds of sale. The Determination Committee agreed that the firm had failed to take appropriate steps to ensure that they had the complainer's permission and instructions to sell the property.  The Committee noted that the firm had proceeded to conclude missives and delivered a signed Disposition in the names of the joint owners without ensuring that they had the complainer's permission to do so.  The Committee agreed that the firm's money laundering checks were insufficient and that there was no evidence of any direct contact with the complainer to ascertain that consent had been given, or that the family member had permission to act for the complainer.  In addition, the firm had failed to obtain any written authority to dispense the complainer's share of the free proceeds of sale and had failed in their obligation to account to the complainer as joint owner.

The Committee decided that the solicitors should pay compensation to the complainer of Band D for inconvenience and distress and Level 5 for actual loss.  A Complaints Levy of £3,500 was ordered to be paid to the SLCC.
16/32 Litigation The complainers complained that the firm/solicitor had (1) failed to return numerous telephone calls, (2) provided incorrect advice in respect of their claim, (3) delayed/failed to send appropriate information to SLAB, (4) unduly delayed/failed to inform the complainers that a settlement offer had been received, (5)  incorrectly raised the action against the wrong third party, (6) unduly delayed passing paperwork to the complainers' new solicitor, despite there being a mandate to do so, (7) unduly delayed/failed to inform the complainers about a court hearing and gave insufficient notice of the firm's intention to withdraw from acting, (8) unduly delayed/failed to inform the complainers that the firm was being taken over by a new firm, and (9) failed to deal with letters from SLAB and inappropriately advised the complainers not to worry about SLAB's letters. The Determination Committee was satisfied that the firm had failed to return the complainers' telephone calls, failed/delayed to send appropriate information to SLAB and to deal with letters received from SLAB.  In addition, the Committee agreed that there had been a failure on the part of the firm to advise the complainers that a settlement offer had been received and that the action had been raised against the wrong third party.  Furthermore, there was evidence of a delay in passing the relevant paperwork to the complainers' new solicitors and a delay in letting the complainers know about the court hearing.  The Committee was satisfied that these failures and delays amounted to the provision of an Inadequate Professional Service and that these issues should be upheld.

The Committee decided that there was no evidence that the solicitor had provided incorrect advice in respect of their claim. In addition, as the firm had merged with another firm after the solicitor had withdrawn from acting, there was no requirement on the solicitor to advise the complainers of the merger.  These Committee agreed that these aspects of the complaint should not be upheld.

The Committee decided that the firm should pay compensation of Band D to the complainers for the inconvenience and distress caused by the Inadequate Professional Service.  The Committee also decided that the firm should compensate the complainers for court expenses (up to a maximum of £20,000, less the Band D compensation amount).  The Committee imposed a Complaints Levy of £1,500 on the firm.
16/33 Litigation The complainer complained that the solicitor had failed to prepare adequately for a court hearing, in that the solicitor had failed to enter anything into the pleadings and as a result, the Proof could not continue. The Determination Committee decided that although the preparations for the Proof were, in general terms, carried out with an appropriate degree of competence and diligence, there was a significant specific failure to ensure that the written pleadings were in a fit state to enable the Proof to proceed and for the case to be properly presented.  The Committee agreed that this failure amounted to Inadequate Professional Service and it was agreed that the complaint should be upheld on this basis.

The Committee was satisfied that the complainer had incurred actual loss and directed the firm to pay compensation of Level 4 to the complainer, which represented the expenses attributable to the preparations for and attendance at the discharged Proof.  The Committee also directed the firm to pay compensation to the complainer of Band C for inconvenience and distress caused by the Inadequate Professional Service.  The Committee imposed a Complaints Levy of £500 on the firm.
16/34 Family The complainer complained that the solicitor/firm had (1) inappropriately attempted to condone the actions of a solicitor within the firm, despite the solicitor having failed to act on the complainer's instructions to recall the sist, (2) inappropriately attempted to justify the solicitor's behaviour and representation of the complainer's case, then tried to apportion blame and criticism on the complainer, suggesting that the complainer was being less than candid, and (3) provided inaccurate advice regarding parental rights. The Determination Committee was satisfied that (1) there was evidence the solicitor had acted diligently in advising the complainer about the risks and that an appropriate explanation had been provided as to why the solicitor had proceeded in the way that she did.  The Committee agreed that (2) the solicitor's email did not inappropriately attempt to condone behaviour or apportion blame or accuse the complainer.  The Committee decided that the email addressed the complainer's concerns in a professional manner. 

Regarding (3), the Committee agreed that there was evidence that inaccurate advice had been given to the complainer regarding parental rights and that this service was not of the quality which could reasonably be expected of a competent solicitor.

The Committee directed the firm to pay compensation of Band A to the complainer for inconvenience and distress caused by the Inadequate Professional Service.  The Committee also imposed a Complaints Levy of £150 on the firm.
16/35 Commercial property & leasing The complainers complained that the solicitors/firm had (1) failed to advise that the gas and electricity meters had been changed by tenants to “pay as you go” meters, (2) failed to obtain the complainers' agreement before agreeing to install 2 dehumidifiers, (3) failed to ensure that minutes were kept of a meeting with the tenants, despite the complainers' request to do so, (4) failed to respond to/unduly delayed responding to various requests for information/requests to inform the shared property owner about concerns regarding the roof, over a period of 17 months, (5) failed to keep the complainers updated regarding the ongoing damp and roof problem, (6) allowed the flat to be let when the damp problems remained unresolved,  (7) failed to adequately manage the changeover between tenants. The Determination Committee found (1) that the firm had failed to advise that the meters had been installed for approximately 15 months.  In addition, the Committee found that the firm had (2) failed to seek permission or obtain agreement before the dehumidifiers were hired, and (3) failed to comply with the request for a minute of the meeting to be kept, or to explain why keeping a formal minute might be inappropriate or to discuss any other options with the complainers.

The Committee decided that (4) there was an undue delay responding to one of the complainers' requests.

Regarding (5), the Committee agreed that there was evidence that the firm had failed to provide prompt updates in relation to urgent matters and to clearly communicate important information to the complainers.

In respect of (6), the Committee was satisfied that the firm had allowed tenants to move into the property, without ensuring that the flat was clean and fit for habitation.  The firm had delayed informing the complainers that the tenants had refused to live in the property due to the poor living conditions and had failed to inform them in advance that the property might not be habitable due to the leaking and damp.

As respects issue (7), the Committee found that while the firm communicated adequately during the tenancy changeover, the firm allowed the property to be let when various items were broken or missing, and thereafter delayed organising repairs and replacements.

The Committee ordered the firm to pay compensation to the complainers for actual loss at Level 2, and Band C compensation for inconvenience and distress caused to the complainers.  The Committee directed that the firm's fees should be reduced by 25%, and directed a refund of approximately £2,000 to the complainers. The Committee imposed a Complaints Levy of £750 on the firm.
16/36 Residential conveyancing The complainer complained that the solicitor/firm had (1) failed to follow instructions to communicate his offer to sell the kitchen appliances to the purchasers for £250, (2) failed to respond to the complainer's formal complaint. The Determination Committee decided that (1) the solicitor had failed to let the purchasers' solicitors know about the complainer's offer in respect of the kitchen appliances, and (2) that the firm's Client Relations Manager had failed to respond to the complaint.  The Committee agreed that these failures amounted to an Inadequate Professional Service.

The Committee ordered the firm to pay to the complainer compensation of Band A for inconvenience and distress and Level 1 for actual loss.  The Committee imposed a Complaints Levy of £750 on the firm.

 

Not upheld decisions

Decision No. Business Area Complaint Detail Outcome
16/37 Litigation The complainer complained that the solicitors had (1) failed to communicate effectively as the complainer only met the solicitor for the first time a week before the court date, was unable to meet the solicitor again, and was instead referred to a paralegal, (2) failed to agree to attend a face-to-face meeting and demanded queries in writing before the solicitor would reply, (3) inappropriately agreed with the opposing solicitor's interpretation of the financial and other information, (4) failed to appropriately advise the complainer regarding taxation matters, (5) repeatedly asked for financial information that had already been provided by the complainer's accountant, (6) failed to attend court on the appropriate date and failed to submit the appropriate paperwork to the Sheriff, and (7) misled the complainer by stating that he should not attend court in person. The Determination Committee agreed in respect of (1) that the solicitor had exercised judgement in updating the complainer by letter or email and did so frequently at key points during the litigation. 

Regarding (2), the Committee noted that the first request for a meeting had been refused on the basis that it was premature, and that this had been explained to the complainer.  The subsequent request was adhered to.  The Committee observed that there was no evidence that the complainer had requested to meet the solicitor and that she had unreasonably refused to do so.  Regarding the request for financial information to be put in writing, the Committee agreed that this was reasonable, to allow the solicitor time to consider matters before responding.  There was no evidence that the solicitor provided incorrect advise regarding tax matters.

In respect of (3), the Committee was satisfied that there was no evidence that the solicitor agreed with the opposing solicitor's assessment of the loss of earnings claim.  There was evidence, however, that the solicitor undertook independent investigations and communicated the other side's assessment with her own advice regarding a counter-proposal.

Regarding issue (4), the Committee agreed that the solicitor had provided the complainer with correct advice based on established legal principles and agreed by Counsel, a senior litigation partner and the complainer's accountant, and that the communication was in clear and understandable terms.

The Committee decided in respect of (5) that in making subsequent requests for documentation, the solicitor was seeking to ensure that the Defender's queries were addressed and that she had all of the necessary information, notwithstanding that there may have been duplication in terms of what was being requested.

In respect of (6), the Committee decided that there was insufficient evidence to confirm whether the solicitor was instructed to attend the Proof, and by that stage, the firm had withdrawn from acting and it would not have been appropriate for the solicitor to have appeared on the complainer's behalf.  The Committee commented that the fact that the Sheriff had not been advised of the notification of withdrawal was not the solicitor's fault, as she had fulfilled the duties incumbent upon her in communicating her withdrawal.

Regarding (7), the Committee noted the conflicting accounts of what the complainer had been  advised regarding attendance at court.  The requirement to attend was, however, communicated by letter.  Accordingly, the Committee was satisfied that the solicitor had acted diligently in providing advice, and although there was an error as to the date in the letter, this was not material and the intention of the letter had been understood.

The Committee reached the view that none of the issues should be upheld.
16/38 Residential conveyancing The complainers complained that the solicitors had (1) failed to address their concerns about the Home Report and various other reports and issues concerning the condition of the property and availability of guarantees and warranties, which they had raised during a meeting, and (2) acted in a conflict of interest situation, as the firm was also acting for the sellers. The Determination Committee decided that (1) the evidence showed that the solicitor did not fail to address the complainers' concerns raised during the meeting and that the transaction had settled on the complainers' instruction.  Regarding (2), the Committee accepted that the evidence showed that the solicitors had acted in accordance with the Law Society's Practice Rules in relation to conflict of interest and that there was no dispute between the purchasers and sellers during the transaction.  The Committee was of the view that neither of the issues should be upheld.
16/39 Crime The complainer complained that the solicitor/firm had (a) acted in a conflict of interest situation and/or breached his confidentiality when defending the complainer in a murder charge while at the same time acting for a number of the Crown witnesses. The Determination Committee acknowledged that the firm had acted for a number of the Crown witnesses, albeit not at the same time as the complainer's trial.  Although there was the potential for a conflict of interest to arise if the complainer instructed the solicitor to attack the character of the witnesses, the Committee was satisfied that the complainer had agreed with the solicitor that the character of the witnesses should not be attacked, so no conflict of interest arose.  The Committee was satisfied that there was no evidence of any breach of confidentiality by the solicitor.  On this basis, the Committee decided that the complaint should not be upheld.
16/40 Employment The complainer complained that the solicitor/firm had (1) failed to implement the complainer's instructions, despite having advised the complainer that the circumstances merited financial compensation, (2) failed/unduly delayed until February 2014, advising the complainer that the firm was no longer doing any work, despite having closed the files in February 2012, and (3) failed to respond to the complainer's attempts to contact the solicitor by telephone between September 2013 and February 2014. The Determination Committee was satisfied that (1) the evidence showed that the solicitor did take action in respect of all the matters on behalf of the complainer.  The Committee was also satisfied in respect of (2) and (3) that the evidence confirmed that all work undertaken by the solicitor had been completed by the end of 2011, and that there was no evidence to support the complainer's contention that the firm had agreed to pursue matters on his behalf after February 2012.  The Committee noted that the firm had ceased trading by the dates provided in (3), and the firm had not, therefore, been providing the complainer with a service during those dates.  The Committee agreed there was no evidence of Inadequate Professional Service and decided that the complaint should not be upheld.
16/41 Litigation The complainer complained that the solicitors had failed to make the complainer aware that by not opposing the motion for taxation or contesting the taxation, this would lead to a Decree being granted against the complainer, which could be instantly enforced. The Determination Committee was satisfied that the firm's terms of business letter clearly set out that if there was a fee dispute, the file would be remitted for taxation.  The Committee was satisfied that there was evidence that the complainer was in direct liaison with the firm's law accountant and the complainer had instructed his own law accountants.  The Committee noted that the Motion for Taxation had been intimated by the firm to the complainer and that the complainer had been advised that representations could be made to the Auditor.  The firm had sent a copy of the Notice of Taxation, issued by the Auditor, to the complainer and the complainer did not lodge objections timeously or attend the Taxation.  The Committee noted that the firm had forewarned the complainer on more than one occasion that if payment of their fees was not forthcoming, the firm would seek an extract Decree.  For these reasons, the Committee decided that the complaint should not be upheld.
16/42 Executries, Will and Trusts The complainer complained that the solicitors/firm had failed/unduly delayed winding up a bank account relative to the estate, despite the complainer having suggested that the account should be abandoned due to the small sum of money held in the account. The Determination Committee was satisfied from the evidence that although the complainer had suggested that the account should be abandoned, the complainer had also said that the co-executors would be so advised.  The Committee noted that there was no evidence that the firm had agreed to take any further action regarding the account and that it would have been reasonable for the firm to have awaited confirmation from the co-executors before proceeding.  The Committee was satisfied that there was no evidence of any undue delay on the part of the solicitors, and on this basis, the Committee determined not to uphold the complaint.
16/43 Residential conveyancing The complainer complained that the solicitors/firm had (1) failed to act in the firm's best interests of their clients by refusing to correspond and liaise directly with the complainer once a Memorandum of Understanding had been signed by the parties, and (2) failed to act in the firm's client's best interests by refusing to meet the complainer. The Determination Committee accepted that the evidence showed that the solicitor had followed her clients' instructions not to correspond directly with and meet the complainer, and in doing so, was acting in the best interests of her client.  Accordingly, the Committee decided that the complaint should not be upheld.
16/44 Residential conveyancing/ Executry The complainer complained (as joint beneficiary) that the solicitors/firm had failed to advise, either verbally or in writing, that the cost of the work would exceed the reasonable fee for selling the property. The Determination Committee noted that no estimate of fees had been requested or provided, and there was no fixed fee agreed for the sale.  The basis for the firm's charges was clearly set out in their Terms and Conditions.  The Committee was of the view that the complainer was aware of the work being carried out and the solicitor was under no ongoing obligation to explain about fees.  In addition, the Auditor of Court judged the fee charged to be reasonable.  The Committee determined that the firm's client had not been provided with an Inadequate Professional Service and accordingly, there was no direct (adverse) affect on the complainer.
16/45 Residential conveyancing/ Executry The complainer complained (as executor) that the solicitors/firm had failed to advise, either verbally or in writing, that the cost of the work would exceed the reasonable fee for selling the property. The Determination Committee noted that no estimate of fees had been requested or provided, and there was no fixed fee agreed for the sale.  The basis for the firm's charges was clearly set out in their Terms and Conditions.  The Committee was of the view that the complainer was aware of the work being carried out and the solicitor was under no ongoing obligation to explain about fees.  In addition, the Auditor of Court judged the fee charged to be reasonable.  The Committee decided not to uphold the complaint. 
16/46 Residential conveyancing The complainer complained that the solicitor/firm had (1) failed to follow instructions not to proceed with the purchase unless the whole of the rear garden ground of the property was included in the sale, (2) inappropriately advised the complainer that they should have been told sooner about discrepancies regarding the garden area, and (3) wrongly stated to the complainer's new solicitors that the missives for the purchase had concluded before any issues regarding the garden had been raised. The Determination Committee was satisfied that (1) there was no evidence that the complainer had instructed the firm not to proceed unless all the rear garden was included in the sale.  The Committee agreed that (2) the solicitor's comment that the complainer should have told them sooner about the discrepancies was appropriate, as the evidence on the firm's file indicated that the complainer had received the title deed showing the discrepancy more than 5 months before this was notified to the firm. The Committee was also satisfied in respect of (3), that the evidence showed that the solicitors were correct in advising the complainer's new solicitors that the missives had concluded for the purchase before any queries had been raised by the complainer about the garden ground.  Due to the fact that there was no evidence that the firm had breached any of the Service Standards, the Committee determined that the complaint should not be upheld.
16/47 Litigation The complainer (acting as Power of Attorney) complained that the solicitors/firm had (1) unduly delayed progressing matters between August 2013 and December 2014, and (2) failed to explain what the advocate meant when they stated that a "Mandatory" would have to be appointed to attend at Court. The Determination Committee decided in respect of (1), that there was no evidence of any undue delay between the stated dates.  The Committee was satisfied that the claims raised complex issues of liability, quantum and evidential challenges, which required the firm to undertake extensive investigations and enquiries.  Although the process of doing so was time-consuming, it was appropriate and necessary to ensure that the claims were adequately prepared.  The Committee agreed that there was no evidence of Inadequate Professional Service to the firm's own clients and as such, there was no direct affect on the complainer.

Regarding (2), the Committee found that there was no evidence that the complainer, as representative of the firm's clients, had communicated that he did not understand the meaning of the term “Mandatory”.  The complainer's subsequent correspondence gave no suggestion this term was not understood and the Committee's view, therefore was that it was reasonable for the solicitor to form the view that this had been understood, particularly as it had been discussed at the consultation and the meaning was not queried at the time.  The Committee decided not to uphold this issue.
16/48 Crime The complainer complained that the solicitor/firm had (1) failed to properly advise the complainer about the merits of the defence of the case, (2) caused greater expense to the complainer by allowing the case to run, when the complainer was later advised to abandon the case and plead guilty, and (3) failed to advise the complainer to enter a guilty plea at the earliest opportunity, so as to avoid a maximum fine. The Determination Committee decided that in the particular circumstances of the case, it was reasonable and within the range of professional opinion for the solicitor not to have advised the complainer that his defence had no merit and should not be maintained.  The Committee agreed that there had been no breach of the Service Standards and it determined not to uphold any of the issues of complaint.  
16/49 Crime The complainer complained that the solicitor/firm (1) failed to advise the complainer at any time during the process of the option of pleading to a lesser charge, (2) failed to advise the complainer at the outset as to the prospects of successfully defending the charges, despite numerous requests, (3) failed to advise the complainer of the court process and what would happen, what was expected or permitted, and (4) was unprepared for the court hearing and provided inadequate instructions to the local agent. The Determination Committee agreed in respect of (1), that the evidence in the firm's file did not support the assertions made by the complainer.  The Committee was satisfied that the evidence showed that all possible outcomes in relation to the charges had been discussed with the complainer. 

Regarding (2), the Committee agreed that there was no evidence to show that the complainer had made numerous requests of the firm for advice on prospects of successfully defending the charges. 

In respect of (3), the Committee noted that the firm's file recorded that the complainer had been in contact with and had been contacted by the firm on a regular basis and that there were opportunities for the complainer to ask for further guidance if he had required this in relation to court procedure.  The Committee also noted that there was a note confirming that the local agents had confirmed that the trial procedure had been explained fully to the complainer.

Regarding (4), the Committee was of the view that there was no evidence to show that the solicitor was unprepared; the objective of the court appearance was simply to adjourn the trial and that was the outcome achieved.

The Committee agreed that there was no evidence of Inadequate Professional Service on the part of the firm and accordingly, the Committee determined not to uphold the complaint.

 

Determination Decisions: January - March 2016

Upheld and part-upheld decisions

Decision No. Business Area Complaint Detail Outcome
16/1 Residential conveyancing The complainer complained that the named solicitor had (a) failed to obtain instructions from the complainer's partner until a week before completion of the sale, and (b) failed to ensure that there was a provision in a Minute of Agreement for the sale proceeds to be held on deposit, rather than distributed on completion of the sale. The Determination Committee was satisfied that the solicitor had acted correctly in distributing the funds, but that there was lack of effective communication with the complainer prior to the sale about distribution.  The Committee agreed that the solicitor had failed to act in the best interests of the complainer by failing to clearly explain what would happen in the event of implementation of a Minute of Agreement agreeing to equal division of the sale proceeds.

The Committee decided that both issues amounted to inadequate professional service.  The Committee decided that the firm should pay to the complainer compensation of Band C for distress and  inconvenience on several occasions.  The Committee directed the firm to pay a Complaints Levy of £500.
16/2 Executry The complainer complained that the opposing named solicitor had failed to respond to a significant amount of correspondence sent by their own legal advisor over a significant period of time. The Determination Committee decided that there was sufficient evidence to support the complaint that the firm had failed to reply to 12 items of correspondence over a period of approx. 20 months.  The Committee agreed that the failure had resulted in an inadequate professional service having been provided to the firm's own client and having reached that conclusion, the Committee was satisfied that there was a direct adverse effect on the complainer.

The Committee decided to uphold the complaint and  ordered the firm to pay to the complainer compensation of Band B for inconvenience and distress and level 1 for actual loss. The Committee directed the firm to pay a Complaints Levy of £150.
16/3 Executry The complainer complained that the opposing named solicitor had failed to respond to a significant amount of correspondence sent by their own legal advisor over a significant period of time. The Determination Committee decided that there was sufficient evidence to support the complaint that the firm had failed to reply to 12 items of correspondence over a period of approx. 20 months.  The Committee agreed that the failure had resulted in an inadequate professional service having been provided to the firm's own client and having reached that conclusion, the Committee was satisfied that there was a direct adverse effect on the complainer.

The Committee decided to uphold the complaint and  ordered the firm to pay to the complainer compensation of Band B for inconvenience and distress and level 1 for actual loss. The Committee directed the firm to pay a Complaints Levy of £150.
16/4 Executry The complainer complained that the opposing named solicitor had failed to respond to a significant amount of correspondence sent by their own legal advisor over a significant period of time. The Determination Committee decided that there was sufficient evidence to support the complaint that the firm had failed to reply to 12 items of correspondence over a period of approx. 20 months.  The Committee agreed that the failure had resulted in an inadequate professional service having been provided to the firm's own client and having reached that conclusion, the Committee was satisfied that there was a direct adverse effect on the complainer.

The Committee decided to uphold the complaint and  ordered the firm to pay to the complainer compensation of Band B for inconvenience and distress and level 1 for actual loss. The Committee directed the firm to pay a Complaints Levy of £150.
16/5 Executry The complainer complained that the opposing named solicitor had failed to respond to a significant amount of correspondence sent by their own legal advisor over a significant period of time. The Determination Committee decided that there was sufficient evidence to support the complaint that the firm had failed to reply to 12 items of correspondence over a period of approx. 20 months.  The Committee agreed that the failure had resulted in an inadequate professional service having been provided to the firm's own client and having reached that conclusion, the Committee was satisfied that there was a direct adverse effect on the complainer.

The Committee decided to uphold the complaint and  ordered the firm to pay to the complainer compensation of Band B for inconvenience and distress and level 1 for actual loss. The Committee directed the firm to pay a Complaints Levy of £150.
16/6 Family The complainer complained that the named solicitor had (a) advised the complainer at the initial meeting that the information relating to the source of the deposit was not required, but later advised that this information was vital and incorrectly alleged that the complainer had failed to provide this information at the initial meeting, (b) failed to communicate effectively by failing to respond to basic questions, (c) failed to proceed with division of assets and sale proceeds when instructed, and (d) failed to deal adequately with the complaint.  The Determination Committee decided that there was sufficient evidence to uphold issues (a) and (c) as inadequate professional service.

Regarding (a), the Committee agreed that the solicitor had failed to identify the client's objectives at the outset, and thus advised the complainer to pursue an un-necessary course of action.

The Committee decided in respect of (b) that the client had been kept informed during the case.  The fact that the solicitor had not been able to answer very specific questions about matters extraneous to the case had also been explained, and as such, there was no breach of the Service Standards.  

In respect of (c), the Committee was satisfied that the solicitor had delayed raising the action for several weeks.

Regarding (d), the Committee agreed that the evidence showed that the solicitor had attempted to address the complainer's concerns, and that the suggestion to the client to seek alternative representation was unreasonable or unusual where dissatisfaction had been raised.

The Committee decided to uphold the complaint and  ordered the firm to reduce its fees by one third and to pay to the complainer compensation of Band A for inconvenience and distress.  The Committee directed the firm to pay a Complaints Levy of £700.
16/7 Residential conveyancing The complainer complained that the named solicitors and the firm had (a) unduly delayed registering the disposition, and (b) delayed informing the complainer of the mistake. The Determination Committee decided that there was sufficient evidence to uphold a finding of inadequate professional service against the firm.

The Committee decided, (a) the solicitor had failed to prepare and register the disposition following settlement and had delayed registration by approx. a year and a half.

In respect of (b), the Committee agreed that the solicitor had failed to inform the client that the disposition had not been registered timeously, and only after a number of months, once the defect had been rectified.

The Committee ordered the firm to refund part of the fees (£100) and outlays (£30), and to pay to the complainer compensation of Band B for inconvenience and distress.  The Committee directed the firm to pay a Complaints Levy of £500.
16/8 Family The complainer complained that the named solicitor and the firm had (a) delayed/failed to obtain all of the husband's financial information, failed to set up meetings and failed to follow instructions to communicate with the opposing solicitor, (b) failed to provide consistent advice, (c) included incorrect information in the offer of settlement, (d) failed to thoroughly examine the proposals for settlement, (e) failed to submit cravings on the complainer's behalf, (f) failed to respond to requests for an interim account and failed to keep updated regarding escalating costs, and (g) delayed settlement negotiations. The Determination Committee was of the view that there was no evidence to support the complaint, save as for issues (e) and (f) regarding the failure to submit cravings in the Defence, as required by the Ordinary Cause Rules, and the failure to issue an interim account as per the complainer's request, or communicate adequately with the complainer about the increasing fees.  The Committee was satisfied that these issues could amount to inadequate professional service, as there had clearly been a breach of the Service Standards for diligence and communication.

The Committee ordered the firm to pay compensation to the complainer of Band B for the inconvenience and distress caused by the inadequate professional service.  The Committee directed the firm to pay a Complaints Levy of £500.
16/9 Litigation The complainer complained that the named solicitor and the firm had (a) raised an action incorrectly naming the complainer individually, rather than in the name of the business, (b) failed to lodge the application timeously, (c) failed to lodge a properly framed application and delayed amending the application. The Determination Committee decided that (a) there was insufficient evidence to reach any conclusion that the court action had been raised in the name of an incorrect party.  However, the Committee was satisfied that (b) the firm had failed to exercise the normal care and diligence expected of a competent solicitor by delaying the lodging of the application, and (c) failing to properly frame and amend the application.

The Committee decided to uphold the complaint and  ordered the firm to pay compensation of Band D for inconvenience and distress.  The Committee directed that no fees or outlays should be charged to the complainer.  The Committee directed the firm to pay a Complaints Levy of £800.
16/10 Litigation The complainer complained that the opposing named solicitor and the firm had failed to act in the best interests of his client by unduly delaying the conclusion of the dispute for over 2 years. The Determination Committee was satisfied that the cumulative effect of the identified delays adversely impacted on the service provided by the firm to its own client. Consequently, the complainer suffered as a direct effect of the deficiencies in the service to the client.

The Committee ordered the firm to pay compensation to the complainer of Level 4 for actual loss and Band B for inconvenience and distress.  The Committee directed the firm to pay a Complaints Levy of £300.
16/11 Residential conveyancing The complainers complained that the named solicitor had (a) failed to ensure that a Completion/Habitation Certificate was available at conclusion of the purchase, (b) failed to advise of the consequences of completing without the Certificate, (c) failed to take instructions/obtain informed consent before agreeing a retention sum with the builder's solicitors, and (d) failed to advise prior to completion that the property had not been passed as fit for habitation. The Determination Committee was satisfied that the firm (a) did not take all reasonable steps to ensure that their clients' interests were protected at settlement, and (b) & (d) failed to clearly and fully explain the significance of settling without the relevant Completion and Habitation certificates. The Committee accepted that the firm had not investigated why the Certificate had not been issued or asked about any underlying issues.

Regarding (c), although the Committee was satisfied that the firm had sought instructions about the retention of £10,000, there appeared to be no evidence to show that the consequences of proceeding in the way suggested by the developers was explained to the complainers, and that they were not advised about what a Completion Certificate was or the implications of proceeding without one.

The Committee ordered the firm to pay to each the complainers compensation of Band D for inconvenience and distress.  The Committee directed that fees in the sum of £660 (plus VAT) should be refunded to the complainers.  The Committee directed the firm to pay a Complaints Levy of £3,000.
16/12 Family The complainer complained that the named solicitor and the firm had prepared an initial writ which contained a number of serious errors, including incorrect details of the children's address and what was in the children's best interests. The Determination Committee was satisfied that the evidence showed that the firm had failed to ensure that the writ contained the necessary averments and fundamental flaws, which resulted in the action having to be dismissed and resurrected by newly instructed agents.

The Committee ordered the firm to pay to the complainer compensation of Band B for inconvenience and distress.  The Committee directed that there should be a full refund of fees (£700) and no further fees charged to the complainer.  The Committee directed the firm to pay a Complaints Levy of £400.
16/13 Family The complainer complained that the named solicitor had (a) failed to deal with a Motion to recall the Sist and request a Proof, contrary to numerous requests, (b) failed to submit the Motion to Court and charged inappropriately for doing so, (c) unduly delayed sending the Motion to the opposing solicitors, despite confirming that this would be carried out the following week, (d) unduly delayed updating on the position regarding the failed submission of the Motion, despite having given an undertaking to do so, (e) unduly delayed reminding the opposing solicitors that a response was still outstanding, despite two reminders to do so, (f) unduly delayed forwarding correspondence from the opposing solicitors, despite being reminded and advised of the urgency of the matter, (g) failed to raise various financial issues with the opposing solicitors, despite numerous requests to do so, (h) failed to confirm advice provided in writing, despite having agreed to do so, (i) failed to challenge a report, despite having accepted instructions to do so, (j) declined to provide further advice until the outstanding account had been settled, despite this being contrary to the terms of business, and (k) failed to deal adequately with the complaint, by ignoring concerns. The Determination Committee was satisfied that (a) & (b) the solicitor had failed to enrol a Motion, despite having undertaken to do so and charged the complainer for having done so.

Regarding (c), although the Committee was content that the complainer had been advised of a timescale, there was only a 4 day delay.  The Committee was not satisfied that this short delay amounted to an inadequate professional service.

In respect of (d), the Committee noted that there had been a 4 week period between the date when the solicitor intended to enrol the Motion and the failure to do so being advised to the complainer.  The Committee's view was that the solicitor should know the client's business at all times, regardless of when he actually remembered the oversight.  The Committee's view was that the delay was a breach of the standards of both diligence and communication and amounted to inadequate professional service.

Regarding (e), the Committee was satisfied that there had been a 5 week delay, despite 5 prompts by the complainer.

As regards (f), the Committee was satisfied that there had been a 4 week delay in the information being provided to the complainer, despite the solicitor being aware of the urgency.

In respect of (g), the Committee agreed that the solicitor had failed to follow instructions in this regard on at least 4 occasions.

Regarding (h), the Committee was satisfied that the evidence showed that the complainer had requested the information on a number of occasions, and that this had not been provided.  The solicitor had the opportunity of clarifying the information sought after the meeting, as subsequent requests were made.

In respect of (i), the Committee agreed that the evidence did not support the complaint that the solicitor had been asked to challenge the content of the report, other than in relation to fees.  Accordingly, this issue was not upheld.

Regarding (j), the Committee agreed that the solicitor had acted unreasonably by refusing to continue to provide advice to the complainer prior to the expiry of 30 days for settlement of the account, as allowed for in the terms of business letter.

Finally, in respect of (k), the Committee noted that there was no evidence to support the solicitor's indication that the complainer had been invited to discuss the complaint, as per the terms of business letter.  The Committee was satisfied that without written confirmation and the complainer having denied having received any such invitation, that there had been a failure to comply with the terms of business and that this failure amounted to an inadequate professional service.

The Committee decided to uphold the complaint in part and ordered the firm to pay compensation to the complainer of Band C for inconvenience and distress.  The Committee directed the firm to pay a Complaints Levy of £700.
16/14 Residential conveyancing The complainer complained that the named solicitors and the firm had (a) failed to advise that a more in depth survey report should be obtained, (b) failed to obtain/discuss the terms of a timber report, (c) failed to follow up the issue of guarantees for damp treatment and woodworm, and (d) failed to advise of notification of timber infestation requiring full chemical works being undertaken. The Determination Committee agreed that the firm had failed to provide the complainer with documents relating to previous investigations of damp and timber defects and failed to advise the complainer that further investigations should be carried out given the terms of those documents.  The Committee also agreed that one of the named solicitors had failed to obtain a copy of the report instructed by the complainer and did not advise about its terms prior to the conclusion of the missives.  The Committee was satisfied that one of the named solicitors had failed to follow up the issues of guarantees and that the firm had failed to advise of the terms of a letter from the sellers advising that there was an infestation of woodworm and that full chemical works should be carried out.

The Committee ordered the firm to pay compensation to the complainer of Band C for the distress and inconvenience caused by the inadequate professional service.  The Committee also decided that the firm's fees should be reduced by 35% (approx. £250 plus VAT) and refunded to the complainer.  The Committee directed the firm to pay a Complaints Levy of £1,000.
16/15 Residential conveyancing The complainer complained that the opposing named solicitor and/or the firm had failed to register the sale of the ground or have the title deeds updated in relation to the part of the complainer's garden that the firm's client had purchased. The Determination Committee agreed that the solicitor had failed to record the title deed in favour of the firm's own client (the complainer's neighbour), resulting in an inadequate professional service to their own client and which had a direct adverse impact on the complainer.

The Committee ordered the firm to pay to the complainer compensation of Band A for the inconvenience and distress and level 2 for actual loss, due to the need for a new deed plan to be prepared.  The Committee directed the firm to pay a Complaints Levy of £200.
16/16 Family law; failing to respond The complainer complained about the named solicitor and/or the firm had (a) failed to include information required in a Pensions Sharing Order and failed to ensure that the Schedule was attached to the Minute of Agreement, (b) failed to ensure that the Minute of Agreement was sufficiently robust regarding the pension entitlement and net proceeds of sale, (c) failed to intimate the Agreement and Decree to the pension trustees within the appropriate statutory timescale, (d) failed to distribute the proceeds of sale in accordance with the Minute of Agreement and unduly delayed discharging the bank loan, (e) inappropriately and without authority, deducted the fee note from the proceeds of sale without having issued a fee note, (f) erroneously withheld the balance of the proceeds of sale, (g) failed to raise a court action, despite having been instructed to do so, (h) failed to respond to the letter of complaint and failed to provide a breakdown of fees, and (i) failed to implement a mandate. The Determination Committee was satisfied that the evidence showed that the firm had (a) failed to ensure that the pension plan details were contained in the document sent to the pension trustees, (d) failed to distribute funds timeously, and (e) deducted fees from retained funds without the knowledge of the complainer. The Committee was not satisfied that the evidence supported the remaining issues of complaint or that there was lack of evidence to prove these issues on the balance of probabilities.

The Committee ordered the firm to pay compensation to the complainer of Band B for inconvenience and distress, and that fees charged should be reduced by £100.  The Committee directed the firm to pay a Complaints Levy of £400.
16/17 Residential conveyancing The complainer complained that the named solicitor and the firm had (a) failed to obtain a Letter of Comfort from the Council and/or failed to determine the exact amount of the liabilities owed by the sellers in respect of outstanding Statutory  Notices, and (b) failed to negotiate an appropriate retention amount in the missives. The Determination Committee decided that (a) there was evidence that the firm failed to take adequate steps to determine the liabilities of the sellers, and (b) that the firm failed to negotiate an appropriate retention.  The Committee decided that the complaint should be upheld to this extent.

The Committee ordered the firm to pay to the complainer compensation of Band C for distress and inconvenience and Level 4 for actual loss.  The Committee directed the firm to pay a Complaints Levy of £800.
16/18 Litigation The complainers complained that the named solicitor and/or the firm had (a) systematically lied regarding the action being taken in connection with the claim, and (b) falsely charged the complainers for costs in relation to water and planning applications. The Determination Committee decided that (a) there was sufficient evidence to support the complainers' contention that the solicitor had incorrectly advised them that various steps had taken place to progress the action, and (b) the solicitor falsely advised the complainers that the sellers would pay for the costs of the work, despite having obtained no undertaking that they would do so.

The Committee ordered the firm to pay to each of the complainers compensation of Band D for distress and inconvenience, and that no fee note should be rendered.  The Committee directed the firm to pay a Complaints Levy of £1,000.
16/19 Residential conveyancing The complainer complained that the named solicitor and/or the firm had failed to advise about the Capital Gains Tax liability on the transfer of title. The Determination Committee upheld the complaint on the basis that the options available to the complainer should have been explored, and the complainer had not been advised of the tax liability and/or was not advised to seek tax advice from another source.  The Committee's view was that the complainer had suffered a loss of opportunity to consider all available options and was not fully informed as a result of the inadequate professional service.

The Committee ordered the firm to pay compensation to the complainer of Band D for worry and distress. The Committee directed the firm to pay a Complaints Levy of £850.
16/20 Litigation The complainer complained that the named solicitor and/or the firm had (a) failed to advise him at any time about the strength of his claim, (b) failed to advise him of the potential for a costs order being made if the case was lost, and (c) failed to keep the complainer updated or advised about what SLAB required for the funding application. The Determination Committee decided in respect of (a) that the firm had failed to give appropriate advice, either in writing or otherwise, about the strength of the claim. Such advice should have been provided in writing before court proceedings were raised.  In respect of (b), the Committee was satisfied that the evidence indicated that the firm had failed to provide appropriate advice regarding potential liability for expenses if the action was unsuccessful, or the potential magnitude of that liability.  The Committee agreed that the evidence did not support (c), that the firm had advised the complainer of the date of the hearing, that the firm had passed on any requests received from SLAB, or that SLAB had been in touch with the complainer directly.

The Committee ordered the firm to pay to the complainer compensation of Level 5 for actual loss and Band C for inconvenience and distress resulting from the inadequate professional service.  Additionally, the Committee decided that the firm should not be entitled to charge any fees or outlays for the service provided.  The Committee directed the firm to pay a Complaints Levy of £1,500.
16/21 Executry The complainer complained that the named solicitor and/or the firm had failed to ensure prompt and transparent fee arrangements, having issued a final fee note in June 2014, for work carried out between 2008 and 2013, without any prior warning or discussion. The Determination Committee decided that there was evidence of a failure to set out the basis upon which fees would be charged from the outset and the delay issuing the fee note at the conclusion of the instruction amounted to inadequate professional service.

The Committee ordered the firm to pay compensation to the complainer of Band A for inconvenience and distress caused by the inadequate professional service.  The Committee directed the firm to pay a Complaints Levy of £50.
16/22 Executry The complainer complained that the named solicitor and/or the firm had (a) failed/delayed to respond to telephone calls and keep the complainer updated, (b) failed to explain the increase in fees, despite numerous requests, and (c) failed to provide adequate advice regarding an insurance policy claim. The Determination Committee decided regarding (b) that the failure by the firm to keep the complainer updated regarding increasing costs and that the fees had exceeded the original amount quoted amounted to an inadequate professional service.  The Committee noted that the firm had failed to provided the complainer with a copy of the Law Accountants fee note, despite there having been a fee rendered for the service and that the letter of engagement was unclear and difficult to understand.

The Committee decided that the evidence showed that the firm had (a) been in regular communication with the complainer who had been kept up to date.  The Committee could find no evidence to support complaint (c).

The Committee ordered the firm to pay to the complainer compensation of Band B for distress and inconvenience and to refund excess fees (approx. £5000).  The Committee directed the firm to pay a Complaints Levy of £250.
16/23 Residential conveyancing The complainer complained that the named solicitors and/or the firm had (a) failed to adequately advise of the position regarding the alterations to the attic space, (b) failed to check/advise the complainer to ensure that the attic alterations were in line with building regulations, and (c) failed to fully advise of the risks proceeding with the purchase without verifying the position regarding the alterations.  The Determination Committee decided to uphold all 3 issues as inadequate professional service, as the evidence supported the complaint that the firm had failed to address all 3 matters adequately.  The Committee was satisfied that the firm had failed to fully advise the complainer about the potential issues regarding the building control documentation for the alterations, there was a failure to communicate throughout the transaction, despite requests for clarification, and that the firm had not alerted the complainer to the potential risks or consequences of proceeding without the adequate documentation.  

The Committee ordered the firm to pay compensation to the complainer of Level 2 for actual loss and Band D for distress and inconvenience.  The Committee also ordered a full fee refund (approx. £600 plus VAT).  The Committee directed the firm to pay a Complaints Levy of £2,000. 
16/24 Family The complainer complained that the opposing solicitor and/or the firm had failed to obtemper an Interlocutor (which ordered the firm to notify the complainer of a court hearing date), by sending the notice to an address where the complainer had not lived for a number of years.  The Determination Committee decided that the firm had failed to fulfil the commitment to the Court, to the client and to the complainer, to prepare the case diligently and to communicate effectively.  The Committee accepted that the firm had served papers at an incorrect address, which did not match the address on the Court Record for the action.  As a result, the Committee was satisfied that the firm had provided their own client with an inadequate professional service, as a client would expect the firm to properly designate the parties and the failure to do so, could have led to additional time and cost to the client for the rectification of any errors. The Committee agreed that there had been a direct adverse impact on the complainer and on that basis, the complaint was upheld.

The Committee ordered the firm to pay compensation to the complainer of Band B for the inconvenience and distress caused by the inadequate professional service.  The Committee directed the firm to pay a Complaints Levy of £200.

 

Not upheld decisions

16/25 Litigation The complainer complained that the named solicitor and the firm had (a) failed to conduct the court case adequately by ignoring expert opinions, reports, evidence and failing to call specific witnesses and had quoted an incorrect name in the court documents, (b) failed to provide adequate advice about the settlement, by failing to advise that the opponent was obliged to issue a VAT receipt, despite instructions that the offer was to be inclusive of VAT, and (c) acted in an aggressive manner and threatened to cease acting on multiple occasions. The Determination Committee was satisfied that the solicitor had exercised professional judgement and there was no evidence to show that this was unreasonable.  The Committee agreed that the solicitor followed clear instructions and there was no evidence that the solicitor failed to advise adequately about the terms of the settlement.  The Committee agreed that the evidence showed effective and clear communication by the solicitor and there was no evidence to support the complaint that the solicitor had acted in an aggressive manner.

The Committee decided not to uphold the complaint.
16/26 Family The complainer complained that the named solicitors had (a) failed to provide adequate information about fees, (b) failed to keep the bank informed of a significant overspend, despite being aware of the limitations in funding, (c) failed to follow instructions by allowing 3 staff members to attend at court, thus incurring unnecessary costs, (d) failed to pay Counsel's fees before taking the firm's fees, and (e) failed to advise Counsel to withdraw from acting. The Determination Committee decided that (a) sufficient information about fees had been provided before the offer was rejected, (b) the bank had been kept up to date and advised of the reasons for the increases in funding, (c) the firm did not accept the instruction to only have 1 person at the court hearing.  The firm did not, therefore, fail to fulfil a commitment to the complainer and fees were not unnecessarily incurred, as the need for additional staff was explained and professional judgement in this regard was exercised reasonably. 

Regarding (d), the Committee could find no evidence to support the complaint that an instruction had been given or accepted that Counsel should be paid in the first instance.

In respect of (e), again the Committee could find no evidence to support the complaint about the withdrawal of Senior Counsel from the case.

The Committee decided not to uphold the complaint.
16/27 Family The complainer complained that the named solicitor and/or the firm had provided inadequate and inconsistent advice about the availability of Legal Aid within the firm.  The Determination Committee was satisfied that the evidence showed that the advice provided was clear, consistent and in accordance with the firm's policy on Legal Aid.  The Committee did not consider that there was any contradictory information provided, or that the quality of communication from the solicitor and/or the firm was inadequate.

The Committee decided not to uphold the complaint.
16/28 Residential conveyancing The complainer complained that the named solicitor of the firm had failed to advise the complainer to take steps to confirm the validity of a Letter of Comfort or advise the complainer to insist on a Certificate of Completion from the sellers. The Determination Committee was satisfied that the evidence showed that the firm had adequately advised the complainer of the available options and how to protect the position.  The Committee agreed that there was no requirement for the firm to insist on a Completion Certificate.

The Committee decided not to uphold the complaint.

 

Determination Decisions: October – December 2015

Upheld and part-upheld decisions 

Decision No. Business area Complaint detail Outcome
15/13 Litigation - personal injury The complainer complained that the solicitor/firm had (a) failed to provide adequate notice of a conference call, (b) failed to provide up to date medical records to the expert, (c) failed to ensure that travel payments were reimbursed, (d) unduly delayed sending progress reports, (e) failed to give adequate notice to allow the complainer sufficient time to submit additional evidence, (f) incorrectly advised not to attend PTR meeting, (g) failed to properly brief Counsel, and (h) failed to keep Counsel updated re: medical evidence. The Determination Committee decided that the firm had (a) acted reasonably in taking steps to arrange the conference at last minute at the behest of Counsel, (b) sent the complete set of medical records to the expert, (c) included the expenses in the global settlement, (d) unduly delayed sending the reports and as such, the firm had failed to keep the complainer advised of significant developments in the case, (e) made a reasonable request, which had been accepted by the complainer. 

In respect of (f), the Committee noted that there were 2 versions of events and no additional evidence to weigh the balance in favour of one party over the other.

Regarding (g) & (h), the Committee was satisfied that the evidence did not support the complaints.

In respect of the one issue that the Committee decided should be upheld, the firm was ordered to pay compensation of Band A for inconvenience and distress. The Committee decided to waive the Complaints Levy.
15/14 Employment The complainer complained that the solicitor/firm had (a) made a mistake in the drafting of a document, by putting forward a claim which was inappropriate to the circumstances of the case, and (b) failed/delayed issuing a terms of business letter. The Determination Committee decided that the firm had (a) made an obvious mistake in the drafting of a document, but that this was an error that could be (and was) rectified. The Committee did not consider that the oversight (which was not deliberate) was sufficiently serious enough to amount to inadequate professional service.

Regarding (b), the Committee decided that there had been a delay issuing a terms of business letter breached the principles of diligence and communication of the service standards and it decided to uphold this issue.

The Committee ordered the firm to pay compensation to the complainer of Band A for inconvenience and distress. A Complaints Levy of £50 was ordered to be paid to the SLCC.
15/15 Employment The complainer complained that the solicitor had (a) failed to adequately prepare for a tribunal hearing, (b) failed to allow sufficient time to consider a settlement offer, (c) failed to inform of deductions from the settlement sum offered, and (d) accepted the settlement offer without taking instructions.  The Determination Committee was satisfied that there was sufficient evidence of the solicitor having (a) failed to adequately prepare for the hearing, by failing to source documents and identify witnesses, and (c) failed to give the complainer a clear explanation of the issues involved and the options available and omitted to advise about tax implications.

The Committee decided that no action should be taken in respect of the remaining issues.

The Committee decided that the firm should pay compensation to the complainer of Band B for inconvenience and distress. A Complaints Levy of £500 was also ordered to be paid to the SLCC. 
15/16 Litigation The complainers complained that their solicitor/firm had (a) repeatedly included incorrect information in correspondence with a third party, (b) unduly delayed complying with a mandate, and (c) failed to check that a certain third party could act as an expert witness.  The Determination Committee decided in respect of (a) that there was an error on one occasion, which was not material and was immediately corrected, with no prejudice to the complainers.

Regarding (b), the Committee's view was that the unexplained delay of just over 7 weeks to implement a mandate showed lack of diligence on the part of the firm and could amount to inadequate professional service.

Regarding (c), the Committee agreed that the third party was appropriately qualified to act as an expert, and the facts did not support the complaint.

The Committee decided that the firm should pay compensation to the complainer of Band A for inconvenience and distress. A Complaints Levy of £150 was also ordered to be paid to the SLCC. 
15/17 Litigation The complainer complained that the solicitor had (a) prior to the initial meeting, failed to advise that the complainer would be charged a fee for the meeting, (b) at a Sheriff Court hearing, failed to follow instructions to ask that the complainer's name be substituted as the pursuer in an action raised by their partner, but instead asked the Sheriff to dismiss the case, (c) unduly delayed in responding to a series of emails from the complainer, and (d) failed to respond to two emails setting out the complaint. 
The Determination Committee decided in respect of (a), that there was insufficient evidence to show that the solicitors had failed or were required to respond to the complainer about whether they would be charged for the initial meeting. The Committee decided not to uphold this issue.

In respect of (b), the Committee decided not uphold this issue, as there was insufficient evidence to show that the solicitor did not follow the instruction.

In respect of (c), the Committee upheld this issue as the evidence showed that although the solicitors' delay had only been over a short period of time, the complainer had contacted the solicitors with reminders and they had promised they would respond the next day but had not.

Regarding (d), the Committee upheld this issue because the solicitors in their response did not adequately address the issue of complaint, compounded by a delay of over two months in responding.

The Committee decided that the firm should pay compensation to the complainer of Band A for inconvenience and distress. The Committee decided to waive the Complaints Levy. 
15/18 Residential conveyancing The complainer complained that the third party solicitors had (a) accepted an offer from another party, despite having verbally accepted an offer and despite a written offer having been made by the complainer's solicitors, and (b) failed to ensure that the offer (faxed and sent in LP) was brought to the attention of the relevant person. The Determination Committee decided in respect of (a) that there had been a failure to communicate adequately, by negotiating with and indicating to more than one party that their respective offers were acceptable. The firm had failed to advise their client of the revised written offer and the complainer had been directly affected.

Regarding (b), the Committee decided that there had been a failing in the firm's internal communications and that this had adversely impacted on the complainer's prospective purchase of the property.

The Committee decided that the firm should pay compensation to the complainer of Band A for inconvenience and distress. The Committee decided to waive the Complaints Levy. 
15/19 Commercial property & leasing The complainers complained that their solicitor (a) delayed dealing with the lease transaction, (b) failed to return telephone calls, (c) unreasonably refused to communicate with the other side's solicitors, and (d) failed/delayed reviewing the file after taking over from another solicitor in the firm and refused to take part in a conference call, as he was unfamiliar with the case. The Determination Committee was satisfied that the solicitor had (a) delayed familiarising himself with the file and communicating with the complainers for 8 weeks and delaying contacting the solicitors on the other side.

Regarding (d), the Committee was satisfied that the solicitor had failed to take instructions timeously and had not familiarised himself with the case in a reasonable period of time. However, the Committee did not consider that the solicitor's refusal to take part in the call was an unreasonable course of action to have taken, as he was not prepared at that stage. The Committee decided that a solicitor need not accept every invitation to discuss the transaction.

It was decided that there was lack of evidence to support (b). 

The Committee decided in respect of (c), that the solicitor had failed to advise the complainers that he had suspended relations with the other side, pending a review of the case, which lead to uncertainty and delays in the progression of the transaction.

The Committee decided that the firm should pay compensation to each of the complainers (3) of Band B for inconvenience and distress. A Complaints Levy of £750 was ordered to be paid by the firm to the SLCC.
15/20 Residential conveyancing The complainer complained that the firm (a) repeatedly and inappropriately advised not to apply for local authority consents for alterations carried out to their property until it was absolutely necessary, despite knowing he would need these, and (b) advised that it would be fine  to sign a tenancy agreement for a new property, despite the fact that there was no concluded contract for the sale of the property. The Determination Committee was satisfied in respect of (a), that although there was no evidence in the firm's file of the advice given, the explanation provided by the complainer had not been rebutted by the solicitors. The Committee preferred the complainer's word on balance.

Regarding (b), the Committee decided not to uphold this issue, as there was no other evidence to support the complaint (other than the complainer's own statement).  There was evidence that the firm had advised the complainer that there was no legally binding contract until the missives had concluded.

The Committee noted that the firm had already restricted its fees, so no additional order in respect of fees was made.  The Committee ordered the firm to pay compensation to the complainer of Band B for inconvenience and distress. A Complaints Levy of £250 was ordered to be paid to the SLCC. 
15/21 Residential conveyancing The complainers complained that the firm had failed to recognise and advise of significant flaws in the title of the prospective property.  The Determination Committee decided that there was evidence of unusual features in the title which were not brought to the complainers' attention and the firm failed to ensure that the complainers had a valid and marketable title.

The Committee ordered the firm to refund its fees in full (approx. £400) and to pay compensation to the complainers of level 4 in respect of actual loss and Band D compensation for the inconvenience and distress suffered by both of them. A Complaints Levy of £2,000 was ordered to be paid to the SLCC. 
15/22 Litigation The complainer complained that the solicitors/firm had (a) raised an incorrect legal action; (b) incorrectly raised the action in the Court of Session rather than in the Sheriff Court, (c) was unprepared to deal with legal arguments in court, (d) gave incorrect advice about applying to become an executor, and (e) failed to act in their best interests by advising  not to accept an offer of settlement, despite counsel having advised that the action had little prospects of success.   The Determination Committee decided in respect of (a), that this should be part upheld on the basis that the firm had failed to ascertain whether sufficient evidence existed to prove the case, and had failed to appreciate and advise the client of the risks involved. The actual decision to proceed in this way was considered to be a matter of professional judgement, and was not a decision which no other competent or reasonable solicitor would have reached. 

Regarding (b), the Committee agreed that the decision to raise the case in the Court of Session was a matter of professional judgement and there was no evidence that this judgement was exercised unreasonably.

In respect of (c), the Committee decided that no amount of preparation would have enabled the legal issue to have been dealt with in any other way. The client had agreed to proceed in the way advised and, on that basis, the Committee was satisfied that the issue should not be upheld.

Regarding (d), the Committee was satisfied that the firm had failed to appreciate the impact that certain legislation would have on the appointment of executor and the resulting impact. As a consequence, the complainer had not been adequately advised at the outset.

The Committee decided in respect of (e), that the issue should not be upheld on the basis that it was not possible to determine what advice had been given regarding possible settlement. The Committee agreed that even if the solicitors had advised against a accepting the settlement, this advice would not have been unreasonable at the time it was provided.

The Committee directed the firm to refund 100% of the fees, outlays and VAT (approx. £35,000), pay compensation to the complainer of level 6 in respect of actual loss and Band D compensation for the inconvenience and distress suffered. A Complaints Levy of £1,000 was ordered to be paid by the firm to the SLCC.
15/23 Residential conveyancing The complainers complained that the solicitor/firm had (a) failed to carry out the required checks on the property (despite requests to do so), and (b) failed to communicate effectively by not responding to numerous telephone calls. The Determination Committee decided regarding (a), that although the solicitor had carried out checks regarding consents for the extension, he had not properly communicated to the complainers the absence of a building warrant for that work and did not complete the checks on consents for other alterations. 

In respect of (b), the Committee decided that the solicitor had failed to respond to numerous telephone calls over a 2 week period.

The Committee ordered the firm to refund 10% of its total fee (approx. £70) and to pay compensation to the complainers of level 4 in respect of actual loss and Band C compensation for the inconvenience and distress suffered. A Complaints Levy of £500 was ordered to be paid by the firm to the SLCC.
15/24 Litigation - personal injury The complainer complained that the solicitors failed adequately to communicate and acted without instructions by proposing a settlement to the insurers without discussing the potential value of the claim in advance. The Determination Committee decided that the firm had failed to discuss the valuation with the complainer or take instructions on it before contacting the other side. The Committee was satisfied that these failings breached the service standards and amounted to inadequate professional service.

The Committee ordered the firm to refund 100% of its fees and any outlays. It ordered the firm to pay to the complainer compensation of Band B for the inconvenience and distress suffered. A Complaints Levy of £250 was ordered to be paid by the firm to the SLCC.
15/25 Family - divorce The complainer complained that the solicitor/firm had (a) unduly delayed progressing the divorce during a 2 year period and failed to deal with custody issues, (b) failed to keep the complainer updated, (c) sent a series of misleading emails about the progression of the case, (d) failed to advise that a Decree had been granted and/or that the Decree was incompetent, (e) unduly delayed advising the complainer that there had been a settlement of £20,000, (f) failed to explain why the complainer had received the settlement sum in 2 interim payments and had not received the balance, (g) gave inappropriate advice to purchase a property before financial settlement had been secured. The Determination Committee noted that the firm had argued that the partners should not be held responsible, as the paralegal involved had acted outwith the scope of her authority. The Committee determined, however, that the partners should be held responsible for the employee's actions and as a consequence of the paralegal's actions, an inadequate service had been provided to the complainer. On this basis, the Committee decided to uphold the complaint against the firm as an entity.
 
Specifically in relation to each issue, the Committee decided in respect of (a), that there was evidence of undue delays and inadequate action had been taken regarding the custody issues.

Regarding (b), the Committee agreed that the firm had not kept the complainer updated with significant developments.

In respect of (c) & (e), the Committee was satisfied that the complainer had been misled regarding the financial settlement and the firm had delayed advising about the settlement.

Regarding (d), the Committee concluded that there was no evidence to show that the complainer was advised of the decree or that its terms had been agreed. The Committee was satisfied that the complainer had been incorrectly advised that the decree was being recalled.

In respect of (f), the Committee decided that the firm had failed to advise the complainer that the payments were in full settlement and had not advised of the reasons for the various deductions.

Finally, regarding (g), the Committee felt that there was insufficient evidence to show that the firm had failed to act in the complainer's best interests in the advice provided.

The Committee ordered the firm to refund 100% of its fees (approx. £2,000), and to pay compensation to the complainer of level 4 in respect of actual loss and Band D compensation for the inconvenience and distress suffered. A Complaints Levy of £500 was ordered to be paid by the firm to the SLCC.
15/26 Family - pension sharing order The complainer complained that the solicitor/firm had (a) failed to include all relevant information in the Schedule and failed to attach the Schedule to the correct document, (b) failed to ensure that the Minute of Agreement was sufficient to protect the client's interests, (c) failed to adhere to timescales to ensure implementation of the terms of the pension sharing order, (d) failed to distribute the proceeds of sale in accordance with the Minute of Agreement and unduly delayed repaying the bank loan, (e) acted without instructions by deducting fees from the net proceeds of sale, without issuing a fee note, (f) unreasonably withheld the balance of the proceeds of sale, (g) failed to raise court action as instructed, (h) failed to respond to the complaint and provide a breakdown of fees, and (i) failed to implement a mandate. The Determination Committee decided in respect of (a) that the issue should be part upheld on the basis that the solicitor had failed to ensure that the pension details had been included in the Schedule, but that the document had been incorrectly annexed to the incorrect document by the other side's solicitors.

Regarding (b), the Committee decided not to uphold the issue on the basis that the Agreement was clear and robust and was drafted in accordance with instructions provided.

In respect of (c), the Committee was of the view that there was lack of evidence to show that there had been a specific instruction or a specific obligation on the solicitor to take this course of action.

Regarding (d), the Committee was satisfied that there was sufficient evidence to show that the solicitor had suggested the delay as a tactic and that this had been acceded to. However, there was no evidence to show that the solicitor had advised of the possible legal consequences of the delay.

Regarding (e), the Committee agreed that there was no evidence to confirm that an invoice had been issued to the client before the fees had been deducted.

The Committee decided in respect of (f), that the issue should be upheld for the same reasons given at (d) above.

Regarding (g), the Committee was of the view that there was lack of evidence to support the complaint that a specific instruction had been given.

Regarding (h), the Committee was of the view that there was no evidence to show that the letter had ever been received by the solicitor.

In respect of (i), the Committee was satisfied that the files had been transferred and the complainer had been unable to state what information may have been missing from those files.

The Committee ordered the firm to refund fees of approx. £100 and to pay to the complainer compensation of Band B for the inconvenience and distress suffered. A Complaints Levy of £400 was ordered to be paid by the firm to the SLCC.  
15/27 Negligence The complainer complained that the solicitors/firm had (a) delayed/failed to progress the claim over an 8-month period, (b) failed to take into account the inaccuracies in Counsel's report and failed to provide an explanation about a letter which the client had purportedly been asked to sign, and (c) delayed/failed requesting the file from another firm of solicitors. The Determination Committee decided in respect of (a) that the issue should be upheld on the basis that the firm had failed adequately to  investigate matters and failed to provide an adequate set of papers to Counsel for an Opinion.

Regarding (b), the Committee decided not to uphold the issue as the evidence contradicted the complaint. The Committee was satisfied that there was no additional information to support the complaint.

In respect of (c), the Committee was of the view that there had been a delay obtaining the file and as a result this had not been sent to Counsel.

The Committee ordered the firm to reduce its fees to nil, to pay to the complainer compensation of Band C for the inconvenience and distress suffered. A Complaints Levy of £750 was ordered to be paid by the firm to the SLCC.
15/28 Family The complainer complained that the solicitor/firm had (a) failed to provide a terms of business letter confirming the change in charging arrangements, (b) failed to advise of the basis of charging after Legal Aid was withdrawn, (c) failed to translate and produce a foreign document, (d) failed to lodge a large number of documents in court, (e) failed to advise (in writing) of procedural and expenses implications of proceeding with an appeal, (f) delayed/failed to implement a mandate, and (g) delayed/failed to respond to correspondence. The Determination Committee decided in respect of (a), that there was evidence that a letter explaining the scope of work and basis for fees had been sent to the complainer.

Regarding (b), the Committee agreed that the evidence showed that the complainer was advised of the private hourly rate once the Legal Aid Certificate was withdrawn. The Committee decided on balance that the firm had issued the letter.

In respect of (c), the Committee was satisfied that there was no evidence of a request to obtain a translation.

The Committee agreed in respect of (d), that there was insufficient evidence to support the complaint.

Regarding (e), the Committee agreed that there was no evidence to confirm that advice had been tendered regarding prospects of success and the implications of judicial expenses. Had such advice been given, the Committee would have expected this to have been confirmed in writing. The Committee was satisfied that the failure could amount to an inadequate professional service.

In respect of (f), the Committee was satisfied that on receipt of the mandate, the pertinent documents had been sent to the new agents, and the file had been retained pending payment of the outstanding fees, reasonably exercising a lien.

Regarding (g), the Committee decided that the solicitor had explained the position regarding the lien and that he had sent the paperwork to the new agents. The Committee agreed that there was no evidence of the service standards regarding adequate communication.

The Determination Committee ordered the firm to pay to the complainer compensation of Band C for the inconvenience and distress suffered (agreed to be off-set against the outstanding account). A Complaints Levy of £750 was imposed on the firm to be paid to the SLCC.
15/29 Litigation - eviction The complainers complained that the solicitor/firm had (a) unduly delayed progressing eviction proceedings, and (b) failed to respond to correspondence. The Committee decided in respect of (a) that the solicitor had failed to progress matters and to keep the clients updated for a number of years, despite having instructions to do so.

Regarding (b), the Committee was satisfied that there was evidence of a failing on the part of the solicitor to respond to a number of letters over a number of months.

The Committee ordered the firm to reduce its fees and outlays to nil, and to pay to the complainers compensation of Band D for the inconvenience and distress suffered. A Complaints Levy of £2,000 was ordered to be paid by the firm to the SLCC.

 

Not upheld decisions

  Business area Complaint detail Outcome
15/30 Residential conveyancing/
litigation
The complainers complained that the solicitor/firm had (a) failed to advise of the grounds of challenge, (b) failed to advise on the rights and remedies available, (c) failed to ensure that paperwork was completed prior to the work commencing, failed to advise on contracts/law, failed to obtain and provide invoices. The Determination Committee was satisfied that the solicitor had acted within the scope of his engagement and on the basis of instructions received. On that basis, the Committee decided not to uphold any aspect of the complaint.
15/31 Crime The complainer complained that the third party solicitor made "an unfounded and outrageous allegation" in a letter against a member of Crown Counsel and an Officer of the Court, by suggesting that the complainer had attempted to influence the course of justice by instructing an expert not to engage with or discuss a case with the solicitor.  The Determination Committee was satisfied that the solicitor was acting on instructions and in the best interests of their own client by trying to secure a successful appeal. The Committee agreed that there was no evidence of inadequate professional service to the solicitor's own client and accordingly, there could be no adverse direct impact on the complainer. The Committee decided not to uphold the complaint.
15/32 Family - harassment/ contact with child The complainer complained that the solicitor/firm failed to carry out instructions to obtain a restraining order and non molestation order.  The Determination Committee was satisfied that there was insufficient evidence to confirm that such instructions had been given. In the Committee's view, the action taken by the solicitor was in accordance with her professional judgement. For these reasons, the Committee decided not to uphold the complaint.
15/33 Family - financial provision on divorce The complainer complained that the third party solicitors/firm had prepared a Disposition which sought to include a liferent over a property which was in breach of an earlier Minute of Agreement.  The Determination Committee was satisfied that the firm complained of had been acting in accordance with its client's instructions and there was no evidence of any inadequate professional service to that client. Accordingly, there could be no adverse direct impact on the complainer. The Committee decided not to uphold the complaint.
15/34 Medical negligence The complainer complained that the solicitor/firm had (a) failed to explain why the client had to pay privately for a home visit, and (b) failed to respond adequately to a letter, despite having signed authority to release information. The Determination Committee was satisfied that (a) the firm had communicated adequately regarding the fees and outlays and had made it clear that the fee in question was for specialist reports not transport.

Regarding (b), the Committee was satisfied that the letter was not inappropriate or unreasonable, particularly given the uncertainty over the existence of a mandate. For these reasons, the Committee decided not to uphold the complaint.
15/35 Litigation - neighbour dispute The complainer complained that the firm carried out unnecessary work on the case and inappropriately charged for it. The Determination Committee was satisfied that the firm had acted on instructions provided and did not carry out any inappropriate work, including the instruction of Counsel. The Committee considered that the evidence did not support the issues and it decided not to uphold the complaint.
15/36 Executries, wills & trusts The complainer complained that the firm unduly delayed winding up the estate over a 3 year period. The Determination Committee decided that there was insufficient evidence to establish that any delays were caused by any failings on the part of the firm. Accordingly, the Committee decided not to uphold the complaint.
15/37 Family - aliment on divorce The complainer complained that the solicitor had failed to follow instructions by failing to claim aliment as part of the divorce proceedings. The Determination Committee was satisfied, having analysed the file, that no such instructions had been given. The Committee agreed that there was no requirement for the solicitor to provide advice about aliment when the solicitor was only instructed to provide advice about the division of the matrimonial property. In the circumstances, the Committee agreed that the solicitor was entitled to assume that aliment was not an issue and, on that basis, the Committee decided not to uphold the complaint. 
15/38 Family - matrimonial The complainer complained that the solicitor (a) repeatedly refused or unduly delayed to implement continual instructions to proceed to court with the divorce, (b) delayed submitting an  application for Civil Legal Aid, and (c) delayed providing information requested by SLAB.
 
The Determination Committee agreed there was no evidence that the complainer had repeatedly instructed the solicitor to raise a court action and there was no evidence that the solicitor refused or delayed doing so. The evidence submitted by both parties showed that there was no delay by the solicitor obtaining the appropriate supporting documentation and no delay in submitting the application to SLAB. The Committee was satisfied that there was no evidence of an inadequate professional service and it decided that the complaint should not be upheld.
15/39 Litigation The complainer complained that the solicitor/firm had (a) failed to follow instructions to raise a court action, (b) unnecessarily sought information which was already in its possession, and (c) provided incorrect advice regarding public funding for an expert report. The Determination Committee decided that (a) the firm's actions were reasonable in that it had withdrawn from acting (with the client's agreement) and had explained that it would not be in the public interest to seek further public funding.

Regarding (b), the evidence did not support the complaint, as the client had signed a mandate authorising the firm to obtain the document.

The Committee was satisfied in respect of (c), that the firm had provided advice that funding had not been granted and the firm had withdrawn from acting at that stage. On the basis of the evidence before it, the Committee decided not to uphold the complaint.
15/40 Residential conveyancing The Complainer complained that the solicitor had (a) failed to follow instructions to conclude missives of sale as quickly as possible, (b) unduly delayed concluding the missives for the sale of the property whilst simultaneously progressing the purchase of an alternative property, (c) after agreeing that the complainer could proof read a letter to the purchaser's solicitors, failed to follow instructions by dispatching the letter without the client's prior approval of its terms, and (d) dishonestly and incorrectly stated in a letter sent in response to the complaint that she had sent him "Notes of Information for Clients" involved in property sale and purchase with her firm's letter of engagement, when no such notes were sent.
 
(i) Although the firm considered it had sent the Notes of Information, they were not received by 'C' as the firm made a typographical error in the client's email address;
 
(ii) Although the issue had been established, the SLCC considered this
 
The Determination Committee decided in respect of (a) that there was no evidence that the complainer gave instructions to the firm to conclude missives for the sale independently of concluding missives for the purchase. The Committee was satisfied that there was evidence that the firm kept the complainer fully advised on the status of the missives for sale and the consequences of this.

Regarding (b), the Committee decided that there was no evidence to support the complaint that the complainer advised the firm that it was not their intention for both transactions to settle on the same date.

In respect of (c), the Committee was satisfied that there was no additional evidence to weigh the balance in favour of one party over the other.  On that basis, the issue could not be proven.

Although the Committee was satisfied in respect of (d) that the Notes of Information had been sent by the firm, it was apparent that the Notes were not received by the complainer, as there had been a typographical error in the client's email address. However, the Committee was of the view that a 'one-off' error was insufficient to amount to a breach of the principle of 'Communication' in the Service Standards and should not, therefore, be upheld.
15/41 Executries, wills & trusts The complainer complained that the solicitors (a) failed to transfer croft tenancies from the estate of Mr X within the  6-month time limit in the Minute of Agreement, and (b) delayed finalising the administration of the estate of Mr X. The Determination Committee agreed that (a) the solicitors acted in the best interests of the complainer and the estate by not making the transfer within the time limit. If this had been done, it would have prejudiced the estate and left the complainer open to legal action in respect of any loss to the estate.

Regarding (b), the Committee was satisfied that there was no evidence of any delay in finalising the administration of the estate.

The Committee agreed that there was no evidence of inadequate professional service and it decided that the complaint should not be upheld.
15/42 Residential conveyancing The complainer complained that the solicitors (a) delayed notifying of a coal report, leaving the complainer insufficient time to arrange buildings insurance, (b) failed to follow instructions to contact X/Y to inform them of continued interest in the property, and (c) failed to send a copy of the coal report to X. The Determination Committee agreed (a) that there was evidence that there was no delay in the complainer being notified of the coal report.

The Committee agreed that the evidence did not support the complaint that the solicitors had (b) failed to follow instructions, and (c), that there had been a failure to send a copy of the report.

The Committee agreed that there was no evidence of inadequate professional service and decided that the complaint should not be upheld.
15/43 Residential conveyancing The complainers complained that the third party solicitors had wrongly advised their solicitor that the property was not managed by Factors.
 
The Determination Committee was satisfied that although the firm had admitted inadvertently to providing incorrect advice, the onus was on the complainers to check the title and for their own solicitors to provide advice. The Committee agreed that there was no evidence of any inadequate professional service to the firm's own clients and, accordingly, there could be no direct effect on the complainers. The Committee decided not to uphold the complaint.
15/44 Family - child maintenance The complainer complained that the firm had failed to advise before the complainer signed a Preliminary Agreement: (1) that in addition to paying half of the child's nursery fees, the  estranged spouse could still make a later claim for child maintenance with no deduction for the complainer's half of the nursery fees, and (2) that the complainer would have a financial obligation for the child even while in the care of the estranged spouse.  The Determination Committee decided that the Preliminary Agreement was an interim measure put in place for the purpose of the sale of a matrimonial property and for short-term contact arrangements.  The Committee was satisfied that the evidence showed that the parties had not wanted the agreement to cover other matters at the time and that it was clear that the Agreement could be varied at a later date. The Committee felt that it was self evident that paying nursery fees would not absolve a parent of any other responsibility towards a child's on going costs. For these reasons, the Committee decided not to uphold the complaint.
15/45 Family The complainer complained that the firm (a) failed to represent their interests adequately in court, (b) was unprepared for a court hearing, (c) failed to explain what should be expected when appearing in court, (d) failed to discuss a plan of action in relation to a bar report, and (e) delayed contacting the other side's solicitors.
 
The Determination Committee agreed that there was no evidence to support any aspects of the complaint. The Committee decided that the complaint should not be upheld.
15/46 Crime The complainer complained that the solicitor/firm had (a) failed to contact various witnesses, (b) failed to review all of the evidence, (c ) inappropriately advised the complainer to plead guilty, (d) swore when advising how to act during the preparation of court reports, and (e) erroneously advised that the plea could be changed. The Determination Committee decided that (a) there was evidence to show that the solicitor had advised the complainer why he was not contacting the various witness, and that this was accepted by the complainer.

Regarding (b), the Committee was satisfied that the evidence did not support the allegation. 

In respect of (c), the Committee agreed that it was not unreasonable for the solicitor to have provided his opinion about the plea to be tendered in the circumstances of the case.

In respect of (d), the Committee noted hat the solicitor had not disputed that he had sworn. However, the Committee was not convinced that this had any adverse impact on the service provided.

As regards (e), the Committee commented that it is competent to withdraw a guilty plea and therefore the advice was not incorrect. For these reasons, the Committee decided not to uphold the complaint.
15/47 Litigation The complainer complained that the solicitor had (a) wrongly advised that he had written to the compaliner's insurers, but had failed to do so, (b) failed to advise that the Sheriff Principal had instructed the solicitor to enrol a motion to adjourn the case to avoid it being called, and (c) acted inappropriately by advising another firm of solicitors not to accept the complainer's instructions. The Determination Committee agreed that there was no evidence to support the complaint and no evidence that the solicitor had breached any of the Service Standards. The Committee decided that the complaint should not be upheld.
15/48 Child  The complainer complained that the solicitor had (a) advised to accept the Grounds of Referral in a report without advising that, by accepting the Grounds, the complainer would be deemed to be accepting the terms of the report, (b) failed to advise of the process for challenging the report and the implications of doing so, (c) failed to attend a Children's Hearing, leaving the compaliner unrepresented at the Hearing.  The Determination Committee agreed that there was no additional evidence to support the complaints made. On that basis, the Committee decided that the complaint should not be upheld. 
15/49 Executries, wills & trusts The complainer complained that the third party solicitors had (a) failed to respond to a number of letters, and (b) failed on numerous occasions, to provide the net value of the estate, despite requests to do so.
 
The Determination Committee identified evidence to show that the firm had (a) responded to the letters, and (b) explained why the net value of the estate could not be provided, when the request was made. The Committee decided that there was no evidence of inadequate professional service to the firm's own client and on that basis, the complaint should not be upheld.

 

Determination Decisions: July – September 2015 

Upheld and part-upheld decisions

Ref.

Business Area

Complaint detail

Outcome

15/01

Employment

The complainer raised a number of issues about the service provided by the firm in relation to an employment dispute.

The Determination Committee decided that the firm had (a) failed to provide adequate advice, (b) failed to arrange a jointly instructed expert, (c) not done enough to further the claim, (d) unreasonably withdrew from acting, (e) not been clear enough about fee notes, and (f) failed to deal with the complaint properly.

 

The Determination Committee decided that the firm should pay the complainer: compensation of Band D for inconvenience and distress, Band 4 for actual loss and a fee refund of Level 5.  A Complaints Levy of £2,000 was ordered to be paid by the firm to the SLCC.

15/02

Executry

The complainer complained that over a 3 year period, the solicitor had delayed in winding up a deceased person’s estate. 

The Determination Committee was satisfied that the delay could amount to inadequate professional service.  The solicitor's had subsequently moved firm and the current firm had no knowledge of the case.

 

The committee decided that the firm should not therefore be held responsible for the solicitor's actions.  The solicitor was personally ordered to pay the complainer compensation of Band D.  A Complaints Levy of £800 was ordered to be paid to the SLCC.

15/03

Litigation

The complainer complained that the firm had (a) failed to respond to correspondence, (b) failed to provide/respond to requests for a breakdown of fees, (c) failed to provide a terms of business letter, (d) stopped representing the complainer without an adequate reason, (e) delayed implementing a mandate from another firm to transfer a file, and (f) failed to advise of a court hearing date. 

The Determination Committee was satisfied that there was evidence of some communication failures, and that the terms of business letter contained fees information, but didn’t say who should be contacted in the event of a complaint and that there was evidence of a 3-week delay implementing the mandate.

 

The Determination Committee decided that the service provided was inadequate and that the complainer should be awarded compensation of Band A for inconvenience and distress.  A Complaints Levy of £500 was ordered to be paid by the firm to the SLCC.

15/04

Litigation

The complainer complained that the solicitor (a) hadn’t given adequate advice about serving a counter notice in a litigation matter and (b) hadn’t followed instructions to respond to correspondence. 

The Determination Committee was satisfied that there was a failure in respect of (a), but because there was no actual loss, inconvenience or distress caused as a result of the inadequate professional service, or any benefit to the solicitor doing more work for the complainer, no sanction was imposed.

15/05

Litigation

The complainer complained that the solicitors (a) hadn’t discussed the defence for the case, (b) hadn’t prepared the case for court and (c) stopped acting for the complainer without giving enough notice. 

The Determination Committee's view was that the evidence was not supportive of complaints (a) and (b).  Regarding (c), the Committee was satisfied that the solicitors hadn’t communicated well enough or acted with diligence and that this issue should be upheld.

The firm was ordered to pay the complainer compensation of Band A for inconvenience and distress. A Complaints Levy of £100 was ordered to be paid to the SLCC.

15/06

Commercial conveyancing

The complaint related to the delay by the firm in fixing an error relating to a property sale and to keep the complainer updated. 

The Determination Committee agreed that the delays and inadequate communication could amount to inadequate professional service.

The firm was ordered to pay compensation of Band C for inconvenience and distress and Level 1 for actual loss, and to refund fees of Level 4.  A Complaints Levy of £1,500 was ordered to be paid to the SLCC.

 

Not upheld decisions

Ref.

Business Area

Complaint detail

Outcome

15/07

CICA claim

The complainer complained that (a) a criminal injuries compensation claim had been passed between a number of solicitors who were unfamiliar with the case, (b) there was lack of preparation and (c) poor communication. 

The Determination Committee's view was that there was no evidence to support (a) and (b).  Regarding (c ), the Committee was not satisfied that the delays were unreasonable considering the circumstances and did not amount to inadequate professional service. The complaint was not upheld.

15/08

Family

The complainer complained that the solicitor (a) had gone back on advice previously provided and (b) made inappropriate remarks. 

The Determination Committee's view was (a) that the advice provided was appropriate and relevant when it was provided and the solicitor was exercising professional judgement.  The Committee decided that (b) the remarks were not of a nature that could constitute inadequate professional service.  The decision taken was not to uphold the complaint.

15/09

Complaint about the police

The complainer complained that the solicitor hadn’t communicated well enough, including not responding to the complainer's complaint. 

The Determination Committee's view was that the evidence did not support that and it decided not to uphold the complaint.

15/10

Family

The complainer complained that the solicitors had failed to provide regular updates on their fees. 

The Determination Committee's view was that there was no evidence to support this and determined not to uphold the complaint.

15/11

Employment

The complainer complained that the firm failed correctly to interpret documents provided by the complainer. 

The Determination Committee's view was that the firm had clearly explained their understanding of the client's instructions and provided clear options and advice.  The Committee decided not to uphold the complaint.

15/12

Deed of servitude

The complainer complained that the firm had failed to provide a final draft of a deed of servitude for approval before issuing it. 

The Determination Committee considered that the firm had acted in accordance with their client's instructions and an adequate explanation of the terms of the deed had been provided.  On this basis, the Committee decided not to uphold the complaint.