How do I handle a complaint where the client file has been destroyed?

I acted in a property purchase several years ago. The client complained to LeO that we submitted the incorrect address for service on the proprietorship register. They were not notified to contest a restriction and want reimbursement of the fee to remove it plus compensation. The client file has been destroyed and I have no evidence to investigate the complaint. Do I have to deal with it?

Rule 4.5 of the Legal Ombudsman (LeO) Scheme Rules 2019 provides:

‘’Time limit from act/omission

4.5 Ordinarily:

(a) the act or omission, or when the complainant should reasonably have known there was cause for complaint, must have been after 5 October 2010; and

(b) the complainant must refer the complaint to the Legal Ombudsman no later than:

  • six years from the act/omission; or
  • three years from when the complainant should reasonably have known there was cause for complaint.”

Unless you can show that the client should reasonably have been aware of the complaint more than three years ago, LeO may expect you to deal with it.

HM Land Registry may keep electronic copies of relevant documents, such as a transfer deed (TR1) and application to register a transfer (AP1), which would enable you to check the address for service that was given.

However, LeO has broad discretion. Even if a claim is within its jurisdiction, it may be arguable that, in cases where there is a lack of evidence due to a lapse of time, it would be inappropriate for the complaint to be dealt with (see sections 133(3)(a) and (4) of the Legal Services Act 2007).

LeO scheme rule 5.7(k) provides:

‘’it is not practicable to investigate the issue fairly because of the time which has elapsed since the act/omission;’’

And LeO scheme rule 5.7(n) provides:

‘’there are other compelling reasons why it is inappropriate for the issue to be dealt with by the Legal Ombudsman.’’

For further information, see LeO’s Scheme Rules.

Disclaimer

While every effort has been made to ensure the accuracy of the information in this article, it does not constitute legal advice and cannot be relied upon as such. The Law Society does not accept any responsibility for liabilities arising as a result of reliance upon the information given.

Have you got a practice question?

Call the Practice Advice Service on 020 7320 5675 or email practiceadvice@lawsociety.org.uk.

The Practice Advice Service is staffed Monday to Friday from 9am to 5pm.

Maximise your Law Society membership with My LS

Disclaimer

While every effort has been made to ensure the accuracy of the information in this article, it does not constitute legal advice and cannot be relied upon as such. The Law Society does not accept any responsibility for liabilities arising as a result of reliance upon the information given.

Have you got a practice question?

Call the Practice Advice Service on 020 7320 5675 or email practiceadvice@lawsociety.org.uk.

The Practice Advice Service is staffed Monday to Friday from 9am to 5pm.