Updated in November 2017 to reflect changes in 'approved' ADR providers.
This page contains advice on how to comply with the EU Directive on consumer alternative dispute resolution (ADR Directive).
In order to be as comprehensive as possible, this advice provides:
1. a description of the requirements
2. suggested text to be included in letters at the end of first-tier complaints
3. information for 'online traders'
4. frequently asked questions (FAQs)
1. The requirements
In short, from 1 October 2015, solicitors must, at the end of the first-tier complaints process:
Provide information on the Legal Ombudsman as the statutory complaints scheme for solicitors, and inform the client on a durable medium:
1. that they cannot settle the complaint with the client
2. of the name and web address of an ADR approved body which would be competent to deal with the complaint, should both parties wish to use the scheme
3. whether they intend to use that ADR approved body
The Chartered Trading Standards Institute (CTSI) have approved a number of ADR entities who will be able to provide ADR services. Traders should check the European Commission website to identify the most appropriate provider for them.
Solicitors should note that, although they are required to provide information about an ADR approved body, they are not required to submit complaints to the body. The obligation in the ADR Directive and government regulations is to give information (only) and not to agree to the use of the approved ADR body. If a solicitor does choose to have complaints submitted to an ADR approved body, it should have regard to the Solicitors Regulation Authority (SRA) code of conduct.
The requirements in relation to the Legal Ombudsman remain unchanged. Under the SRA code of conduct, solicitors are obliged not only to give information but to actively cooperate with the Legal Ombudsman.
Solicitors should be aware that the time limit for clients to get in touch with an ADR approved body will be different to the time limit for contacting the Legal Ombudsman, which is currently six months.
2. Suggested text
The Law Society has composed the following text which solicitors may wish to use in their correspondence to clients, once the first-tier complaints process has been concluded:
We have been unable to settle your complaint using our internal complaints process. You have a right to complain to the Legal Ombudsman, an independent complaints body, established under the Legal Services Act 2007, that deals with legal services complaints.
You have six months from the date of this (our final) letter in which to complain to the Legal Ombudsman.
PO Box 6806
Telephone: 0300 555 0333
Email address: email@example.com
Alternative complaints bodies (such as [include one of the following: Ombudsman Services, ProMediate and Small Claims Mediation and the website]) exist which are competent to deal with complaints about legal services should both you and our firm wish to use such a scheme.
We [state whether you do or do not] agree to use [include name of scheme].
3. 'Online traders'
From 15 February 2016, additional requirements apply to online traders and online market places. An online trader is defined as, 'a trader who intends to enter into online sales contracts or online service contracts with consumers'. This definition is likely to capture many solicitors who would not ordinarily consider themselves to be online traders. In 2015, the Department for Business, Innovation and Skills (BIS) confirmed that this is likely to include solicitors who send and receive contracts, customer-care information, etc to clients via email.
The requirements stem from the EU Regulation on Consumer Online Dispute Resolution (ODR). The European Commission has established an ODR platform that allows consumers who have a complaint about a product or service bought online to submit the complaint via an online complaint form to a trader based in another EU member state.
4. Frequently asked questions
A. I have seen a lot of conflicting advice on the implementation of the ADR Directive. Why is this?
The implementation of the EU ADR Directive, particularly in relation to legal services, has changed over the last six months and because of this, guidance for firms has changed.
In March 2015, government regulations were published which included requirements for traders to provide certain information to consumers regarding ADR by 9 July 2015. The Law Society and the Legal Ombudsman published information advising firms of this.
It was previously envisaged that the Legal Ombudsman would be certified as an ADR approved body under the regulations. On 28 August 2015, the Legal Ombudsman withdrew its application to be certified as an ADR entity. This meant that the guidance had to change.
B. Previous advice said that I needed to change information in terms and conditions and on my website, do I still need to do this?
No, not at the moment but you may be required to if the Legal Ombudsman resubmits its application and is successful.
This is because the government's regulations1 require that where the ADR approved body is a scheme that the 'trader' is obliged to use (such as the Legal Ombudsman), the trader must provide the name and website address of the ADR entity:
a. on the trader's website, if the trader has a website, and
b. in the general terms and conditions of services contracts, where such terms and conditions exist.
This information must be provided in addition to information provided at the end of the complaints process.
Solicitors who are 'online traders' will be required to provide the following on their websites:
i. a link to the ODR platform (http://ec.europa.eu/odr), and
ii. the email address of the online trader
Additional requirements exist for online marketplaces.
BIS, now the Department for Business, Energy and Industrial Strategy (BEIS), confirmed that you are not required to provide this information if you fit the definition of an online trader but do not have a website.
If, at a future date, LeO submits an application and becomes an approved ADR provider, 'online traders', will be required to:
a. provide a link to the ODR platform in any offer made to a client by email
b. inform clients of:
1. the existence of the ODR platform
2. the possibility of using the ODR platform for resolving complaints
The information in b. must also be included in the general terms and conditions of online-sales contracts and online-service contracts, where such general terms and conditions exist.
Online traders will be required to provide this information even if they do not market goods or services in other EU member states.
These requirements will apply in addition to any information requirements already applicable to solicitors regarding redress. For example, the requirements set out by the SRA Code of Conduct.
BEIS has produced guidance for business on these changes. For further information on the changes relating to the ODR portal, scroll down to the FAQs at the bottom of the BIS document.
C. Do I still need to provide information about the Legal Ombudsman?
Yes. Clients have a right to complain to the Legal Ombudsman if you are unable to resolve a complaint through your first-tier complaints process. This right and your obligation to properly signpost clients to the Legal Ombudsman are unchanged.
D. What should I do if I have already changed my client care information?
The Legal Ombudsman has advised in 2015 that:
'If you have already changed your client care information based on our earlier guidance please revert back to the existing time limit of six months (from the date of final complaint response letter). We are sorry if this has inconvenienced you, and we will let you know in good time when the next changes are due to be implemented.
'This will not affect our case fee decisions.'2
1 Regulation 19 (1) of the Alternative Dispute Resolution for Consumer Disputes (Amendment) Regulations 2015