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[For consideration by the Indemnity Insurance
Committee on 7 February 2005]
LEGAL SERVICES OMBUDSMAN’S RECOMMENDATIONS
REFERRAL PROTOCOL
1.
The Committee has previously considered a draft Referral Protocol which is
intended to facilitate the effective referral of complaints and negligence claims
between the Law Society and insurers. A productive meeting was recently
held between the office and the Head of Adjudication, the Head of
Compliance Policy and the Technical and Policy Manager at the Consumer
Complaints Service (CCS), and this note updates the Committee.
2.
The CCS is unclear exactly what the Legal Services Ombudsman’s concern
is. If it is a litigant in person needing help, then this is already provided for to
a good extent. If the CCS takes the view that there is no ‘inadequate
professional service’ (IPS), they offer the client referral to a member of the
Negligence Panel for advice (which is initially free), or suggests that the client
seeks their own legal advice. Whilst a mechanism for referral such as the
Protocol is desirable, it may not address the LSO’s concern as there will still
be cases where a client does not receive any redress either from the IPS
provisions, or a claim in negligence if neither the CCS nor insurers think that
there is merit. The CCS is uncertain whether, as a matter of policy, it wants
to refer matters direct to qualifying insurers. It is reluctant to be perceived to
endorse the existence of “a claim” by referring it as this suggests that redress
(or, as the client will see it, compensation) lies that that way.
3.
A high level of consistent scrutiny exists, and there is already an overlap
between IPS and negligence as dealt with by the CCS. A lot of IPS matters it
deals with involve negligence which falls within the excess. The CCS will
conciliate these, or if it cannot, will direct the firm to pay. In some cases the
CCS will pay.
4.
Possible solutions mooted included:

The CCS getting a clearer message across so as to better manage
clients’ expectations;

The CCS could engage with the solicitor saying the solicitor should be
writing to the client with insurance details and copying that letter to the
client;

Enabling the CCS to tell a client the insurer’s details;

Putting an obligation upon solicitors to inform qualifying insurers of
their complaints history, or the CCS sending a firm its complaints
history (like SIF does with a claims record). However this would be a
huge paper exercise which may outweigh any real benefit;

Producing information for clients on how to make a claim in
negligence against a solicitor, similar to the information already
available on making a complaint, although the CCS is reluctant to tell
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a client how to sue a solicitor. Perhaps insurers could produce
generic information, with a view to swapping literature between them
and the CCS and for provision to complainants or claimants.
5.
6.
The draft protocol was considered and some useful input received including:

Refining it to remove certain requirements that are too broad;

Better definition of what is a “complaint” and IPS;

Defining “consent”. The CCS is of the view that a client’s consent to
pass information to an insurer is always needed;

Amplification on how to deal with identified conduct breaches
Work is continuing on the Protocol and this will be brought back to a future
meeting for the Committee’s final approval before putting forward for the
qualifying insurers’ consideration.
Director of Regulation:
Committee Secretary:
Author:
Date:
Stuart Bushell
Andrew Darby
Sharon Nightingale
31 January 2005
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