Compensating inadequacies


When considering an appropriate compensatory award in cases where inadequate professional service has been substantiated, adjudicators take into account a wide variety of circumstances. The nature and extent of the inadequacies in which positive findings have been made is the starting point. In addition, it is necessary to consider the purpose and length of the retainer, and whether or not any additional remedies are to be taken into account, such as a limitation of costs direction. Of particular importance is the effect that the inadequacy has had on the client, where it is possible to make such an assessment.


Adjudicators must look at the proportionality of the matter. Ten separate findings of inadequacy does not mean an award will be five times greater than in a case where only two findings are made. Each complaint, and the circumstances behind it, is considered strictly on its own merits.


Section 37A of the Solicitors Act 1974 (as amended) enables an adjudicator to make a compensatory award that is intended to reflect the inconvenience, anxiety and distress sustained by a client as a result of inadequate professional service which has been substantiated. There is no scale and there is no template to calculate awards.


The maximum award that can be made is currently £5,000, and that figure includes any quantifiable loss claimed by the client to have arisen directly as a result of the inadequacy, but does not include the extent of any costs limitation direction that may be made in addition. The adjudicator may limit costs, but it is only where it can be seen that the inadequacy has reduced the quality of the solicitors' service in the course of the work encompassed by the retainer that such a direction is justified. Guidelines set out on the Law Society's Web site must be considered only as guidelines and no more.


The principle of compensation may be described as 'a tangible expression of regret'. There are cases where a relatively minor matter can cause disproportionate distress. There are other circumstances where the reverse is the case. The adjudicator's function is neither to punish the solicitors concerned nor to provide an unrealistic benefit to the client. A careful assessment is made on an individual basis in each case.


In conducting practice rule 15 negotiations with unhappy clients, solicitors may wish to take into account these various aspects that may help to bring a matter to an amicable conclusion. When a case comes to adjudication, the efforts made by solicitors pursuant to their obligations under rule 15 are taken carefully into account. Given the liability for costs payments that may now be made, complaints-handling partners may well wish to reconsider the basis on which proposals for resolution are made.



This column is written by a Law Society adjudicator



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