The complaint

Ms H instructed the firm to represent her during financial settlement proceedings following her divorce. The firm were representing Ms H via a Sears Tooth agreement, which meant that their costs would be paid for from the settlement figure.  

Ms H was concerned that her ex-partner would not be willing to come to a fair agreement, so she wanted to go to court so a judge could hear her case. However, the matter settled before the final hearing and Ms H believed that this benefitted her ex-partner.  

Ms H complained that:  

  1. The firm settled the case before the final hearing although Ms H would have achieved more had it continued; and 
  2. The firm unreasonably increased their fees as they instructed a barrister to represent her in court.  

The outcome

We concluded that the firm’s service in relation to these complaints was reasonable.  

The firm had advised Ms H to accept the settlement as going to court would mean she would have incurred more of their costs. As the costs were to come out of the settlement figure, she would have received almost nothing for herself had she continued. The firm were acting in Ms H’s best interests by providing this advice. The evidence also showed that Ms H agreed with the firm’s advice and was keen to settle due to the distress she was experiencing.  

It is also common for firms to instruct barristers for representation in court rather than firms attending themselves. This is due to the barrister’s specialist advice and court experience, and the evidence showed that the firm explained this to Ms H which she accepted. In this case, the cost of the barrister was cheaper than it would have been if a solicitor from the firm had attended, which was a financial benefit to Ms H.  

We found the firm’s service to be reasonable in relation to these complaints, so we did not need to consider the impact of any unreasonable service to decide on an appropriate remedy. 

However, although Ms H did not complain about the firm’s handling of her complaint, we determined that it was unreasonable. The firm took approximately nine weeks to respond to the complaint and did not update Ms H about when she could expect a response during this meantime. This meant that Scheme Rule 6.2b had not been satisfied so the firm were required to pay the case fee. 

Guidance:

Best practice complaint handling guide | Legal Ombudsman