Commercial property: first-time buyers should be treated differently
A law firm sent a vulnerable client letters full of Latin and technical phrases, despite being repeatedly told the client had a learning difficulty and needed communications to be in plain English, according to the Legal Ombudsman (LeO).
Laying out its approach to determining complaints when deciding what was “fair and reasonable in all the circumstances of the case” – a phrase not defined in section 137(1) of the Legal Services Act 2007 – LeO stressed that the characteristics of the customer, such as their vulnerability or level of experience, would be among factors influencing its decision.
In the above case, LeO said the firm sent the customer letters containing the phrases ab initio and prima facie despite knowing they had a learning difficulty. LeO determined the client had received poor service.
In a contrasting example of best practice, LeO described an illiterate client in criminal proceedings who was consulted about how best it could communicate with him, including whether he needed support from a third party. “This demonstrated that the firm had adapted their approach to take account of the customer’s needs,” it said.
Continuing, LeO said: “In addition to whether or not their customer has any particular vulnerabilities, we will also take into account the knowledge and experience of the customer in deciding whether the service provided was reasonable.
“For example, we may expect firms to provide more detailed information and spend more time explaining matters to a first time buyer than they would with a sophisticated customer purchasing their 10th property.”
Other factors LeO warned it would take into account when applying the “fair and reasonable” test, included the expertise held out be the firm; promises made and assurances given to the client; and reliance on the advice or others – such as barristers.
The Ombudsman reassured solicitors that they would not be held to “the highest possible standard, or one of perfection”, but that the facts of each case would govern its approach.
It added: “For example, a delay of two days may be considered unreasonable in a conveyancing transaction whereas a delay of two months may not be, in the context of a complex probate or litigation case that spans a number of years”.
In another example of a case involving a non-commercial buyer of a new build property who lost a £40,000 deposit after her mortgage application was refused, the firm was ordered to reimburse her £20,000.
LeO said it should have treated her as a private first-time buyer and an information pack outlining the risk of loss of deposit was not specific enough to her needs.
In the 21st century and in the supposed days of ‘plain English’ should any client be sent a letter with the phrases, ab initio and prima facie, contained in it?