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CRO case study: complaints by beneficiaries

18 July 05

Case study highlighting the importance of understanding the rights of beneficiaries who make complaints, and the illogicalities of the legislation

A recent case has highlighted the importance of solicitors understanding the rights of beneficiaries when the latter make complaints, and the apparent illogicality of the legislation.

A complaint was raised by the representatives of a beneficiary in an estate. The complaint was one of inadequate professional service. The executors pronounced themselves happy with the service and did not support the complaint. 

You might think that the Society would take the view that as the actual clients were happy, no investigation should proceed.

Not so. Section 33 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 obliges the Society to investigate complaints of professional misconduct and inadequate professional service from “persons having an interest”. CRO took the opinion of senior counsel on the interpretation of this phrase. The advice received is that anyone who can demonstrate that they have been affected directly by a solicitor’s conduct or service could reasonably be regarded as a person having an interest.

The next question for the Society to decide is whether such complaints should be limited to professional conduct rather than quality of service. Again, on advice taken, the view was that beneficiaries, by extension, are receiving a service and are entitled to complain about the quality of that service. 

In this case, the solicitors were held to have provided an inadequate professional service.

This is where the real quirk of the legislation comes to the fore. Section 42A of the Solicitors (Scotland) Act 1980 empowers the Society to order the solicitors to make a payment of compensation to the client.  Accordingly, the beneficiary can go to the lengths of pursuing the investigation to an end and not be able to be compensated other than by a share in the distribution of an estate. In this case, the executors said that they did not wish the compensation payment. The solicitors nonetheless required to pay that into the estate, against the wishes of their own clients. The final twist is that the beneficiary was a specific legatee and got nothing!

This case is ample illustration of why the legislation governing complaints handling is long overdue for a radical overhaul.

Mary McGowan, Client Relations Offfice (0131 476 8152)