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Legal Ombudsman decisions challenged in the High Court

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Posted by Susan Hopcraft on 21 July 2014

Susan Hopcraft - Professional Negligence Lawyer
Susan Hopcraft Partner

The Legal Ombudsman (LeO) for England and Wales was set up by the Office for Legal Complaints in October 2010, under the Legal Services Act 2007. It is an independent and impartial scheme set up to resolve complaints about lawyers in England and Wales, and provides a free complaints resolution service to consumers. It has powers to receive, investigate and determine complaints against solicitors, and to award compensation up to a maximum value of £50,000. LeO exercise wide discretion, but their decisions are amenable to review by the judicial system in the same way as any other public body.

LeO’s complaints procedure is straightforward, transparent and accessible to the public. Claimants do not need legal representation and LeO gathers information and considers the merits of the complaint before making a determination. LeO must determine the complaint by reference to what is, in their opinion, “fair and reasonable in all the circumstances of the case.”

In the past 6 months three LeO decisions have been challenged in the High Court, with two of these challenges being successful on the grounds of irrationality. This may not seem a huge number, but it is significant considering that since LeO’s incorporation there have only been four challenges in total.

R (Crawford) v The Legal Ombudsman

A complaint was made against Mr Crawford (a barrister) by his former client Mr Noor, with regards to advice, or lack of, given by Mr Crawford during a conference.  The Deputy Chief Legal Ombudsman held that the advice provided by Mr Crawford during the conference was limited. This decision was based on the fact that Mr Crawford had failed to produce to LeO any note made during the conference. LeO expected Mr Crawford to have taken notes at the conference, including details of any advice provided, and then followed up with a written note. Without such a note, LeO was unable to say whether any advice had been given at the conference.

LeO accepted that Mr Noor had left the conference early, whilst Mr Crawford was out of the room, leaving Mr Crawford with no opportunity to provide any summation of the advice given. Further Mr Crawford had done some preparatory work prior to the conference. In light of the fact that some work had been done and some advice given, Mr Crawford was only required to return half of his fees to Mr Noor. 

Mr Crawford sought to challenge LeO’s decision by application to the High Court for Judicial Review of LeO’s decision making process. The High Court held that LeO’s decision was irrational under the principle established in the case of Associated Provincial Picture Houses Ltd v Wednesbury Corporation, as the decision was so unreasonable that no reasonable person acting reasonably could have made it (Wednesbury unreasonable). Further, the decision was so illogical as to be incapable of supporting the conclusion reached.

The judge held that LeO had adopted an illogical process of reasoning as the sole basis for its conclusion as LeO had made an adverse inference from the absence of a note of the conference, whilst also recognising that Mr Crawford was entitled not to have made such a note. LeO’s decision was held as void.

R on the application of Hariz & Haque Solicitors v Legal Ombudsman & Tahira Quereshi

In this case, a complaint was made to LeO regarding the fees charged by the firm of solicitors and the standard of service provided by them. After considering the matter, LeO determined that the firm should reduce its fees and compensate its client for distress and inconvenience.

The firm challenged this decision by making an application to the High Court for Judicial Review. A dispute arose in the High Court as to whether attendance notes, which would seemingly support the solicitor’s position, had been received by the LeO. The High Court assumed, on the balance of probabilities, that the attendance notes had been received by LeO.

Once this had been established, the High Court found that LeO’s decision was contrary to these attendance notes and that their decision had therefore been irrational and illogical, failing the test of Wednesbury reasonableness. 

R (on the application of Rosemarine) v The Office for Legal Complaints

Here, a former client of Mr Rosemarine had made a complaint regarding Mr Rosemarine’s handling of an immigration matter. LeO dismissed this substantive complaint but found that Mr Rosemarine had provided poor service in refusing to respond to the complaint, and that the response Mr Rosemarine did finally provide was offensive and unprofessional, including repeated allegations of illegality and criminality.  This also amounted to poor service. Mr Rosemarine appealed this decision by making an application for Judicial Review to the High Court.

The High Court held that there were two possible ways of construing the response sent by Mr Rosemarine to the client, either; 1) concealed allegations of fraud and criminality; or 2) innocent observations. The High Court therefore found that the decision of LeO could not be outside a range of reasonable conclusions, and so the decision making process could not be held to be irrational or illogical.

Conclusion

Despite LeO’s wide discretion in making decisions, the cases discussed above show that their discretion is not unlimited, and if their decision making process is held to be irrational or illogical the decision is likely to be overturned. Three judicial reviews in a matter of months is somewhat remarkable, and it remains to be seen whether this trend continues as LeO continues to establish itself.

About the author

Susan is a disputes and professional negligence lawyer, mainly in the financial services sector.

Susan Hopcraft

Susan is a disputes and professional negligence lawyer, mainly in the financial services sector.

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