PNBA

R. (on the application of Hafiz & Haque Solicitors) v The Legal Ombudsman

Administrative Court (Lewis J.)
11 April 2014
[2014] EWHC 1539

Subject:

Judicial review– Professional complaints – Legal advice and fees – Successful challenge by solicitors to decision of the Legal Ombudsman

Summary:

The Court quashed on irrationality grounds a decision of the Legal Ombudsman upholding a complaint against a firm of solicitors and directing that the solicitors’ fees should be reduced.

Abstract:

The complainant, Tahira Qureshi, was a national of Pakistan seeking asylum in the United Kingdom. She had attended the offices of the claimant solicitors and instructed them to act on her behalf in relation to her asylum interview for a fixed fee of £2800, excluding disbursements.

Three interviews took place: a screening interview, which the solicitors did not attend, and two further substantive interviews which the solicitors did attend. Ms Qureshi’s asylum claim was rejected.

Ms Qureshi complained to the Legal Ombudsman Service about the level of service provided and the fees charged. One ground of complaint was that the solicitors had not attended the screening interview.

In a letter to the Legal Ombudsman Service, the solicitors explained that the difference between a screening interview and the substantive asylum interview had been explained to Ms Qureshi and referred to certain attendance and file notes in that regard which were said to be attached. They said they had not attended the screening interview with Ms Qureshi because legal representation was not required at it.

A report made by a member of the Ombudsman staff recommended a finding that the service provided to the Ms Qureshi had been reasonable and that no further action should be taken. Ms Qureshi exercised her right to refer the matter to the Ombudsman for a determination.

In her final decision, the Ombudsman decided that the evidence demonstrated that the solicitors had generally provided a reasonable level of service to Ms Qureshi, save for their failure to attend at her screening interview. The Ombudsman took the view that the fixed fee charged to Ms Qureshi included attendance at the screening interview, that it had clearly been envisaged that the solicitors would attend the screening interview, as they had attended the subsequent substantive interviews, that there was no evidence that the firm had explained to Ms Qureshi that they would not attend the screening interview and no evidence that they had explained to her that representation was not required at it. The Ombudsman directed that the solicitors’ fees should be reduced by £300 to reflect the failure to attend the screening interview and ordered the solicitors to pay £100 for distress and inconvenience.

In support of their application for judicial review of the Ombudsman’s decision, the solicitors relied upon the contemporaneous attendance notes referred to in their letter to the Ombudsman. The judge found that the attendance notes provided evidence that the difference between the screening and substantive interviews had been explained to Ms Qureshi and that she had been told that the solicitors would attend the two substantive interviews only.

Before the Administrative Court, the Legal Ombudsman Service contended that one of the attendance notes relied upon by the solicitors had not been sent to the Ombudsman. Noting that it was unfortunate that the Ombudsman had not provided a witness statement on this subject and that the Legal Ombudsman Service had put no contemporaneous evidence before the court to indicate that the attendance notes had not been received, the judge concluded on the balance of probabilities that the attendance note had been enclosed in the solicitors’ letter to the Ombudsman which referred to it.

On the basis that the attendance note had been sent to the Ombudsman, the judge held the that the Ombudsman’s decision upholding the complaint in respect of non-attendance by the solicitors at the screening interview was unlawful since the Ombudsman’s conclusions that the fixed fee included attendance at the screening interview and as to what Ms Qureshi had been told about the solicitors’ attendance at it did not accord with the attendance note evidence. The nature of the error could be expressed in a number of ways: it was illogical and irrational to reach a conclusion in the face of contrary evidence when there was no other evidence to support that conclusion; and in failing to take account of the evidence contained in the attendance notes, the Ombudsman had failed to take into account material considerations.

Alternatively, if attendance note evidence referred to in the solicitors’ letter to the Legal Ombudsman Service had not been received, the Ombudsman had erred in making her decision without considering obtaining it.

Kate Livesey

4 Pump Court