Administrative Court (Popplewell J.)
5 February 2014
[2014] EWHC 182 Admin
Subject:
Judicial review– Professional complaints – Legal advice and fees – Successful challenge by barrister to decision of the Legal Ombudsman
Summary:
The Court quashed on irrationality grounds a decision of the Legal Ombudsman upholding a complaint against a barrister by a public access client in the first judicial review challenge of the Ombudsman by a barrister to reach a substantive hearing.
Abstract:
The complainant, Mr Sadik Noor, had instructed Mr Crawford, a barrister of over 35 years call, to advise him on a public-access basis in relation to claims for unfair dismissal and disability discrimination against his employer.
Mr Crawford’s client care letter recorded agreement that he should provide “an initial advice in conference” to Mr Noor for an up-front fee of £650 plus VAT. Mr Noor sent some papers in advance, which Mr Crawford read, and he brought with him to the conference a further lever-arch file of papers. At the conference, Mr Crawford and Mr Noor discussed some of the papers in the new file and Mr Crawford said that he would need to take time to read all the documents which Mr Noor had brought with him. After discussing the case for 1 ½ to 2 hours but before the conference had reached its conclusion, Mr Crawford left the conference room to obtain a document from the clerks’ room; but when he returned, Mr Noor had gone, taking with him all the papers including those on which Mr Crawford had been working. The conference therefore ended prematurely.
Mr Noor complained to the Ombudsman that he had received no advice from Mr Crawford and should be repaid the entire fee.
In his provisional and final decisions, the Ombudsman accepted that it was appropriate that Mr Crawford should receive some remuneration for the time he had spent reading papers in advance of the conference. He also accepted that Mr Noor had left before the conference had come to a natural conclusion, and so Mr Crawford did not have the opportunity to provide any kind of ‘summing up’. However, he inferred from the fact that Mr Crawford had not produced notes of the conference that only limited advice had been given, and considered that this amounted to poor service. He therefore directed that Mr Crawford should repay to Mr Noor one half of his fee.
Upon Mr Crawford’s application for judicial review of the Ombudsman’s decision, the judge referred to the considerable latitude afforded to the Ombudsman to resolve complaints swiftly and informally by reference to the statutory criterion of what is fair and reasonable in the circumstances and to the Ombudsman’s ability to apply his own standards of what he considered to have been good practice at the relevant time. However he held that the Ombudsman’s decision was irrational in the Wednesbury sense and must be quashed. It was impossible to read the decision in any way other than as adopting an illogical process of reasoning. It had been irrational to infer from the barrister’s failure to provide the Ombudsman with a note of advice given orally in conference that the client had been given only limited advice and had therefore been provided with a poor service.
Comment:
A second LeO decision was overturned by the Administrative Court on irrationality grounds on 11 April 2014 in R. (on the application of Hafiz & Haque Solicitors) v The Legal Ombudsman [2014] EWHC 1539. This wasa judicial review claim brought by solicitors on the basis that the Ombudsman had upheld a complaint based on findings which were inconsistent with the available evidence and therefore illogical.]
Kate Livesey
4 Pump Court