Sampson: ruling supports LeO’s overall approach
The High Court has struck down an “unlawful and irrational” Legal Ombudsman (LeO) decision to reduce a law firm’s fee and compensate its client for distress and inconvenience.
The ruling also confirmed the broad discretion enjoyed by LeO, and that its decisions can only be challenged on traditional public law grounds
London firm Hafiz & Haque Solicitors was instructed by Tahira Quereshi to act at her asylum interview, agreeing a fixed fee of £2,800. Attendance notes showed the firm had informed Ms Quereshi that the fee did not cover accompanying her to a preliminary screening interview, as the solicitors would be of no assistance.
Hafiz & Haque attended the substantive interviews, but Ms Quereshi’s asylum claim was rejected and a dispute arose over the fees. She complained to LeO.
According to the Lawtel report of the case, LeO decided that Hafiz & Haque had generally provided a reasonable level of service but had not attended the screening interview and provided no evidence to Ms Quereshi that it would not attend. The ombudsman reduced the firm’s fees by £300 to reflect the non-attendance and ordered it to pay her £100 for distress and inconvenience.
The firm judicially reviewed LeO’s decision; whether the attendance notes had been sent to the ombudsman was an issue.
Mr Justice Lewis said the statutory scheme gave LeO considerable discretion. The test was what “in his opinion” was fair and reasonable. This meant that on review, the court did not put itself in the ombudsman’s position; it reviewed the decision to determine whether it was legally flawed on public law grounds.
Here, the judge said it was unfortunate that the ombudsman had not put in a witness statement given the dispute as to whether it had been sent the attendance note. There was no indication that the note had not been received, and so the court concluded on the balance of probabilities that it had been.
In those circumstances the decision was unlawful and irrational as it had been illogical to say there was no evidence Ms Quereshi had been told that Hafiz & Haque would accompany her to the screening interview when the attendance note said it would not.
Chief ombudsman Adam Sampson said: “The judgment and judge’s comments continue to be supportive of the overall approach of the ombudsman and its non-legalistic approach to resolving complaints.
“The decision in this case turned on the specific facts, and there are some technical points around some specific issues and learning which we will take time to consider. We are pleased that the court continued to support the overall role and philosophy of the ombudsman and access to redress for consumers of legal services and also clearly stated, in response to the specific details of this case, its expectation of higher standards from legal professionals and that responses to the ombudsman and clients should be clear, comprehensible and professional.”
The ‘non-legalistic approach’ seemingly includes not bothering with a witness statement in Judicial Review proceedings, resulting in an adverse finding of fact and consequent decision that the LeO had not carried out the investigation lawfully. The quotation from Mr. Sampson is a classic of dissembling blame-shifting and refusal to accept fault.