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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Universal Solicitors (a firm) v Legal Ombudsman [2013] EWCA Civ 1848 (13 November 2013)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2013/1848.html
Cite as: [2013] EWCA Civ 1848
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice Strand, London WC2A 2LL |
||
B e f o r e :
____________________
| UNIVERSAL SOLICITORS (A FIRM) | Appellant | |
| v | ||
| LEGAL OMBUDSMAN | Respondent |
____________________
WordWave International Limited
A Merrill Communications Company
165 Fleet Street London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7404 1424
(Official Shorthand Writers to the Court)
The Respondent did not appear and was not represented.
____________________
Crown Copyright ©
- LORD JUSTICE UNDERHILL: I am going to refuse permission to appeal in this case, despite the helpful and well focused arguments of Mr Malik. I am not going to rehearse the facts on an application of this kind. I will take Mr Malik's two arguments in turn.
- The first concerns the question whether the Ombudsman had jurisdiction. I will not read out Section 126. The essential provision is rule 4.2(a), which is a provision of the kind contemplated by sub-section 3 of Section 126 and allows the Ombudsman to entertain a complaint where a complaint has not been resolved within eight weeks of being made to the authorised person. That expressly includes the case when the authorised person has refused to consider rule 4.3.
- What happened in this case is that Mr Asad initially complained to the Applicant by fax dated 3 June 2011 and again by the recorded delivery letter dated 5 September 2011. The Applicant says that it did not receive either of those complaints. That may seem rather surprising, but I must assume for present purposes that it is correct. When Mr Asad in due course complained to the Legal Ombudsman he sent the Applicant Mr Asad's letter of complaint of 5 September on the express basis that it had said that it had not received it originally and "suspended consideration in order to enable the Firm to consider the complaint". The Applicant declined to do so on the basis that it was not a complaint by Mr Asad himself. On the face of it, that is a straightforward case of a failure and/or refusal to resolve the complaint.
- What Mr Malik says is that the Ombudsman had no "jurisdiction" to suspend its own consideration and refer the complaint to the Applicant. I would see great force in that if what had happened was that there had been no prior attempt by Mr Asad to complain and what the Ombudsman had done had been to refer to the Firm the complaint which Mr Asad had made to it (that is to say, to the Ombudsman). But that is not what happened here. What happened here was that what the Ombudsman did was simply to send on another copy of the complaint which had been made by Mr Asad to the Firm but which had miscarried. I do not regard an act of that kind as an act requiring "jurisdiction". It was a straightforward ministerial act involving no exercise of the Ombudsman's powers. As far as the "suspension" is concerned, all that that means is that the Ombudsman had decided not to enter into the exercise of its jurisdiction to consider the complaint until the Firm had had the opportunity to do so.
- I regard those points, I am afraid, despite the eloquent way in which they were advanced, as unarguable. I accordingly would not give leave on the first ground. I turn to the second ground.
- The Ombudsman identified three pieces of bad advice. We are only concerned with the first, which was the advice that an in-country appeal lay to the First Tier Tribunal from UKBA's decision of 23 November 2010, when it did not do so. The Ombudsman formed the view that that was obviously bad advice, partly because the original decision said on its face that no appeal lay against it but also because that decision was confirmed by the decision of the immigration judge when the appeal failed on the preliminary point about jurisdiction.
- What Mr Malik says was that the advice was not bad -- and was certainly not obviously bad -- because the Basnet decision shows that an essentially similar challenge could, and indeed should, if that line of argument had been taken, have succeeded. There seem to me to be two difficulties with this point.
- First, it is clear that the Applicant did not in fact have the Basnet line of argument in mind at all, and it is clear from the decision of the Tribunal, which I have now seen, that the case was not argued in that way. On the case-law as it stood at that time it was well established that the Tribunal had no jurisdiction: see the decision of Holroyde J in Forester. I do not myself see how the fact that the Tribunal might have been held to have had jurisdiction if the right point had been taken could be said to render the Applicant's service to Mr Asad good service, or reasonable service, when the point in question was not taken and when the current authorities were against it.
- The second point is that the Ombudsman was entitled to reach its decision on the quality of the Applicant's advice on the basis of the arguments and material put before it. Those arguments, and that material, came entirely from Mr Asad because of the firm's refusal to engage in the process. The Ombudsman therefore never had advanced to it the argument that this was a sensible appeal because the Basnet point could have been taken.
- Mr Malik at one point appeared to submit that it was wrong for the Ombudsman as a non-lawyer in a specialist area to reach a decision on the quality of advice given. He reminded me that the law is full of difficult and uncertain points, and that advice which turns out to be wrong does not necessarily count as poor service on the part of the solicitor in question. The general point is well made and I accept it; but I do not believe -- and in the end I am not sure that Mr Malik submitted -- that there is any absolute rule that the Ombudsman cannot form a view on the correctness or reasonableness of a piece of advice about the law. It must no doubt do so with care and bearing in mind the considerations to which I have just referred; but where it is obvious that advice was bad, I see no reason why he cannot say so. On the material before him in this case that was a view which he was entitled to take.
- I do not therefore believe that the proposed appeal has any prospect of success and I must refuse permission.