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Cite as: [2001] EWHC Admin 1149

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White v Office For the Supervision of Solicitors & Ors [2001] EWHC Admin 1149 (17th December, 2001)

		Neutral Citation Number: [2001] EWHC Admin 1149
		Case No: CO 1053/2001

IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

17th December 2001

B e f o r e :

THE HONOURABLE MR JUSTICE LIGHTMAN
____________________

CHRISTOPHER JOHN GRAHAM WHITE

- and -

OFFICE FOR THE SUPERVISION OF SOLICITORS

- and-

(1) BRIAN IAN LAVELLE
(2) BRENDA LAVELLE

____________________

(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

____________________

Mr Paul Stafford (instructed by Messrs Milne & Lyall, Bridport, Dorset for the Claimant)
Mr Nicholas Peacock (instructed by Wright Son & Pepper 9 Gray’s Inn Square London WC1R 5JF for the Defendant)
____________________

HTML VERSION OF JUDGMENT
AS APPROVED BY THE COURT
____________________

Mr Justice Lightman:

INTRODUCTION

Section 37A and Schedule 1A of the Solicitors Act 1976 (“the Act”), inserted into the Act by section 93(2) of the Courts and Legal Services Act 1990, introduced into the law a means of redress for clients who make complaints of the provision of inadequate legal services by their solicitors. This application for judicial review (made with permission of Jackson J) raises important questions as to the procedure to be adopted in the adjudication whether such complaints are well-founded and whether (and if so what) redress should be given.

The Interested Parties, Mr and Mrs Lavelle, (“the Clients”) retained the firm of Milne & Lyall (“the Solicitors”) to act for them on a conveyancing transaction. The Claimant Mr White is the senior partner of the Solicitors and the partner with responsibility for conveyancing. Subsequently a dispute arose between the Clients and the Solicitors, and the Clients made a series of complaints to the Office for the Supervision of Solicitors (“the OSS”), an executive agency of the Law Society charged with responsibility for dealing with such complaints. The Law Society is the Defendant on this application. In a First Instance Decision an Adjudicator and subsequently in an Appeal Decision the Clients Relations Appeals Casework Sub-committee (“the Appeals Committee”) upheld three of the complaints, rejecting the remainder. By this application Mr White on behalf of the Solicitors seeks to challenge those decisions to uphold the three complaints on the grounds of procedural irregularity and unfairness and on the ground that the decisions are substantively unreasonable.

These proceedings have revealed that there is no single document setting out the procedure to be followed on the investigation and determination of such complaints against solicitors. There are merely a series of information sheets supplied by the Law Society to the parties at the various stages of the proceedings. The parties (and most particularly solicitors) are accordingly unable to find any statement in a single document of the procedures or any guidance in this regard in any authoritative Law Society publication or in any textbook (e.g. Cordery on Solicitors). This lacuna is most unfortunate and may be at least partially responsible for the misunderstandings on the part of the Solicitors in this case. These proceedings have also revealed that the Law Society devised the procedure and prepared the information sheets under the impression (which in my view is clearly mistaken) that a solicitor has under paragraph 5 of Schedule 1A of the Act a right of appeal against an adverse decision of the Appeals Committee to the Solicitors Disciplinary Tribunal (“the Tribunal”). These circumstances occasion the need in this judgment to afford a full examination of the procedure laid down by the Law Society in respect of such complaints to be elicited from the information sheets read in conjunction with the provisions of the Act.

FACTS

On the 8th January 1998 the Clients retained the Solicitors to act on their behalf on their proposed purchase of 9 Ridge Way, Bradpole, Bridport (“the Property”). At the outset the Solicitors gave the Clients an oral fee estimate for the legal work on the conveyancing transaction of Ł275 plus VAT. At the same time the Solicitors also gave the Clients a copy of their Terms and Conditions of Business, which they read and signed. These stated that the fee estimate was based on an average transaction; that the Solicitors reserved the right to increase their charges if the matter became unexpectedly complicated; but this was on the understanding that the Solicitors would warn the Clients immediately such a situation arose. The Clients had no permanent address (they were living temporarily in a caravan); and accordingly there was a need for speedy completion and, since letters could not be posted to them, it was agreed that they should daily visit or telephone the Solicitors’ office.

On the 20th January 1998 on the occasion of a site visit, the Solicitors discovered that the sale included as part of the garden land outside the vendor’s registered title. The Solicitors reported this to the Clients on the occasion of their visit to the Solicitors’ offices on the 27th January 1998. On this occasion the Solicitors gave to the Clients a bill of the same date prepared on the 26th January 1998 (“the First Bill”) in the sum of Ł335.08, made up of Ł275 in legal charges, Ł10.19 in disbursements up to and including the proposed completion and Ł49.89 VAT on both the charges and disbursements. The Solicitors told the Clients that the First Bill was “not necessarily the final amount”.

Thereafter the Solicitors did further work in relation to the conveyancing transaction, most particularly on the 27th and 28th January 1998, but on the 3rd February 1998 the proposed purchase went off. On the 13th March 1998 the Solicitors sent the Clients a bill dated the 11th February 1998 (“the Second Bill”) for Ł828.78, made up of Ł654.40 in legal charges, Ł56.01 in disbursements and Ł118.37 VAT on both the charges and disbursements. By letter dated the 19th March 1998 to the Solicitors (“the Clients’ Letter”) the Clients made a series of complaints against the Solicitors. A number of these complaints were plainly manufactured and totally groundless. Most particularly the Clients complained of the conveyancing services provided: these services were in fact of the high standard to be expected of them. The Clients’ Letter went on to threaten proceedings for negligence and a complaint to the OSS unless the Second Bill was reduced to Ł100. As Counsel for the Law Society has accepted before me, the Clients’ Letter was “over the top” and a “try-on” directed to persuading the Solicitors without any proper justification to accept the reduced (in effect nominal) fee of Ł100. One complaint included in the Clients’ Letter was the increase in the second Bill without any prior warning of the fee for legal charges from Ł275 to Ł654.40.

Mr White was plainly affronted by the Clients’ Letter. He went through the entire file of papers and concluded that the complaints lacked any foundation. Other commitments delayed his sending a reply until the 29th April 1998. In his letter of that date (“the Solicitors’ Letter”) he explained that the increase in fee was due to the large number of attendances on the Clients which could not have been forecast at the outset. The evidence is to the effect that these attendances were primarily on the 26th (after preparation of the First Bill), the 27th and 28th January 1998 when dealing with the problem of title to the garden. The Solicitors’ Letter concluded by describing the allegations in the Clients’ Letter as “unfounded” and “scurrilous” and in default in payment of the Second Bill in full within 7 days threatened to pass it to their debt collection department. The Clients paid in full, but in July 1998 the Clients made their complaint to the OSS.

THE STATUTORY PROVISIONS

Section 37A of the Solicitors Act 1976 provides as follows:

“Schedule 1A shall have effect with respect to the provision by solicitors of services which are not of the quality which it is reasonable to expect of them.”

Schedule 1A reads as follows:

“INADEQUATE PROFESSIONAL SERVICES

Circumstances in which Council’s powers may be exercised

1.—(1) The Council may take any of the steps mentioned in paragraph 2 (‘the steps’) with respect to a solicitor where it appears to them that the professional services provided by him in connection with any matter in which he or his firm have been instructed by a client have, in any respect, not been of the quality which it is reasonable to expect of him as a solicitor.

(2) The Council shall not take any of the steps unless they are satisfied that in all the circumstances of the case it is appropriate to do so.

(3) In determining in any case whether it is appropriate to take any of the steps, the Council may—

(a) have regard to the existence of any remedy which it is reasonable to expect to be available to the client in civil proceedings; and

(b) where proceedings seeking any such remedy have not been begun by him, have regard to whether it is reasonable to expect him to begin them.

Directions which may be given

2.—(1) The steps are—

(a) determining that the costs to which the solicitor is entitled in respect of his services (‘the costs’) are to be limited to such amount as may be specified in the determination and directing him to comply, or to secure compliance, with such one or more of the permitted requirements as appear to the Council to be necessary in order for effect to be given to their determination;

(b) directing him to secure the rectification, at his expense or at that of his firm, of any such error, omission or other deficiency arising in connection with the matter in question as they may specify;

(c) directing him to pay such compensation to the client as the Council sees fit to specify in the direction;

(d) directing him to take, at his expense or at that of his firm, such other action in the interests of the client as they may specify.

(2) The ‘permitted requirements’ are—

(a) that the whole or part of any amount already paid by or on behalf of the client in respect of the costs be refunded;

(b) that the whole or part of the costs be remitted;

(c) that the right to recover the costs be waived, whether wholly or to any specified extent.

(3) The power of the Council to take any such steps is not confined to cases where the client may have a cause of action against the solicitor for negligence.

Compensation

3.—(1) The amount specified in a direction by virtue of paragraph 2(1)(c) shall not exceed Ł1,000 ....

Taxation of costs

4.—(1) Where the Council have given a direction under paragraph 2(1)(a), then—

(a) for the purposes of any taxation of a bill covering the costs, the amount charged by the bill in respect of them shall be deemed to be limited to the amount specified in the determination; and

(b) where a bill covering the costs has not been taxed, the client shall, for the purposes of their recovery (by whatever means and notwithstanding any statutory provision or agreement) be deemed to be liable to pay in respect of them only the amount specified in the determination.

(2) Where a bill covering the costs has been taxed, the direction shall, so far as it relates to the costs, cease to have effect.

Failure to comply with direction

5.—(1) If a solicitor fails to comply with a direction given under this Schedule, any person may make a complaint in respect of that failure to the Tribunal; but no other proceedings whatever shall be brought in respect of it.

(2) On the hearing of such a complaint the Tribunal may, if it thinks fit (and whether or not it makes any order under section 47(2)), direct that the direction be treated, for the purpose of enforcement, as if it were contained in an order made by the High Court.”

The Law Society delegated its powers under Schedule 1A to Adjudicators and the Appeals Committee who are thus empowered to determine whether the service provided by the solicitor was adequate and to award the appropriate redress.

THE PROCEDURE

At any stage after receipt of a complaint the Law Society may decide that the subject matter of the complaint should give rise to an intervention into the solicitor’s practice or disciplinary proceedings or that the complaint (if pursued) should be the subject of civil proceedings. In those circumstances the Law Society may determine that the procedure under Schedule 1A is inappropriate or inappropriate at a particular point in time. Absent of such special circumstances, a complaint of inadequate professional services may be expected to be dealt with under Schedule 1A.

The first stage in the procedure adopted by the OSS is an investigation by a caseworker who obtains evidence and information from the solicitor and client and seeks to broker a settlement between them and (in default of such settlement) prepares a Formal Report. This is based on the evidence and information obtained and seeks to set out the complaints made by the client, the rival contentions of the solicitor and client in respect of those complaints, and his conclusions and recommendations.

The Formal Report begins with a statement of the purpose of the Report which reads as follows:

“PURPOSE OF THIS REPORT

5. This report sets out the caseworker’s conclusions and recommendations based upon the evidence and information considered at this stage. If no comments are received from either party within 21 days then we will assume that they accept the contents of this report. The report, together with any observations in writing from the parties which are received within the time limit, will form the basis of a Formal Decision on the standard of service provided by the solicitors.”

The Formal Report concludes with a statement that it is not a formal decision, but will be taken into account by the adjudicator. The Formal Report goes on to say:

“It is in your interests to comment as fully as possible on the proposed recommendations so that the adjudicator may have regard to your comments when making the formal decision. The adjudicator is free to reach his or her own decision based on the contents of this report and the observations of the parties.”

In his Formal Report in this case dated the 21st August 2000 (which included these statements) the caseworker, after examining each of the complaints, the facts and information as they appeared to him and the rival contentions of the parties, upheld three and rejected the remainder of the complaints. The three which he upheld as constituting inadequate professional service were:

i) the delay between the 19th March and the 29th April 1998 in sending the Solicitors’ Letter responding to the complaints in the Clients’ Letter;

ii) the offensive use of the term “scurrilous” in referring to the allegations in the Clients’ Letter; and

iii) the failure to provide information to the Clients of the substantial increase in costs from the figure in the First Bill to that shown in the Second Bill.

As invited by the Formal Report Mr White made his comments to the caseworker by letter dated the 31st August 2000. Mr White challenged none of the critical facts set out in the Formal Report. He accepted that the delay in replying to the Clients’ Letter was unfortunate and made his own (incorrect) calculation of the number of working days included in the period. He sought to justify the use of the word “scurrilous” as a response to an immoderate letter containing unfounded allegations. In respect of the failure to inform the Clients of the increase in costs, he wrote:

“Staff members can relate incidents when costs were discussed if this is thought necessary”.

THE SECOND STAGE

The second stage is a First Instance Decision on the complaints by an adjudicator. The Adjudicator has an exclusively judicial role: unlike the caseworker he has no investigatory role. This decision is made on the basis of the Formal Report and the observations in writing from the parties received within the 21 day time limit. The First Instance Decision contains the statement that both parties have a right of appeal against the decision within 28 days of notification of it; that the solicitors do not have to comply with the decision during that 28 day appeal period; and that if there is no appeal the decision must be implemented by the solicitors within 7 days following the expiry of the appeal period.

In this case the Adjudicator made the First Instance Decision on the 5th October 2000. He based his decision on the Formal Report and Mr White’s comments, reached the same conclusion as that expressed in the Formal Report and he awarded the Clients Ł75 compensation for the distress occasioned by failure to deal with the complaints in the Clients’ Letter adequately by reason of the delay and confrontational approach adopted; and he directed that the Solicitors’ fees should be reduced to Ł275 (a reduction of Ł379.40) plus VAT and disbursements and that accordingly the Solicitors refund the sum of Ł379.40.

THE THIRD STAGE

The third stage is an appeal to the Appeals Committee. An information sheet is sent to the parties to explain the procedure before this committee which (like the Adjudicator) has an exclusively judicial, and no investigatory, role. The information sheet makes plain that the Appeals Committee considers only the Formal Report, the comments of the parties on that report, the First Instance Decision, the grounds of appeal and the comments of the complainant.

In this case the OSS sent the Solicitors a letter enclosing the information sheet and the Solicitors set out the grounds of appeal in the form of detailed representations to the Appeals Committee. In particular they stated that “it was not possible to give any warning to the client about the escalating costs”, virtually all of which were incurred on the 27th and 28th January 1998; that the time taken by the Solicitors to reply to the Clients’ Letter was not excessive in the circumstances; and that faced with the Clients blackmailing letter designed to obtain a reduced fee of Ł100 and the fact that the Clients had agreed an estimated fee of Ł275, no solicitor should be expected to try and defuse the situation.

On the 31st January 2001 the Appeals Committee having considered the Formal Report, the Solicitors’ comments, the First Instance Decision, the Solicitors’ grounds of appeal and the comments of the complainants, resolved to dismiss the appeal. The Appeals Committee agreed with the findings and reasons set out in the First Instance Decision. In particular it held that the excess over the estimated legal charges could not be acceptable unless discussed with the Clients. The Appeals Committee however went further than the Adjudicator and held that the way the Solicitors had handled matters, and in particular the tone of the appeal, can only have added to the Clients’ distress and on that ground increased the award of compensation to Ł150.

THE FOURTH STAGE

There are a series of options at the fourth stage. The only stage specifically contemplated by the Act is a complaint to the Tribunal under paragraph 5 of Schedule 1A. This paragraph provides that the direction made by the Adjudicator and Appeals Committee can found no legal proceedings save a complaint to the Tribunal in respect of a failure to comply with the direction: the Tribunal may however order that the direction be enforceable as if it were contained in an order of the Court. This does not mean that a direction has no legal effect unless so confirmed by the Tribunal. The provisions of paragraph 4 regarding taxation of costs would appear to operate according to their terms without the need for recourse to any proceedings. But confirmation of a direction to take any action (e.g. to repay costs already paid) will be necessary.

The question arises as to the nature of the jurisdiction of the Tribunal and as to who is entitled to invoke that jurisdiction. The Law Society take the view that paragraph 5 confers on all parties (including the solicitor) a right of appeal against the Appeals Committee’s decision. Mr Peacock for the Law Society explained its reasoning: paragraph 5 confers a right to invoke the jurisdiction of the Tribunal on “any person”, and the term “any person” includes the solicitor. In my view two things are clear: (1) paragraph 5 cannot be invoked by the solicitor. Whilst the term “any person” might otherwise be apt to include the solicitor, in this context the term must be confined to the client or the Law Society, for it is not sensible to read paragraph 5 as conferring on a solicitor a right to complain to the Tribunal in respect of his own failure to comply with a direction; and (2) paragraph 5 confers no right of appeal. It is designed to afford, not a further level of appeal, but to the client a sanction if the solicitor does not willingly comply with a direction. The language does not admit of allowing the client to appeal against a decision to refuse to make a direction or to refuse to make a direction in the terms sought. Recourse is only available to the Tribunal to give to a direction made by the Adjudicator or Appeals Committee the legal status of an obligation enforceable in court proceedings. On no basis can paragraph 5 confer any right of appeal against a direction on the solicitor.

The other two options are an application to the Legal Services Ombudsman (available only to the client) and an application for judicial review (open to all parties). The Solicitors have in this case opted to apply for judicial review, and I must now turn to consider the merits of that application.

JUDICIAL REVIEW

I turn now to the grounds of challenge to the First Instance Decision and the decision of the Appeals Committee.

The first complaint made is in respect of the failure of the Adjudicator and the Appeals Committee to follow up the passage in the Solicitors’ comments on the Formal Report in which it was stated that staff members could relate incidents when costs were discussed: this failure is said to amount to procedural unfairness. The Solicitors argue that, if there had been such a follow up, the allegation of failure to provide information about the increase in costs would have been fully answered. In my view this complaint lacks any foundation for three reasons: (1) it was not the responsibility of the Adjudicator or the Appeals Committee to follow up what was there said or to request evidence: it was for the Solicitors to decide what evidence to adduce and then to adduce it. The responsibility for any failure to adduce evidence was that of the Solicitors alone. The informality of the procedure does not alter the position in this regard. The complaint is accordingly misconceived in law; (2) the passage in the comments was vague and ambiguous: it did not say (and, it would appear, deliberately did not say) that the staff members discussed the increase in costs; and (3) the evidence adduced on this application as to any such discussion is likewise totally uninformative.

The second complaint made is that the Adjudicator and the Appeals Committee did not examine the primary documents put before the caseworker and used by him in the preparation of the Formal Report, but confined their attention to the Formal Report and the parties’ comments on it and (in the case of the Appeals Committee) the First Instance Decision and the notice of appeal. This is alleged to have constituted procedural unfairness. This complaint is likewise without substance. The information sheets made clear to the Solicitors that this was the course which would be followed by the Adjudicator and the Appeals Committee unless a party required a wider examination of the facts and documents; that save insofar as the parties made any comments the contents of the Formal Report would be treated as agreed and that it was incumbent on the parties in their comments or in the notice of appeal to bring to the attention of the Adjudicator and Appeals Committee any further material they wished to have taken into consideration. The reality is that the Solicitors now regret that their comments were perhaps less full and considered than they now wish. There was plainly no procedural impropriety. I should mention that at one stage of the hearing before me the Solicitors complained that they never received the information sheet relating to the appeal to the Appeals Committee. They acknowledged that they received a letter from the OSS which stated that an information sheet was enclosed, but they said that it was not in fact enclosed. The complaint was totally without merit, for even if the information sheet was not enclosed (which is scarcely credible) the Solicitors were put on notice by the contents of the letter that it was intended to be enclosed and yet at the time never referred to its absence nor requested a further copy.

The Solicitors thirdly complained that they were entitled before the Adjudicator and Appeals Committee as a matter of procedural fairness to an oral hearing but did not obtain it. Whilst the Solicitors were entitled to a fair hearing, procedural fairness does not require an oral hearing in all cases. Whether an oral hearing is required must depend on all the circumstances and in particular whether an issue of fact critical to the decision-making can only satisfactorily be resolved in this manner: see R v Solicitors Complaints Bureau ex parte Curtin [1993] 6 Admin LR 657 at 668 per Steyn LJ. In my view the complaint of the absence of an oral hearing should be rejected for two reasons: the first is because there was no such issue in this case; and the second is because the Solicitors never asked for an oral hearing. When a party is well informed as to his rights (as the Solicitors must be presumed to have been in this case) or legally represented, rarely (if ever) can it be incumbent on the tribunal to prompt a request for an oral hearing if neither party requests it.

The fourth complaint is that the decisions of the Adjudicator and Appeals Committee are substantively unfair. In particular it is said that the Solicitors had no opportunity to warn the Clients about the increase in costs having regard to the pressure to complete the transaction, and that the Clients’ Letter was such as to invite the response it received and that there was no scope in the circumstances for any “bridge-building”. The answer to this complaint is (as held by the Adjudicator and Appeals Committee and as is plain) there was an opportunity at one of the several interviews with the Clients for the Solicitors to give warning of the increase; and it is part of the professional duty of a solicitor, however much provoked and however ineffective on any gesture on his part may be to allay the animosity of his client, to behave with restraint. The Adjudicator and the Appeals Committee are the judges of the professional standards which solicitors must maintain. I can see no basis for holding that their decisions in respect of the Solicitors’ conduct in issue in this case are unreasonable or otherwise open to question.

CONCLUSION

I accordingly reach the conclusion that there are no grounds for challenging the decisions of the Adjudicator or the Appeals Committee. I therefore dismiss the application. I should however add two observations. First the course of proceedings before the Adjudicator and Appeals Committee in this case reveals the need for solicitors to be aware of the procedure laid down for determining complaints and the care and attention required by a solicitor against whom a complaint is made in presenting his full case and evidence at the proper time. It may not be possible to make good a deficiency later. Secondly it may be appropriate for the Law Society to reconsider the procedure in the light of the views which I have expressed on the construction of paragraph 5 of Schedule 1A and publish it in a guide available to solicitors and the public.

*****

MR STAFFORD: First of all, following on from what your Lordship said in judgment, it was encumbered from all the evidence that it is to give the parties and especially the solicitors a statement of proceedings that (inaudible) entitled so to enable them to present their case in evidence to the Court. The OSS failed to do that and that failing led to the solicitors' case being put to the OSS piecemeal first by way of letter with documents in response to the enquiries and then by way of comment on the case reference report which contained no structure narrowed to the findings of claim.

Lastly, by way of submission, further evidence and more documents to give (inaudible). As your Lordship found in paragraph 3, because there was no single document setting out the procedure to be followed, merely a series of information sheets, that was a lacuna which your Lordship describes as "most unfortunate" and may at least be partially responsible for misunderstandings on the part of the solicitors in this case. My Lord, that is my first point in support of the submissions.

My second point, which is linked to it, is this - - it is the concession which was made to your Lordship by my learned friend - - that the Lavelle's letter of 19th March was a trial directed to persuading the solicitors without any proper justification, as your Lordship found, to accept a nominal fee for Ł100. My learned friend added that the Law Society accepted that the firm did a jolly good job for difficult clients and that the reaction of most or all solicitors to the letter of 19th March would have been unprintable. That was his wording. That concession which he made was endorsed in your Lordship's judgment, but the judgment acts, significantly in my submission, that a number of the complaints were plainly manufactured and totally - -

MR JUSTICE LIGHTMAN: Those were the complaints by the client?

MR STAFFORD: Yes. Plainly manufactured and totally groundless, and that the conveyancing services were in fact of high standard. It is submitted, my Lord, that the Court's finding of fact about the letter of complaint of 19th March, which was made on the basis of the same evidence that is presented to the OSS, that your Lordship's findings of fact differed significantly from those from the OSS which made no such findings. Under the OSS procedure, the core principles for an awards compensation are: that an award may be made for financial loss, and none was found to occur in this case; or alternatively for distress and inconvenience. The adjudicator for the OSS awarded compensation to the Lavelles for the distress caused by the failure to deal with the - -

MR JUSTICE LIGHTMAN: Is this rearguing the case?

MR STAFFORD: No, I am not rearguing the case. I do accept that it may sound as if I am, but I am not doing that. The point that I am getting to is this: that the OSS found clearly that there was distress on the part of the client for the service, but where a letter, we say, of complaint has been characterised at a trial - - that is in your Lordship's judgment -- -- with a number of complaints found to be plainly manufactured and totally groundless, it is unreasonable and wrong to infer distress on the part of the maker of the complaint simply because the recipient of the complaint took five weeks to deal with it rather than two.

It is plain on the facts that your Lordship has found that by inferring distress on the part of the Lavelles, the OSS never understood that the letter of 19th March was a trial. Your Lordship's judgment has therefore made an important modification, or qualification, to the OSS decisions with the result that those decisions, which are in the public domain, as the Law Society acknowledged, have to be read subject to the judgment. Without the judgment, the OSS decisions, when brought at the Lavelles' instigation into the public domain could be extremely damaging to the solicitors.

So, my Lord, on the basis of those two points, the procedural lacuna and the substantial difference in the findings of fact made by your Lordship and the findings made by the OSS, we say that this was an application which needed to be brought. It resulted in significant concessions from the Law Society which were only made before your Lordship in Court, and it is right in the circumstances that the order made should be that each party bears its own costs, not that we should pay the Law Society's costs.

My Lord, those are my submissions on costs.

MR JUSTICE LIGHTMAN: I will deal with those very shortly. It seems to me (inaudible) claimants in favour for costs. I have said in my judgment that the procedure is most unsatisfactory, but I have also held that there was complete justice done in this case under the procedures adopted.

As regards the question of findings of fact, I have in no way made any findings of fact that are in any way inconsistent, or ever intend to be inconsistent with the findings of the adjudicator for the accused. That is not the function of the judge in judicial review proceedings.

I think this is one of those cases where whilst I cannot but have some sympathy with the applicant, as I have indicated in my judgment, nonetheless the application for judicial review was bound to fail and did fail and therefore the claimant must pay the costs.

I am minded to assess the costs, save the costs of the taxation. I think your firm ought to have a chance to study it, and you can mention it to me at, say, 1 o'clock or 2 o'clock when we can take the time to deal with the assessment.

MR PEACOCK: I am grateful for that opportunity, but I am in another court starting in 20 minutes time.

MR JUSTICE LIGHTMAN: Well, if you could agree any time with your firm to discuss this matter, I am content with, say, 4 o'clock, any time. (inaudible) further conduct with this case then the matter can be brought back. If you can agree a figure with your firm then it seems to me you need not come back at all; just mention that to the assessor before drafting the order setting out that figure.

MR PEACOCK: My Lord, we are very grateful.

MR STAFFORD: My Lord, before we leave the Court, can I say that for the purpose of any appeal which my clients may be minded to consider, may we have an extension of time for lodging the appellants' notice, because 14 days from today would expire on 31st December? I would ask your Lordship if we may have permission until 14th January.

MR JUSTICE LIGHTMAN: You do not object to that?

MR PEACOCK: My Lord, not at all.

MR STAFFORD: I am very grateful.

MR JUSTICE LIGHTMAN: Thank you both for your help.

(The court adjourned)