England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2
		Monday, 28th February 2005

1. MR JUSTICE HUGHES: Mr Maye renews his application for permission to claim judicial review after refusal by Moses J. What he seeks leave to do is to challenge the decision of the Legal Services Ombudsman given in writing on 25th May 2004. The Ombudsman had been asked by the claimant to investigate the handling by the Law Society, via its Office for the Supervision of Solicitors, of complaints which he had about the service provided by solicitors who had been instructed in relation to the administration of the estate of the claimant's late father.
2. The history of the complaints about the solicitors and the subsequent complaints about the Law Society, and now about the Legal Services Ombudsman, is, taken overall, a lengthy one. In the course of it Mr Maye has articulated very fully a large number of separate complaints about the solicitors concerned, some of which it is plain had some substance and were found to have. The papers which he has submitted in support of the present application run to several hundred, and a single document setting out his response to a caseworker's report from the Office for the Supervision of Solicitors in June of 2003 is itself over 100 pages long.
3. I mean no Mr Maye no discourtesy, but it is not appropriate in this court to review the merits of his complaints. Though I am not sure that even now Mr Maye even understands it, I have to say that the question here is not whether he was right and the solicitors wrong, nor is it whether he was right and the Office for the Supervision of Solicitors was wrong It is not even whether the Legal Services Ombudsman reached the wrong conclusion, because when a decision making power is entrusted to a person such as the Legal Services Ombudsman, it is the power to reach the right conclusion but it is also the power to reach the wrong conclusion, and it can be challenged in this court if, but only if, the person concerned has acted unlawfully. Only in that event can this court intervene. This is not a further Court of Appeal in which to debate the merits or demerits of the complaint against the solicitors or the complaint against the Office for the Supervision of Solicitors.
4. The complaints amounted on the claimant's case to this. He and his brother were executors. There were several other siblings and family members with various entitlements under a will which was not entirely straightforward. It was the other executor brother who consulted the solicitors first, but then both brothers did. At some stage in the long history there has been a suggestion that the solicitors should not have acted for both, but it is the claimant's present position that there was no obstacle to their doing so, and that has been his stance, if not throughout, also at an earlier stage. Additionally, however, apart from that possibility of complaint, the claimant had a number of complaints of delay, failure to keep him informed, failure to respond to his telephone calls, failure to tell him of change of fee earners, failure to give proper details of the firm's complaints handling procedure and a number of complaints about the manner and assessment of their bills.
5. The caseworker for the Office for the Supervision of Solicitors produced a report in June of 2003 to which the claimant responded in the long document that I have mentioned, itself produced in July 2003. The case went from there to an adjudicator. He reported on 8th September 2003. He upheld some of the complaints against the solicitors, but in the claimant's view not nearly enough. The claimant sought a review by an external panel of adjudicators. He made further detailed written submissions. The external panel considered it and reported on 26th November 2003. The panel upheld the decision of the adjudicator and the claimant makes the same complaints about the panel. At that stage the claimant referred the matter to the Legal Services Ombudsman.
6. The functions of the Legal Services Ombudsman are set out in section 21 of the Courts and Legal Services Act 1990. In short, the Legal Services Ombudsman has a power, but not a duty, to investigate any allegation which is properly made to her relating to the manner in which a complaint made to a professional body has been dealt with. In other words, the function of the Ombudsman is not to investigate the original complaint against the solicitors, it is to see whether the complaint has been handled properly by the complaints machinery of in this case the Law Society or not.
7. The nub of the present claim is that the claimant submitted to the Ombudsman that she could only do the job properly if she went back to the original complaint and re-investigated his complaints against the original solicitors. It is perhaps possible to conceive of some cases in which the Ombudsman might take the view that that was necessary, but the decision whether it is necessary or not is a decision for her. The nub of the present application for permission to seek judicial review is a submission that the decision of the Ombudsman not to go back to the merits of the original complaint against the solicitors was an unlawful decision. That submission, which would have to be made good to succeed on an application for judicial review, is an unsustainable, unarguable submission.
8. I recognise Mr Maye's frustration because he believes that the complaints which he originally made should have been upheld and have not been, but the present application is wholly misconceived. Moreover, I have to say that Mr Maye is well aware of it, because among the many stones that he has turned in his quest for satisfaction in this matter he wrote to the Parliamentary Undersecretary of State at the Department of Constitutional Affairs and received this answer:

"Mr Maye is not happy that the Ombudsman's report in his case fails to address his original complaints about a solicitor. I should explain that the Ombudsman's primary function is to investigate the complaints handling of the professional bodies and not to consider the original complaint made against the members of the legal profession."

9. For all those reasons, this application for permission has to fail. I have read the seven page decision of the Legal Services Ombudsman. I can detect no arguable error of law in it, and certainly it is plain the submission that she was legally bound to go back and re-investigate the merits of the original complaint against the solicitors is a submission which is not capable of being argued.
10. MR JUSTICE HUGHES: I am afraid, Mr Maye, for those reasons you have to lose in this court. Nothing to do with the merits of the original complaint. Do you follow?
11. THE APPLICANT: Yes, my Lord.
12. MR JUSTICE HUGHES: Miss Broadfoot?
13. MISS BROADFOOT: My Lord, I do have an application for costs.
14. MR JUSTICE HUGHES: Do you have a schedule?
15. MISS BROADFOOT: Yes, I do. Your Lordship ought to have a schedule that was sent on 21st February.
16. MR JUSTICE HUGHES: I may have. There is rather a lot of paper.
17. MISS BROADFOOT: 23rd February it was sent.
18. MR JUSTICE HUGHES: With the acknowledgement of service?
19. MISS BROADFOOT: No, my Lord. The acknowledgement of service was filed back in October.
20. MR JUSTICE HUGHES: Yes, I have it.
21. MISS BROADFOOT: Your Lordship ought to see that those are the costs, it is £1,556.87. That is in respect of the actual filing of the acknowledgement of service alone.
22. I am making an application for the costs of today on an exceptional basis for the following reasons. Firstly, the claimant must have been aware, certainly has had adequate warning, that this application was hopeless. He has had the knowledge from the letter that your Lordship quoted from the Parliamentary Undersecretary of State and he has also had, more specifically, the refusal of permission by Moses J on 4th November 2004, which stated in terms --
23. MR JUSTICE HUGHES: Well, there is a warning there, was there not?
24. MISS BROADFOOT: That is right, my Lord. That is of course without your Lordship having to deal with the issue of delay which was in our grounds but I did not need to press, but we would say that does actually in terms set out a costs warning, which is itself unusual.
25. The second exceptional type area of this is the persistence with which these complaints have been pursued. The minutiae of the complaints has been pursued all the way through for years through to the Law Society. There has been endless correspondence, of which your Lordship only has a flavour in the documents before him. It has been pursued all the way to judicial review and in those circumstances, my Lord, this claimant would not clearly take no for an answer, that is an additional feature of it being exceptional.
26. MR JUSTICE HUGHES: How much more do you say you want?
27. MISS BROADFOOT: The total for attending today, my Lord, I have an updated schedule if I could just hand that up. I am afraid the figures are written in. It comes to £3,004.69. On the maths, my Lord, that is an additional --
28. MR JUSTICE HUGHES: Well, it is either £1,550 or £3,000.
29. MISS BROADFOOT: Yes.
30. MR JUSTICE HUGHES: I have it. Thank you very much.
31. Mr Maye, Miss Broadfoot wants her costs because, whether or not you were right originally, you were wrong in bringing this application, it was hopeless. Now, can you resist the application for her costs?
32. THE APPLICANT: Well, my Lord, I believe I was entitled to legal representation in the first place, and had I obtained legal representation then perhaps the proceeding would have never happened. I would have had to -- I approached several solicitors to assess the merits of the case in the first place.
33. MR JUSTICE HUGHES: I see that.
34. I am afraid, Mr Maye, that if you choose to bring the application and you fail, and you were bound to fail, then you are liable for the costs. I am going to limit the costs to the costs of the acknowledgement of service because, although I rather agree with Miss Broadfoot that you had the clearest possible warning from Moses J when he refused permission on paper that this was hopeless and that you might end up having to pay the costs, and although I am inclined to agree with her also that you have been unusually persistent in hopeless correspondence, never mind whether you were right or not originally, since it was hopeless she did not really need to come, although it is always pleasant to have defendants represented. I see no reason to depart from the usual practice on the basis of Mount Cook.
35. The application for permission is refused. Mr Maye must pay the costs of the first defendant assessed in the sum of £1,556.87.
36. THE APPLICANT: My Lord, could I have time to pay that amount.
37. MR JUSTICE HUGHES: That will be dealt with elsewhere. Do you want to make an offer now? It may be quicker to deal with it now.
38. Do you have instructions to deal with it, Miss Broadfoot?
39. MISS BROADFOOT: No, my Lord, but I am sure --
40. MR JUSTICE HUGHES: You tell me what you say --
41. THE APPLICANT: I am in receipt of income support.
42. MR JUSTICE HUGHES: Right. You tell them what you are prepared to pay them monthly.
43. THE APPLICANT: Okay.
44. MR JUSTICE HUGHES: Do you want to tell me now or do you want to tell them outside court? What I suggest you do, Mr Maye -- you have to pay, I am afraid.
45. THE APPLICANT: Of course, I do accept --
46. MR JUSTICE HUGHES: If you come here with a hopeless case you end up paying the costs. However much sympathy one may have for your original position, there is none for being here. What I suggest you do is speak to the lady who is sitting behind Miss Broadfoot outside. They are entitled to enforce the order, but I expect if you make them a sensible offer to pay a monthly sum you may find that they hold their hand. Do you follow?
47. THE APPLICANT: Yes.
48. MR JUSTICE HUGHES: Thank you very much indeed.