England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		27th February 2008

Mr Justice Underhill:

1. There are before me renewed applications by the Claimants, a firm of solicitors, for permission to apply for judicial review of two decisions of Mr Stuart Waterworth, an Adjudicator under the Law Society complaints scheme (now known as the Legal Complaints Service) made under Schedule 1A to the Solicitors Act 1974. The first decision is dated 19^th January 2007 and relates to a complaint from a Mr Zarif Mohammed. The second decision is dated 26^th January 2007 and related to a complaint from another firm of solicitors called Ben Hoare Bell on behalf of a previous client of the Claimants called Hussein Ali Mohamadi. The proceedings challenging the first decision are CO/2885/2007 and the second CO/2886/2007
2. The Claimants were represented by Mr. Sheraz Ahmed and the Law Society by Ms. Natalie Stopps. Ms. Stopps was handicapped by the fact that, for reasons which I did not seek to investigate, the Society was unaware until the day before the hearing that CO/2885/2007 was listed. In the case of CO/2886/2007 she was able to supply me during the hearing with further documents of some relevance which, unaccountably, the Claimants had failed to include in their bundle. The need to digest these was part of the reason – together with the general pressure of time in a busy list – why I have reserved my decision. But in the case of CO/2885/07 she had no file available. Since the hearing, and after I had produced a first draft of this judgment, the Society's solicitors have sent to me (and copied to the Claimants) a small clip of further documents in that case (together with one further document in CO/2886/2007 which had been referred to by Ms. Stopps but without my being given a copy). Although these are undoubtedly useful to have, and should have been provided by the Claimants, they contain no material information which was not apparent from the original bundle or on which, therefore, I was not addressed; and it is not necessary for me to invite any further submissions.

CO/2885/2007: Mr Mohammed

3. Mr Mohammed was an Afghan asylum seeker. He had entered the UK and claimed asylum in early 2002. He had originally left Afghanistan allegedly because of fear of persecution by the Taliban. He consulted the Claimants and appears to have been assisted by them in completing his formal Statement of Evidence for the Home Office in March 2002. By that time the Taliban had been overthrown, but he included in his statement a brief claim to the effect that as a Pushtun he would face persecution by the Northern Alliance, who were then in power.
4. In June 2004 Mr Mohammed was called for interview at the Home Office. He was advised by a letter from the Claimants dated 18^th June 2004 not to attend the interview without representation (which he could not afford), because – so it was said – the officials interviewing him could "write down anything they wanted about your case" and he would have no way of checking the accuracy of their record. On receipt of that letter he went to see the Claimants. He had a meeting on 21^st June 2004 lasting some eighteen minutes. There is a brief attendance note which records no more than that he was again advised not to attend the Home Office interview without representation; and that he said he would let them know whether he would be attending. The Claimants appear to accept that they gave him no substantive advice about the issues relevant to his asylum claim, and in particular about the need now to rely entirely on any current risk of persecution if he were returned rather than on historic risks which had ceased to be relevant: they say that it was unnecessary to do so if he was not going to be attending the interview. Quite what Mr. Mohammed says was said is less clear: see below.
5. Notwithstanding the Claimants' advice, Mr Mohammed attended the Home Office interview on 1^st July 2004. It appears that at that interview he explained only the circumstances why he had originally left Afghanistan and said nothing about any current risk. His claim was refused, as was a subsequent appeal to an Immigration Adjudicator. In his complaint to the Law Society, Mr Mohammed said that his failure to say anything about any current risk to him if he were to be returned to Afghanistan was the result of the advice he had been given by the Claimant on 21^st June. He said that he had been told that "it would be meaningless if I told about my problem that I am facing now at Home Office interview because 99.9 per cent of people are being refused by Home Office no matter if they have problem or not". It appears that he said something similar to the Immigration Adjudicator, although according to the judgment he was not consistent about this: at one point he appears to have told the Adjudicator (consistently with the terms of his subsequent complaint) that he had been advised in terms not to mention fears about persecution by the new regime, but at another point he apparently said only that he had been given no substantive advice beyond the advice not to attend the Home Office interview. However, on neither version was he saying that he had been given any positive advice that it was crucial to explain his fears about persecution by the new regime.
6. The material which was initially made available to the Law Society about the advice given to Mr Mohammed on 21^st June 2004 included the attendance note, together with Mr Mohammed's complaint and the judgment of the Immigration Adjudicator – the effect of which I have given above. In accordance with the standard procedure for complaints under the scheme, that material was incorporated in a report to the Law Society Adjudicator compiled by a caseworker. The caseworker's report, dated November 2006, was sent to the Claimants in order to obtain their comments before it was submitted to the Adjudicator. It appears that the Claimants submitted a response dated 10^th January 2007. I have not been supplied with a copy of that response by either party, but - as will appear from the Adjudicator's findings which I set out below – it is clear that it added nothing of substance to the account of what advice was given.
7. The Law Society Adjudicator held that the advice given to Mr Mohammed at the interview on 21^st June 2004 was inadequate. He said, at para. 6.5 of his decision:

It seems to me that in eighteen minutes Mr Mohammed could have been given more advice about the up-to-date situation in Afghanistan and his prospects of success.

And at para. 6.9 he said this:

There is no doubt that the advice received from Azghar & Co. at the meeting on 21 June was inadequate in that it did not explain to Mr Mohammed what issues he ought to have put forward. Of enormous relevance was the fact that the Taliban was no longer in power. Mr Azghar has had the opportunity to submit evidence in support of any arguments which he might wish me to consider regarding the lack of advice in connection with any service issue. He has not done so, and accordingly I must reach the conclusion that, on the papers before me, he had failed to demonstrate that he gave adequate advice.

He awarded Mr Mohammed £200 by way of compensation and directed that the Claimant pay a further £200 by way of costs to the Legal Complaints Service of the Law Society. Formally the finding was of inadequate professional services in that the Claimants did not give Mr Mohammed adequate advice about attending the Home Office interview and what he should disclose at that interview. A number of other complaints arising out of the advice to Mr Mohammed, and in particular complaints of professional misconduct, were dismissed.

8. Mr Ahmed submits that the Law Society Adjudicator's conclusion was irrational. He submits that in circumstances where the Claimants were clearly advising Mr Mohammed not to attend the Home Office interview, it was unnecessary and inappropriate that any substantive advice, and in particular advice about what to say at the interview, should be given. As Mr Asghar himself succinctly put it in his initial response to Mr Mohammed's complaint, dated 3^rd May 2005:

If Mr Mohammed had told us that he was intending on going to his interview, we would have explained to him that his statement was taken at a time when the Taliban were in power and that, as the Taliban were no longer in power, he needed to explain why his life was now in danger.

(That is not in fact quite accurate, because the statement was taken after the fall of the Taliban; but the essential point is that the Claimants would have given appropriate advice about what to say at the interview if Mr Mohammed had told them that he was intending to attend notwithstanding their contrary advice.)

9. I see the point; but the question is whether it is so self-evidently right that the Adjudicator was acting irrationally in making the criticism that he did. I do not believe that that is arguable. What a solicitor should reasonably have said in the circumstances of the meeting of 21^st June 2004 is a matter for the judgment of the Adjudicator, who constitutes a specialist tribunal with whose views this Court should be very slow to interfere. In my judgment it was perfectly legitimate for him to find, in the state of the evidence as it was before him, that it was not enough for the Claimants simply to advise Mr Mohammed not to attend the interview and that, even if that was the primary advice, it was necessary to give some substantive advice about the strengths and weaknesses of his claim which would be relevant in the event that he decided to attend the interview. Such a conclusion seems to me rational and legitimate.
10. Mr Ahmed also submitted – and this was in fact the primary point in the Claimants' original Grounds – that it was perfectly plain that they had previously addressed with Mr Mohammed the importance of dealing with circumstances following the fall of the Taliban. His original statement had expressly included the passage to which I have referred above alleging a risk from the Northern Alliance regime. That may be so, but if the Adjudicator's criticism is otherwise valid, it is no answer to say that Mr Mohammed should have understood the position because of advice which he had been given two years previously (which would in any event have required reconsideration in the light of developments in the intervening period). What, on the Adjudicator's finding, Mr Mohammed was entitled to receive was guidance as to his position in the circumstances as they stood at June 2004 and in the light of the fact that a Home Office decision was now imminent: advice simply not to attend the Home Office interview was inadequate.
11. I am therefore not prepared to give permission to apply for judicial review in this case.

CO/2886/2007: Mr Mohamadi

12. Mr Mohamadi was also an Afghan asylum-seeker. Until June 2004 the Claimants acted for him in connection with his asylum claim. In that month he instructed a different firm of solicitors, Halliday Reeves, and subsequently Ben Hoare Bell, who made (as already mentioned) the eventual complaint against the Claimants. A number of complaints were before the Adjudicator, but the only finding which he made against the Claimants was a finding of inadequate professional services, as follows:

I find that the service provided in this case was not of the quality which is reasonable to expect of a Solicitor because:-

5.1 They took inadequate instructions from their client or failed to advise Mr Mohamadi that the absence of detail would materially effect [sic] his application.

5.2 They did not advise Mr Mohamadi about the refusal of his asylum case and his right of appeal.

13. In their Claim Form the Claimants challenge the entirety of the Adjudicator's finding of inadequate professional services. However, their specific Grounds relate only to the second finding (5.2), i.e. of the failure to advise Mr Mohamadi about the refusal of his asylum case. This was pointed out in the Law Society's Summary Grounds of Defence. In a document headed "Reply to Acknowledgment of Service" the Claimants appear to deny that the Adjudicator made any other findings against them, but that is patently not correct. It follows that even if the Adjudicator's second finding were quashed the first factual finding (5.1) would remain, though it might be a nice question where that left the finding of inadequate professional services and the awards of compensation and costs.
14. The refusal of Mr Mohamadi's asylum claim, of which the Claimants are said at para. 5.2 to have failed to notify him, was contained in a letter from the Home Office dated 30^th July 2004. The Adjudicator's decision involves a finding (a) that the letter had been sent to the Claimants (and received by them) and (b) that they failed to pass on its contents. As to (a), rather surprisingly, there appears to be no indication on the letter itself showing to whom the Home Office sent (or intended to send) it: I have only been supplied with the first page, but in the space above the salutation, where one might expect to find the address of the applicant or his representatives, there only appears Mr Mohamadi's name. The position would nevertheless have been reasonably clear if it was known whether at the material time the Claimants were still acting for Mr Mohamadi or whether they had already been replaced by Halliday Reeves: if they were still acting, it is reasonable to assume, absent any evidence to the contrary, that the letter was indeed sent to them – but if not, not. However, the Adjudicator had not been given - either in the initial complaint from Ben Hoare Bell or subsequently by the Claimants themselves - any information which established when the Claimants ceased to act. He said at para 6.1 of his Decision:

It is an accepted fact that Asghar & Co. passed their file to another firm of Solicitors, Halliday Reeves, at some stage. I have not actually been told by anyone at what point the file was passed to Halliday Reeves but it appears from the papers before me that they took a very detailed statement from Mr Mohamadi early in 2005.

15. In the absence of any clear information on that point, the Adjudicator had to do the best he could on the material which he had. This consisted of the caseworker's report and the Claimants' comments on it. As to the former, the position was summarised at para. 5.8 as follows:

It is for the Adjudicator to consider whether or not Asghar & Co. had informed Mr Mohamadi about the refusal of his asylum case and his Right of Appeal. When considering this issue the Adjudication Panel is asked to note the following:

(i) that Mr Mohamadi attended his Home Office interview on 21 June 2004

(ii) that the Home Office refused his claim for asylum by letter dated 30 July 2004

(iii) that Asghar & Co. have been unable to confirm whether or not Mr Mohamadi had been advised of his refusal of asylum. Asghar & Co. have tried to obtain the full file of papers from Halliday Reeves Solicitors but when they received the papers, the file appeared to be incomplete.

In their comments on that paragraph of the summary the Claimants said this:

Obviously, because we do not have the full file, we cannot comment on this. However, our firm's invariable policy is always to submit an appeal soon as the decision is received by our office and we then ask the client to attend our office to discuss. This is done in every case. The reason why we always lodge appeals in such circumstances is because of the short time within which it is permissible (clients only have 10 days to appeal, are often dispersed all over the UK, they often do not understand the decision letters confirming that their application has been refused, they have money problems in attending on us promptly, and so on). To write to clients and wait for instructions before appealing will in many cases result in the opportunity being lost (or prejudiced) through no fault of the client. No prejudice is served [sic] if the appeals are lodged and subsequently abandoned, if that is the course which we are later instructed to take. Having put in the appeal we then always write to the client asking him or her to attend our offices urgently so that we can go through the refusal letter and see whether or not the client qualifies for CLR. We know other firms who do not lodge appeals in such an automatic fashion and wait for specific instructions. In many cases in consequence of that practice we have dealt with matters where appeals have been lodged out of time by other firms. Again, this is, to a degree, speculation as the file is not complete. The actual fault here lies with Ben Hoare Bell Solicitors. The file that was sent to them was clearly missing attendance notes and other records. The least they should have done was contacted us and ascertained whether or not there were other file records including attendance notes before making a complaint. You task us with obtaining the file (by implication). This is your investigation; have you made any attempt to obtain the missing papers from the firm to whom we sent it, Halliday Reeves ? Or invited the complainant firm to make that request ? Halliday Reeves has not responded to our correspondence. They would have been more likely to have responded to yours. If you had asked us for any relevant consent (if you need it) we would have given it.

16. Against that background, the Adjudicator made the following finding:

I turn now to the second of my findings, namely that the firm has not notified Mr Mohamadi of the outcome of the Home Office Application. In the initial complaint, Ben Hoare Bell said that it was not clear to whom the Home Office determination had been sent. Mr Asghar has recovered his file of papers and does not maintain that the Home Office determination is not on that file. I therefore assume that it is. His argument is that, in the absence of the whole file, he cannot say whether Mr Mohamadi was informed by them about the appeal and he goes into general comments about what his firm habitually does, namely lodging an immediate appeal and inviting the client to discuss whether they should proceed with that. It would have greatly assisted Mr Asghar if he had retained a copy of this file before passing it to Halliday Reeves but I must conclude that there can be no reason at all for Halliday Reeves to have removed such a letter from the file if indeed Mr Asghar's firm had written to Mr Mohamadi to notify him of the outcome. Mr Asghar has been unable to substantiate his argument by production of evidence. In the circumstances I have made this finding against him.

17. Since the decision, in a letter to the Law Society dated 16^th February 2007 they have produced a copy of a letter from themselves to Halliday Reeves dated 29^th June 2004 sending them Mr Mohamadi's file pursuant to a request dated 17^th June 2004. Mr Ahmed submits, and I accept, that I can infer from that letter that the Claimants had ceased to be instructed prior to that date and that the letter thus answers the question which, as the Adjudicator expressly noted (see para. 14 above), was unanswered in the material before him. I also accept that it means that in all probability the Home Office never sent the letter of 30^th July 2004 to the Claimants, since either the Claimants themselves or Halliday Reeves would have notified them of the change. If the Adjudicator had seen this letter, it is most unlikely that he would have made the finding that he did at para. 5.2. But that of course does not mean that his decision was wrong in law. He could only decide the case on the basis of the material provided to him. Mr Ahmed was unable to give me any clear explanation of how and when the letter had been found and why it had not been produced to the Adjudicator prior to his decision: in their letter of 16^th February 2007 the Claimants say simply that they "have looked again at the file". It is hard to believe that they could not have produced the letter earlier if they had thought about it properly; but even if they were indeed faultless I do not see how the Adjudicator's decision can be impugned on the basis of after-acquired information. No attempt was made by Mr Ahmed to bring this case within any of the exceptional circumstances considered in E v Secretary of State for the Home Department [2004] 1 QB 1044. In their letter of 16^th February 2007 the Claimants invited the Law Society to quash the decision of the Adjudicator on the basis that it had now been shown to have been wrong; but the challenge as formulated in the Claim Form is explicitly to the Adjudicator's decision and not to any subsequent failure by the Law Society to quash it, and I have heard no submissions as to whether it has the power to do so.
18. Mr Ahmed did, however, also make submissions attacking the soundness of the Adjudicator's reasoning on the basis of the material before him. These were essentially twofold. First, he submitted that the Adjudicator was not entitled to "assume" that the Claimants had received the Home Office letter on the basis simply of their failure to say that it was not in their original file as retrieved from Halliday Reeves. Secondly – though this point only emerged in the course of the hearing before me - he relied on a passage in the original letter of complaint from Ben Hoare Bell in which they reproduce an extract from the notes taken by the Home Office officials at Mr Mohamadi's interview on 21 June 2004. These read:

Applicant advised of changing Solicitors. Advised previous sols Asghar and Co. did not write in the statement exactly why happened to him.

He submitted that if the Adjudicator had focused on that passage he would have realised that the Home Office knew on 21^st June 2004 that the Claimants were no longer acting for Mr Mohamadi and would inevitably have drawn the conclusion that it was very unlikely that the subsequent refusal letter had been addressed to them.

19. In my view both points are arguable. Ms Stopps submitted, as regards the first, that it is necessary to understand the Adjudicator's reasoning in the light of the submissions as made to him, which at least arguably proceed on the tacit assumption that they had received the letter; and, as regards the second, that it cannot be right to criticise the Adjudicator for overlooking a point which the Claimants themselves failed to make. Those are fair points, and it is certainly true that the Claimants' diffuse and somewhat rhetorical comments on the caseworker's report did not assist the Adjudicator by attempting any kind of careful factual analysis. But I am not prepared to say that they constitute so complete an answer to the Claimants' case that I should refuse permission; and I am, frankly, willing to give the Claimants the benefit of any doubt in a case where it now appears that the Adjudicator did, however venially, make a wrong finding of fact.
20. I will accordingly give the Claimants permission to apply for judicial review; and, for the avoidance of doubt, I will allow all three points to be pursued even though, as I have explained, I do not at present believe that the point based on after-acquired information is arguable. But I very much hope that it may be possible for this matter to be resolved between the parties without the need for a final hearing. I have, as I have said, not been addressed on the Society's power to quash a decision which has subsequently been shown to be based on a mistaken factual basis; but I would hope either that they can be satisfied that such a power exists, or that they will be prepared to take such other steps as may be open to them formally to record that they now recognise the finding to have been made in error. The Claimants would be well-advised to look favourably on a compromise, given (a) that there is no certainty that their challenge will eventually succeed; (b) that the error into which the Adjudicator fell was wholly or mainly their own fault for not drawing the right materials to his attention; and (c ) that the finding at para. 5.1 cannot be impugned. Although damages are claimed in the Claim Form, there is no basis on which they could be awarded.
21. MR JUSTICE UNDERHILL: For the reasons given in the written judgment, which I hand down, I give permission to apply for judicial review in CO/2886/2007 and refuse it in CO/2885/2007.
22. Miss Stopps, I gather you have handed up a consent order? I see what you have very sensibly done, if I may say so. You have taken the hint in my judgment and agree that the order should be quashed.
23. MISS STOPPS: Effectively this will dispose of both applications and the Society has agreed to reconsider the decision in respect of CO/2886/2007. You will see that the parties are agreed that there will be no order for costs on both.
24. MR JUSTICE UNDERHILL: Given the substantive points which I have decided, it seems to me the most sensible outcome and the parties are to be congratulated for having dealt with it in that way. Thank you.