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 WC2A 2LL
		27 May 2011

1. MR JUSTICE LINDBLOM: For reasons which will become apparent, I do not propose at this stage to provide a full judgment.
2. This matter has proceeded today on the basis that the Ombudsman's application will be adjourned to be restored before me on the first available date after 28 days, on undertakings given by the defendant, Mr Young. Those undertakings are in these terms:

"1 To take all reasonable steps to search for and locate but not to take possession of all the outstanding files and documents referred to in the Section 147 notice dated 14 January 2011.

2 To take all reasonable steps to co-operate with and to assist the claimant in further investigating Mr and Mrs Weston's complaint and any other complaint made about the defendant to the Ombudsman.

3 To notify the claimant forthwith of any change of address, telephone number or e-mail address."

On those undertakings the Ombudsman is content to depend for the moment.

3. It seems to me that the sensible way forward is to allow the defendant the opportunity of co-operating in efforts to ensure that the files relating to Mr and Mrs Weston's employment case are found and dealt with as soon as they can be. I do not lose sight of the fact that the genesis of Mr and Mrs Weston's complaint lay, in part at least, in the defendant's alleged failure to make those files available to them when they sought them. I reach no concluded view today about that allegation, but, in the light of evidence produced by the defendant himself, it seems there may be some force in it.
4. I proceed in this way today on submissions which, as I understand the defendant's position, are not controversial, those submissions having been refined now in a supplementary skeleton argument provided by Mr Philip Havers QC on behalf of the Ombudsman. In those submissions Mr Havers QC has identified for the court six principal issues.
5. I will at this stage make provisional observations on some of the issues.
6. The first issue identified by Mr Havers QC is this: should the court enquire into the case? It is submitted that the court should do so. That submission is not, as I understand it, in dispute. It is clear to me that this is a case of the kind into which, in principle, the court should be prepared to enquire. I say no more about this issue for the moment.
7. I come then to the second issue: should the court deal with the defendant? Section 149

(4) of the Legal Services Act 2007 provides that if the court is satisfied that a defaulter has failed without reasonable excuse to comply with a section 147 notice, it may deal with him as if he were in contempt. The Ombudsman contends that the court ought now to deal with the defendant as if he were in contempt because not only has he failed to comply with the section 147 notice, he has also failed to provide any reasonable excuse for not having done so. This, it is said, is acknowledged by the defendant in paragraph 25 (b) of his affidavit sworn on 23 May 2011. In that paragraph the defendant deposes as follows:

"I summarise my position as follows:

(a) I should have written to the appellant [that must mean the Ombudsman as claimant in these proceedings] to advise him I considered the Westons' complaint had been dealt with at the time as it related to the employment file and the Jubilee claim. I apologise for not so doing. This was remiss and inefficient. It was not intended to be rude or dismissive of the Ombudsman. I genuinely did and do consider that at that time Mr and Mrs Weston were happy to continue as we had done whilst I was at CMG Law;

(b) I sincerely apologise for not replying to the formal 147 notice. This was borne out of the fact that I considered the substantive nature of the complaint had been addressed. I should still have formally replied and regret not having done so;

(c) I sincerely apologise for not filing the acknowledgement and attending court on 10 May. This was an oversight due to the pressure I have been under which has been most exacting. Moving house also contributed to that oversight;

(d) I confirm that I will co-operate with this matter and any other matter that the appellant is currently seeking to resolve."

Sub-paragraph 25 (d) reiterates what the defendant had already stated in paragraph 24 of his affidavit. He indicates his preparedness to co-operate in the Ombudsman's process, and indeed to co-operate in the Ombudsman's investigation of any other complaint relating to him.

8. The Ombudsman's position is that what the defendant has said in paragraph 25 of his affidavit had to be said. It is submitted on behalf of the Ombudsman that even if the defendant had considered that the substantive nature of Mr and Mrs Weston's complaint had been addressed, a proposition with which Mr and Mrs Weston themselves disagree, that could not amount to a reasonable excuse for not complying with the section 147 notice. Whilst expressing at this stage only a provisional view on this issue, that submission seems to me to hold some force. Thus, it is submitted, the court should now deal with the defendant in the manner provided for in section 149 (4), that is to say as if he were in contempt. As I understand it, this proposition in itself is not in dispute.
9. The third issue identified by Mr Havers QC is this: how should the court deal with the defendant? A number of factors have been identified, which, it is said, justify the making of an appropriate order. On the first occasion when the matter was before me the Ombudsman was seeking an order of committal. The factors underlying the submissions then made are still relied upon. However, as Mr Rich's second affidavit on behalf of the Ombudsman points out (in paragraph 49), it is clear that the defendant does now seem to appreciate the seriousness of the situation he is in and is offering genuinely to assist in resolving it. He has also apologised.
10. But the Ombudsman also points to the history of the defendant's failure to co-operate in the investigation, and it has been suggested that the court should at this stage take appropriate steps to ensure that from now on the defendant will co-operate. It is pointed out in paragraph 50 of Mr Rich's second affidavit that the Ombudsman has - or has had - some ten cases involving complaints about the defendant since the scheme was launched in October 2010. Mr Rich emphasises - and this is reflected in the undertakings to which I have already referred - the importance of the defendant keeping the Ombudsman informed of his address, telephone number and e-mail address. Mr Rich contends, and I acknowledge, that such co-operation is essential if the missing Employment Tribunal papers are to be found. The purpose of finding those papers, it should be emphasised, is to enable Mr and Mrs Weston's case in front of the tribunal to be revived if it can be. Natually, this would be a matter for the tribunal itself in due course.
11. Two possible ways in which the court could assist in the process at this stage have been identified. The first is the imposition of a suspended prison sentence, the sentence being suspended on terms. The other - which is the course that I believe is the correct one, at this stage at least - is to proceed on the basis of undertakings provided by the defendant. The advantage of proceeding in this way is that it will allow the court to keep the situation under review without at this stage reaching a final conclusion as to the outcome of the Ombudsman's application. The approach must be pragmatic.
12. I turn finally to the more general question of guidance, which is the sixth issue identified by Mr Havers QC. I have been encouraged to indicate generally that a failure without reasonable excuse on the part of a defaulter to comply with the requirement of a section 147 notice is likely to attract the sanction of the court. At this stage, while bearing in mind that each case of this type will necessarily turn in the end on its own facts, I am prepared, at least provisionally, to endorse that proposition. It is not appropriate in my view to indicate in general terms what is referred to in Mr Havers QC's submissions as the likely tariff. The court will be astute to ensure that in proceedings such as these the practical steps which are necessary to make the Ombudsman's proceedings effective are taken in a timely and effective way. That clearly can be stated as a general concept. At this stage I say no more than that. This is a matter which it is likely I shall have to revisit if in due course I am called upon to provide a full judgment.
13. I shall now deal with the question of costs. I have before me, Mr Young, a statement of costs for summary assessment which, as I understand it, relates to this and the two previous hearings, the grand total being £11,053. I understood from what you said to me before I adjourned a little earlier that the principle of an award of costs is not resisted. Is that correct?
14. THE DEFENDANT: My Lord.
15. MR JUSTICE LINDBLOM: Do you resist the amount?
16. THE DEFENDANT: No.
17. MR JUSTICE LINDBLOM: In which case I order that the defendant is to pay the claimant its costs of these proceedings thus far, summarily assessed in the sum of £11,053. Have I dealt with everything?
18. MR HAVERS: Your Lordship has, subject just to adding the directions for the next hearing.
19. MR JUSTICE LINDBLOM: The directions for the next hearing will be as I have already indicated, but I now repeat for the record that the matter will be listed to be heard by me on the first available date after 28 days from today. The undertakings to which I have referred will be recorded in the order. Do you invite me, Mr Havers, to include in the order liberty to apply, or not?
20. MR HAVERS: If your Lordship would in case there are any difficulties which arise.
21. MR JUSTICE LINDBLOM: I think that is a safeguard which takes nothing away from the perfectly fair point the defendant made earlier on about the need for a degree of certainty in the timescale.
22. MR HAVERS: That liberty would apply to him.
23. MR JUSTICE LINDBLOM: Of course. Liberty to either party to apply, I will say, on 48 hours' written notice to the other party. I have dealt with costs in the terms which I have already stated.
24. I am grateful to you Mr Havers and I am grateful to you too Mr Young.