England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT (AT MANCHESTER)

		Manchester Civil Justice Centre, 1 Bridge Street West, Manchester M60 9DJ
		7 March 2014

His Honour Judge Stephen Davies:

1. By this claim for judicial review the claimant, a barrister in private practice, challenges a determination of the defendant (to whom I shall for convenience refer as the Legal Ombudsman) made in writing on 10 October 2012. In his determination the Legal Ombudsman had to adjudicate on a complaint made against the claimant by his former client, the interested party Stephen Duffield, who had instructed him directly on a public access basis. He dismissed two substantive complaints, relating to the quality of the advice given by the claimant and the information provided in relation to fee charging, but then proceeded to determine that:

(1) The claimant had failed adequately to deal with the substantive complaints made by Mr Duffield and that he should pay Mr Duffield the sum of £400 as compensation for the distress he had caused him in relation to this head of complaint ("the complaints handling complaint").

(2) The claimant was not entitled to make a claim for £1,200 against Mr Duffield for his outstanding fees. (The Legal Ombudsman had stated in terms, in his subsequent letter dated 17 December 2012, that this was the effect of his determination.)

2. On 8 April 2013 HHJ Pelling, QC, sitting as a Judge of the High Court, granted permission to the claimant to challenge the determination in relation to the outstanding fees, but refused permission in relation to the challenge to the complaints handling complaint determination. In its first detailed grounds of defence dated 15 May 2013 the Legal Ombudsman accepted that the determination in relation to the outstanding fees claim was not one which he was entitled to make, and that his decision to that effect should be quashed, so that issue became no longer a live issue.
3. However the claimant orally renewed his application for permission to challenge the complaints handling complaint determination and on 3 July 2013 King J granted permission on a limited basis as specified in his order.
4. On 15 November 2013 the Legal Ombudsman filed its second detailed grounds of defence dated 8 November 2013, together with written evidence. The claimant filed a detailed skeleton argument prepared by his leading and junior counsel on 28 November 2013. By a consent order approved by this court on 22 January 2014 the Legal Ombudsman was given permission to rely on its second detailed grounds and written evidence, even though filed outside the time ordered by King J, and the claimant was given permission to amend his grounds so that his detailed skeleton should stand as his basis for seeking judicial review. The Legal Ombudsman has filed a skeleton argument in response, and on 6 February 2014 I heard oral submissions, supplemented by closing written submissions on 2 of the 4 grounds argued before me, received on 12 February and 17 February 2014 respectively.
5. In short, the grounds of challenge are:

(1) That the determination that the claimant's "prolonged refusal" to respond to Mr Duffield's complaint without first being provided with further documentation was "unnecessary and obstructive" and amounted to "poor service", was Wednesbury unreasonable ("the refusal to respond issue").

(2) That the determination that the claimant's final response to Mr Duffield's complaint, contained in a letter sent on 4 April 2012 ("the response letter"), was "offensive and unprofessional in tone" and included "repeated allegations of illegality and criminality" and thus also amounted to poor service, was also Wednesbury unreasonable ("the response letter issue").

(3) That the process leading up to the making of the complaints handling complaint determination was unfair and the decision taken without jurisdiction, because: (i) of the circumstances in which the response letter came to be sent; (ii) the determination concerned a matter about which no complaint had been made by Mr Duffield or communicated by the defendant to the claimant; (iii) the claimant had been given no opportunity to address the matter under his internal complaints procedure; (iv) the claimant had been given no proper opportunity to make representations on the matter ("the unfairness / jurisdiction issue").

(4) That the defendant's process was tainted by actual or apparent bias, so that the determination made under that process was neither fair nor reasonable as required by the relevant statutory provision ("the bias issue").

6. In summary, my conclusion is that all four grounds fail and, save to the extent admitted in relation to the outstanding fees claim, the claim must be dismissed. I am quite satisfied that the decisions in relation to the refusal to respond issue and the response letter issue cannot be impugned as Wednesbury unreasonable. I am also satisfied that the Legal Ombudsman had jurisdiction to decide on these matters. Whilst I accept that the Legal Ombudsman could and should have made it clear to the claimant at an earlier stage that it was treating the claimant's initial failure to provide a substantive response and the content of his substantive response as part of the complaint made by Mr Duffield, so as to give him an earlier opportunity to respond to those matters, I am satisfied that any failure in that respect was cured by the way in which the Legal Ombudsman made this clear to the claimant before a final determination was issued, and after the claimant had been afforded and had taken the opportunity to make submissions and/or adduce evidence in relation to those matters. Whilst I also accept that there was some delay in dealing substantively with a request by the claimant to have the complaint summarily dismissed, I am not satisfied that this delay, or any other of the matters complained of by the claimant, rendered the decision making process as a whole unfair, or otherwise affords the claimant any ground for redress by way of judicial review. Insofar as the claimant has permission to argue the bias issue, whilst I accept that the wording used by the Deputy Chief Legal Ombudsman in relation to the claimant in two internal e-mails was unfortunate, I reject the allegation of actual or apparent bias.
7. My reasons for reaching that conclusion are set out under the following section headings:

(1) The statutory framework [paragraphs 8 – 17].

(2) The circumstances leading up to the complaint [paragraphs 18 – 26].

(3) The claimant's handling of and detailed response to the complaint [paragraphs 27 – 37].

(4) The refusal to respond issue [paragraphs 38 – 42].

(5) The response letter issue [paragraphs 43 – 52].

(6) The defendant's investigation process [paragraphs 53 – 67].

(7) The unfairness / jurisdiction issue [paragraphs 68 – 85].

(8) The bias issue [paragraphs 86 – 93].

(1) The statutory framework

8. The legal complaints procedure which the defendant is responsible for administering, known as the Legal Ombudsman Scheme ("the scheme"), was created by Part 6 of the Legal Services Act 2007 ("the Act"), and is subject to scheme rules made thereunder ("the rules").
9. The objective of the scheme is to enable complaints to be resolved quickly and with minimum formality by an independent person (s.113(1)). Complaints are to be determined under the scheme by reference to what is in the opinion of the Legal Ombudsman fair and reasonable in all the circumstances of the case (s.137(1)). In determining that question the Legal Ombudsman will take into account, but is not bound by, the decision a court might make, any relevant code of conduct, and what he considers to be good practice (rule 5.37). It has been held in the context of a similar regime that such a provision is compliant with the European Convention on Human Rights ("ECHR"), and that the decision is one for the Ombudsman and not for the court, so that it may only be challenged on traditional judicial review grounds (Heather Moor & Edgecomb v Financial Ombudsman Service [2008] EWCA Civ 642).
10. The determination must be in the form of a written statement which gives reasons (s.140(1)-(2)). It enables a complainant to obtain redress of one or more of the kinds specified in s.137(2), including an apology and payment of compensation (subject to a total financial upper limit, currently £50,000 (s.138)). If accepted by the complainant it is final and binding on both him and the lawyer (s.140(4)). It may be enforced by the court (s.141). It is not, however, a disciplinary process, and no disciplinary action may be taken by the Legal Ombudsman (s.113(2)), but if the Legal Ombudsman believes that the conduct of the lawyer is such that the approved regulator (in this case, the Bar Standards Board) should consider whether or not to take action he must report the matter to the regulator (s.143).
11. Particularly relevant to this case is s.126, which provides that, save in specified circumstances provided by the rules, the Legal Ombudsman has no jurisdiction over a complaint if the complainant has not first used the lawyer's complaints procedures. Rule 4.2 allows a complainant to use the Legal Ombudsman where: (a) the complaint has not been resolved to his satisfaction within 8 weeks of being made to the lawyer; (b) the Legal Ombudsman considers there are exceptional circumstances to consider it sooner or without it having been made first to the lawyer; or (c) the Legal Ombudsman considers that in-house resolution is not possible due to irretrievable breakdown of the relationship.
12. Another provision relevant to this case is s.147, which permits the Legal Ombudsman to require a party to produce documents or information which he considers to be necessary to determine the complaint.
13. The scheme rules are required to set out the procedure for making complaints and their investigation, consideration and determination (s.133(1)). As relevant to this case, and in summary, they provide as follows:

(1) A complaint is defined as "an oral or written expression of dissatisfaction" falling within chapter 2 of the rules (rule 1.6).

(2) The complaint must relate to an act or omission relating to services provided by the lawyer to the complainant (rules 2.6 & 2.8).

(3) The Legal Ombudsman is entitled, but not obliged, to require the complainant to complete its complaint form (rule 5.1).

(4) The lawyer may claim that the complaint should be dismissed and, if so, the parties should be allowed to make representations before a decision is made (rule 5.4). Under rule 5.7 the Legal Ombudsman is entitled but not obliged to dismiss a complaint if in his opinion one of a number of stated grounds apply, the first of which is that the claim does not have any reasonable prospect of success or is frivolous or vexatious.

(5) The Legal Ombudsman will try to resolve complaints at the earliest possible stage, through informal resolution if appropriate (rule 5.17). Otherwise the Legal Ombudsman will undertake an investigation. At this stage both parties will have the opportunity to make representations before a provisional assessment (known as a Recommendation Report) is provided. If either party indicates disagreement with the Recommendation Report within a specified time limit then the Legal Ombudsman will proceed to a final determination (rule 5.19).

14. In a very recent decision, R (Crawford) v The Legal Ombudsman [2014] EWHC 182 (Admin), Popplewell J was also required to consider the Legal Ombudsman scheme. Having referred to the relevant provisions of the Act and the scheme rules he said this, with which I respectfully agree:

"20. These provisions illustrate two important aspects of the scheme:

i) It is intended to resolve complaints swiftly and informally. In order to achieve this, the Ombudsman will often have to do the best he can on limited material and without hearing detailed evidence. To assist in these objectives, he can rely on evidence which would not be admissible in court, and may draw adverse inferences from failure to provide information or documents.

ii) In resolving complaints by reference to the statutory criterion of what is fair and reasonable in the circumstances, the Ombudsman is afforded a considerable latitude of discretion. The test is what "in his opinion" is fair and reasonable. He is not bound by the Approved Regulator's code of conduct, although he must take account of it. He may apply his own standards of what he considers to have been good practice at the time.

21. In exercising powers of review, this court does not put itself in the position of the Ombudsman and test the reasonableness of the decision against the decision the Court would make. It does not review the merits of the decision as if it were exercising the statutory powers itself. To do so would be to subvert the intention of Parliament in vesting the Ombudsman with the function of administering the scheme. His decision may only be overturned as unreasonable if it is unreasonable in the Wednesbury sense (Associated Provincial Picture House Ltd v Wednesbury Corporation [1948] 1 KB 223). There are a number of different formulations of this well-known and oft-applied test. A common modern formulation is that the decision must be outside the range of reasonable responses open to the decision maker (see e.g. Boddington v British Transport Police [1992] 2 AC 143 at 175H per Lord Steyn). This is a high threshold, particularly in the context of a scheme intended to resolve complaints swiftly and informally in which the decision maker is afforded a wide discretion to do what he thinks is fair and reasonable in all the circumstances…

…

25. Decisions of the Legal Ombudsman are to be read with a degree of benevolence (see R (Siborurema) v Office for the Independent Adjudicator [2007] EWCA Civ 1365, [2008] ELR 209 at [79]) and should not be construed as if they were statutes or judgments, nor subjected to pedantic exegesis (see Osmani v Camden LBC [2005] HLR 325 at [38(9)] per Auld LJ)…"

15. Mr Hendy QC and Mr Beaumont for the claimant submitted that the Legal Ombudsman when exercising his functions under the scheme is subject to the overriding obligation to act fairly. They referred me to a number of authorities to make good that submission, with which Mr Cornwell for the defendant did not quarrel. They referred me to Lord Mustill's observations in R v SSHD ex p Doody [1994] 1 AC 531 about the obligation to act fairly, and to what Lord Steyn said in R v Home Secretary ex p Pierson [1998] AC 539 about the rule of law enforcing minimum standards of fairness, both substantive and procedural. I did not understand them to suggest, however, that there was any conflict between the procedural rules contained in the Act and the scheme rules and this overriding obligation to act fairly, and I do not myself discern any.
16. They also referred me to the decision of Collins J in Green v Financial Ombudsman Service [2012] EWHC 1253 (Admin) where, in a case involving a challenge to a decision of the financial ombudsman on Wednesbury grounds, he said this:

"11. The discretion is wide but must be exercised reasonably. The decision can be challenged by judicial review but in most cases (assuming no procedural unfairness or failure to follow particular law) that will require any challenger to a decision to establish that it was irrational in Wednesbury terms. Mr Moffett submitted, relying on dicta in immigration cases concerning challenges to decisions of tribunals, that the hurdle to be surmounted to establish irrationality was set very high. Certainly where the decision maker has an expertise and is given a wide discretion, it will inevitably be more difficult to establish that a particular decision was irrational. That is not because the hurdle is set at a higher level but because the court must respect the expertise and the powers expressly conferred by Parliament. But where no particular expertise is required to reach a conclusion of fact and that conclusion is challenged as being irrational, there is no reason to approach the matter in any different way from that generally applied in judicial review claims. That is material since, as will become clear, there are two grounds which Elias LJ permitted to be argued. The first, broadly speaking, was a challenge to the ombudsman's decision that the advice given was defective and the second was that because of that defective advice the Gunners entered into the arrangement which led to financial loss. The ombudsman decided that he was satisfied on the balance of probabilities that if the Gunners had received the advice they ought to have received they would not have entered into the arrangement. That conclusion depended on an assessment of the evidence before him and did not depend on expertise in financial affairs or what advice was required to comply with an adviser's obligations. It was an issue of causation and the width of his discretion and considerations of what was fair or reasonable could play no part in reaching his conclusions of fact."

17. That is relevant because in this case they submit that the Legal Ombudsman's analysis of the response letter and, in particular, the question as to whether or not it included "repeated allegations of illegality and criminality", is not one on which any particular expertise was required, so that the court should be prepared to intervene if satisfied that the analysis was outside a range of reasonable analyses of the response letter. I accept this submission, but do not consider that it assists the claimant, for reasons which I shall give.

(2) The circumstances leading up to the complaint

18. The claimant is, as I have said, a barrister in private practice. He specialises in immigration law, practising as a sole practitioner from chambers in Salford, Greater Manchester.
19. Mr Duffield is a businessman, with business interests in Eastern Europe, who met a woman, Olga Kucherova, who is now his wife, whilst visiting the Ukraine in February 2011. They developed a relationship and at some point she applied to the Entry Clearance Officer ("ECO") in Kiev for a visa to visit the UK to spend time with him. The ECO, in a decision dated 20 April 2011, refused her application under paragraph 41 of the Immigration Rules on a number of grounds, including that she had failed to demonstrate a sufficiently close relationship with Mr Duffield as her sponsor. The decision letter concluded by saying that her application did not attract a full right of appeal, but that there was a right of appeal on the basis that the decision was unlawful under s.6 Human Rights Act 1998 as being incompatible with her ECHR rights.
20. Mr Duffield approached the claimant for advice about this refusal and, in an exchange of e-mails on 10 and 11 May 2011, instructed him to advise in relation to appealing against that decision. The claimant's e-mail stated that whilst "there is no normal right of appeal … I can make a right of appeal which will probably get you a hearing", but that the aim was to try to persuade UKBA to change its mind and thus avoid a hearing, by persuading UKBA that its arguments were factually wrong. The claimant made it clear that "meticulous work" was required to support the appeal with "strong cogent documentary evidence".
21. The claimant sent Mr Duffield his client care letter setting out the terms on which he worked, which included reference to his complaints procedure and Mr Duffield's right, if dissatisfied, to complain to the Legal Ombudsman.
22. An appeal was submitted on the basis of this advice. Initially it was considered by way of review by an ECO manager, who rejected it in a decision dated 20 July 2011. It is apparent from that decision that the appeal notice and documentation presented the appeal on the basis that Mr Duffield and Ms Kucherova were in a "close loving relationship" and were relying on their Art 8 rights, but that the manager concluded that there was insufficient evidence to demonstrate that this was engaged or, if it was, that the visa refusal was a disproportionate interference with those rights.
23. However the First-Tier Tribunal (Immigration & Asylum Chamber) decided to admit the appeal, and listed it for hearing on 18 October 2011. In the meantime Mr Duffield and Ms Kucherova decided to marry in August 2011. The claimant sent a letter to Mr Duffield on 25 August 2011 in which he gave reasonably detailed advice as to what would be required to maximise the prospects of a successful appeal, whilst at the same time making it clear that even if unsuccessful the work done could still be used for later applications, and in which he gave an estimate of his fees to undertake that work and present the appeal. It appears from the claimant's subsequent letter of 1 September 2011 that Mr Duffield was undecided as to whether or not to retain the claimant to undertake this work and present the appeal, and that in that letter the claimant gave further advice as to what needed to be done to provide evidence. On 4 September 2011 the claimant apparently rendered a fee note for £1,200 for work done from 4 July 2011 to date, which Mr Duffield did not and to date has still not discharged.
24. It is clear that Mr Duffield was in two minds as to whether to instruct the claimant, to instruct a firm of solicitors and through them counsel, or to present the appeal himself. In his email of 13 October 2011 the claimant warned Mr Duffield that if, as he understood it, the solicitors had obtained little if any new material and were not intending to advance a case based on Art. 8 grounds then the chances of success were reduced "massively". Despite the claimant's urgings Mr Duffield decided not to instruct the claimant; it is not entirely clear whether he instructed the solicitors and through them counsel, or whether he presented the appeal himself. Either way, the appeal hearing was, in short, a disaster. The written decision of Immigration Judge Davies is extremely succinct. It records that in his view there was no valid appeal because there was no evidence before him that Ms Kucherova wished to undertake a family visit within the terms of the relevant regulation at the time of the decision appealed. It appears that the immigration judge must have concluded that the relationship between Mr Duffield and Ms Kucherova as at April 2011 was not such in itself as to confer any right of appeal and that no appeal had been presented to him on Art. 8 grounds.
25. Mr Duffield made the claimant aware of the decision, stating that both he and Ms Kucherova were "in a state of shock, not at the result but in the swift uncompromising manner with which it was delivered". There is some suggestion that the Immigration Judge may have expressed the view that the appeal was always doomed to fail. It is clear that by 22 November 2011 Mr Duffield had concluded that the claimant's initial advice was poor, and had telephoned the Legal Ombudsman to complain. By a letter dated 22 November 2011 the Legal Ombudsman informed him that before it could investigate he needed to make a formal complaint direct to the claimant first. The Legal Ombudsman also notified the claimant that this is what it had done.
26. Accordingly, on 5 December 2011 Mr Duffield wrote a letter of complaint to the claimant. In short, there were two complaints:

(1) That the initial advice to appeal was bad, and the claimant had failed even to suggest making a further visa application with better evidence, with the result that time and money had been wasted.

(2) The claimant was guilty of "profiteering", in that he had initially asked for a substantial sum to prepare for and present the appeal, which he had then reduced substantially on two occasions in an attempt to persuade Mr Duffield to instruct him.

Mr Duffield contended that in consequence he should be entitled to have the fees he had paid the claimant "returned in full".

(3) The claimant's handling of and detailed response to the complaint

27. The claimant did not receive the letter until 30 December 2011 and replied, as the Legal Ombudsman found, by way of a "prompt and courteous" reply on 2 January 2012. In short, he said that he would respond once Mr Duffield had provided him with more information and documentation. As to information, he wanted to know what legal steps had been taken to gain admission by Ms Kucherova to the UK since October 2011 and, in particular, whether they had appealed the Immigration Judge's decision and if so with what result. As to documentation, he sought:

(a) The Immigration Judge's decision;

(b) The documentation put before the Immigration Judge;

(c) Engagement letters and correspondence with the solicitors, including correspondence about their fees and any request for repayment;

(d) Any documentation in relation to any appeal or further application;

(e) A list of Mr Duffield and Ms Kucherova's assets.

28. Before me there was some debate as to whether these categories of information and document were necessary, relevant or reasonably required before the claimant could respond to the complaint. In my view the position is as follows:

(1) It was necessary and relevant to see, and reasonable for the claimant to require, the Immigration Judge's decision, to understand on what basis the appeal had been presented and refused.

(2) It was neither necessary nor relevant to see, nor reasonable to require, a list of Mr Duffield and Ms Kucherova's assets.

(3) The other information and categories of document were potentially relevant and might reasonably have been required, in the sense that they were information and documents which someone in the claimant's position, facing an allegation of negligent advice and a demand for a refund of legal fees, might reasonably consider to be relevant to those issues.

(4) However, it was not necessary for the claimant to see that other material in order to be able to respond to the essential complaints about poor advice and profiteering. If the claimant had accepted that his advice was poor or was willing to discuss compromise, then the claimant would have been entitled in my view to request that further information to determine whether Mr Duffield was entitled to a refund of fees paid.

29. On 20 January 2012 Mr Duffield responded to say that he considered that the key issue was the wrong initial advice, that they did not appeal the Immigration Judge's decision (which he sent) because they believed it would be futile, and that in such circumstances the documentation requested was irrelevant.
30. On 1 February 2012 the claimant responded, noting that Mr Duffield's letter was only postmarked 30 January, and repeating his position that he needed the further information and documentation before he would reply.
31. On 3 February 2012 Mr Duffield replied, providing some further information, but no further documentation, and saying that he believed that the claimant should now have sufficient information to reply.
32. This provoked a rather less temperate response from the claimant, maintaining his position that all of the documents were relevant, and accusing Mr Duffield of "concealing essential documents necessary for me to evaluate the extent of damage you claim my advice caused you".
33. He asked Mr Duffield to confirm that a fair summary of his complaint was that the claimant had given wrong initial advice that there was a right of appeal, which Mr Duffield provided in his letter of 8 March 2012. There was no response from the claimant to that letter, and on 15 March 2012 Mr Duffield contacted the Legal Ombudsman to re-state his complaint.
34. On 15 March 2012 the Legal Ombudsman wrote what is described as a "complaint confirmation" letter to Mr Duffield, summarising its understanding of the complaint and seeking his confirmation that it was correct. Under the section entitled "what the complaint is about" the complaint was made that the advice to appeal had been faulty. Under the section headed "what effect this has had" it was said that 5 months had been wasted and Mr Duffield was out of pocket "in excess of £2,000 in avoidable legal fees". Under the section headed "why are you unhappy with the response" it was said that the claimant had not responded formally "but continually asked for more information" and finally, under the section headed "what would you like us to do" it was said that Mr Duffield was seeking a refund and some compensation for distress and stress.
35. At this point the file was passed to one of the Legal Ombudsman's investigators, a Ms Bhowmick, for her to begin the complaint investigation process. She began by telephoning the claimant on 20 March 2012 and, as is apparent from the transcript of the call, the claimant immediately objected that her involvement was premature because he was entitled to reply to the complaint first, and that he was awaiting further documents from Mr Duffield before doing so.
36. The following day the claimant e-mailed Ms Bhowmick enclosing what it subsequently transpired was an unsent draft letter to Mr Duffield, but which in the covering email the claimant implied he had already sent to Mr Duffield. Rather surprisingly given the tenor of previous correspondence he claimed that he feared for his physical safety at the hands of Mr Duffield and instructed the Legal Ombudsman not to read the letter but to send a copy of Mr Duffield to let him know that it had received a copy. He said: "If I am murdered or incapacitated please pass it on to the police".
37. Ms Bhowmick took the view that it was not for the Legal Ombudsman to send on to Mr Duffield correspondence which the claimant had expressly informed her not to read. Nonetheless it is clear from an internal note made by Ms Bhowmick on 22 March 2012 that before it was subsequently in fact sent to Mr Duffield it had been read and discussed internally, in the mistaken belief that it had already been sent, and it had been concluded that the claimant should be referred to the Bar Standards Board under s.143 in relation to the content of that letter. The letter itself was in fact not sent until 4 April 2012, and I refer to its content in the form in which it was sent. It is a 9 page letter. It needs to be read in full to obtain a true flavour, but for present purposes the most relevant parts are set out as follows (the underlining and bold type are in the original):

"Dear Mr Duffield,

You request monies from me, confirming by your 8 March letter that your claim is as follows: you claim:

i) I gave you "wrong initial advice" that you have a right of appeal, and ii) Mr Davies (your immigration adjudicator) said you don't have a right of appeal.

1. My answer in brief is as follows – you lost nothing because of my advice, and your claim is wholly without merit, frivolous and vexatious. My advice assisted you.

2. You are aware of everything in this letter concerning you already, as, in addition to much of it already being in writing, I have at all stages explained it to you over the phone prior to your complaint to Ombudsman. Your claim is vexatious.

3. You have a) vexatiously refused to provide me with the essential documents I repeatedly requested, and b) vexatiously hurried to complain to Ombudsman, without giving me first an opportunity to answer.

…

BACKGROUND

1. Fraud

2. Fraudulent attempts to gain entry to UK and fraudulent fictitious marriages are both criminal, as you know.

3. It is government policy to stop both, and they are both punished with imprisonment of all those involved, including sponsors and sponsees/suspect "wives". These are very serious issues with very serious consequences, as you know.

4. You and Home Office are aware of attempts by many Eastern European non-EU citizens especially Ukrainians (it being a very poor country) to fraudulently gain entry into UK, and to organise fraudulent fictitious marriages with UK citizens.

5. Your case required meticulous presentation because of such matters.

6. Olga and her (illegal?) attempts to get into UK

7. Your requests for monies arise from advice you sought from me in relation to your attempts to get Olga into UK. In answer to my standard question of when you met her, you wrote to me on 10 May.

8. "We met on the 18^th Feb, I was working in Kiev. We met at the hotel where I was staying".

9. It is difficult to write delicately about this, but you give me no choice. The Kiev ECO knows that women of a certain kind are to be found in Kiev hotels, seeking clients and Western businessmen. Would the ECO or his representative at court or the Immigration Adjudicator allow her entry, if they knew of this? Your case required meticulous presentation because of such matters.

10. After speaking to Olga, you wrote to me on 11 May.

11. "I made a mistake with the date of our meeting – I must be more careful."

12. Were Mr Davies or the HO to know of these matters, they would be worried about fraud. Again, Your case required meticulous presentation because of such matters.

13. Your track record in seeking to get non-EU foreigners in UK

14. You have previously sought, also as a sponsor, to get a foreign non-EU friend into UK, viz your friend Leon's son, Shay Itzcovitz, as a personal favour, and his girlfriend also. Your case required meticulous presentation because of such matters.

15. Why the Home Office might additionally suspect you are under pressure/incentives to get Olga into UK illegally

16. As the managing director of Electrosion, you yourself manufacture engineering equipment of interest to the armed forces of enemies and potential enemies of the UK. You have told me that you have sold a substantial amount of your business to a Ukrainian/Russian investor.

17. Whether or not the Home Office considers truthful your own claims that your marriage to Olga is genuine, it and you are also aware of the honey pot stings organised by Eastern European countries using beautiful local woman to get westerners from NATO countries to disclose industrial secrets and technology.

18. Actual reasons already given by Home Office for rejecting Olga's application, just before you replaced me with your other lawyers

19. Home Office, in its refusal to admit Olga, which has caused your complaint, gave pages of reasons for not admitting her, including never being at her place of work, to the degree they believed it fictitious. Again, your case required meticulous presentation because of such matters.

20. There is a substantial age difference between you and Olga, cultural and language differences, raising questions about the genuine nature of the marriage.

…

42. Your letter is defamatory of me and full of falsities and deliberate serious omissions.

…

i) In four decades of dealing with people's claims (that's what we barristers do all the time) I've never seen one as unmeritorious as yours.

…

cc) Vexatious unfairness by you in your haste to seek monies from me

dd) You copied your defamatory letters full of falsities and deliberate serious omissions to the Legal Ombudsman, prior to waiting for a reply from me (contrary to what He advised?) That is unfair.

ee) Conclusion

ff) On all the evidence before me, your complaint is without any basis, frivolous and vexatious. Indeed you owe me money, not vice-versa.

gg) You surely realise the vexatious injustice and unfairness of a complaint, when you refuse to back it up with essential evidence that you have at your fingertips, but which you insist on repeatedly withholding.

hh) If you are unhappy with this reply to you, do let me know why. I will then consider the matter further.

ii) I ask you to withdraw your formal complaint forthwith. If it goes further, the consequences for you and Olga are unforeseeable."

(4) The refusal to respond issue

38. In accordance with the procedure referred to above, and after a great deal of exchanges to which I shall have to return later, Ms Bhowmick produced her Recommendation Report dated 6 September 2012 in which, having referred to the correspondence passing between Mr Duffield and the claimant in relation to the complaint, she concluded as follows:

"However, I am of the opinion that Mr Duffield's complaint was not dealt with satisfactorily. Mr Duffield raised his formal complaint with the barrister on 5 December 2011, but he did not get a final response from the barrister until he brought the complaint to the Legal Ombudsman in March 2012. The barrister has said that he could not provide a response during this period because Mr Duffield failed to provide all information he was requesting. However I do not think that documents the barrister requested in order to investigate the complaints were required. Documents such as correspondence between Mr Duffield and his current solicitors, Mr Duffield's wife's latest application to the Home Office and a list of his and his wife's assets were not relevant to the investigation of Mr Duffield's initial complaint."

39. In his determination dated 10 October 2012 the Legal Ombudsman said this:

"I fully endorse the recommendation report's approach to the question of the complaints handling. While you were prompt and courteous in replying to the initial letter, your repeated demands for further documentation were, in my view, unnecessary and obstructive. I do not consider that it was impossible for you to respond to the complaints raised in the absence of the requested papers and your prolonged refusal to do so was poor service."

40. On behalf of the claimant Mr Hendy and Mr Beaumont submitted that this determination was Wednesbury unreasonable, on the basis that:

(i) The claimant's approach could not properly have been characterised as obstructive, since it was reasonable for the claimant to seek disclosure of the majority of the information and documents asked for, which were relevant to the complaint made.

(ii) The Legal Ombudsman had applied the wrong test in considering whether or not it was "necessary" for the claimant to receive the information and documents before replying or "impossible" for him not to respond without receiving them. They submitted that in applying a test of necessity the Legal Ombudsman wrongly applied the test applicable to the Legal Ombudsman's right to demand the production of information and documents (the test under s.147 – see paragraph 12 above) when determining whether or not the claimant's approach was "fair and reasonable in all the circumstances of the case" (the test under s.137 – see paragraph 9 above).

(iii) The claimant's refusal to respond could not properly have been characterised as "prolonged", since the Legal Ombudsman failed to have regard to the extent of Mr Duffield's responsibility for the delay, and to the fact that under the rules (paragraph 4.2 – see paragraph 11 above) the lawyer would save in exceptional circumstances have 8 weeks to respond.

41. On behalf of the Legal Ombudsman Mr Cornwell submitted that:

(a) Given the considerable latitude of discretion conferred upon the Legal Ombudsman the burden of showing that his decision was Wednesbury unreasonable was a very high one (see the observations of Popplewell J in Crawford – paragraph 20 above). In deciding this issue the Legal Ombudsman was entitled to apply his own opinion as to what was fair and reasonable and what he considered to be good practice.

(b) The Legal Ombudsman could, perfectly reasonably, have formed the view, drawing on his experience and views as to good claims handling, that there was no need for the claimant to have awaited production of the information and documents sought by him before providing his substantive reply to the essential complaints made by Mr Duffield, which he clearly understood. There is no basis for the submission that the Legal Ombudsman applied the wrong "test" of "necessity" when it should have been simply "fair and reasonable" because the Legal Ombudsman was perfectly entitled, when deciding whether the claimant's approach was fair and reasonable, to consider whether it was necessary for him to seek the information and documents he did before responding.

(c) The Legal Ombudsman could in the same way, on a reasonable reading of the correspondence and drawing on his experience and views as to good claims handling, have concluded that the claimant's repeated refusal to respond to the essential complaints until he was provided with all of the information and documents sought by him was obstructive.

(d) The Legal Ombudsman could in the same way have concluded that, even if some of the delay was not down to the claimant, there was sufficient delay for which the claimant was responsible to be categorised as prolonged. In that respect the rules did not allow a lawyer 8 weeks to respond, they merely provided 8 weeks as a longstop after which a complainant would be entitled to present a complaint to the Legal Ombudsman.

42. In my judgment this ground of challenge fails, for substantially the reasons advanced by Mr Cornwell. In particular:

(1) It is clear that it is not for the court to substitute its own view for that of the Legal Ombudsman, only to decide whether or not his determination was within a reasonable range of possible conclusions.

(2) In my judgment the Legal Ombudsman was perfectly entitled to conclude that the claimant's approach was obstructive. Whilst I accept (see paragraph 28 above) that the claimant was entitled to seek the Immigration Judge's decision before responding substantively, and that a number of the other categories of information and documents sought were not unreasonably sought, nonetheless the Legal Ombudsman was perfectly entitled to conclude, having regard to: (a) the categories of information and documents which were unreasonably sought; (b) the claimant's steadfast and repeated insistence on being provided with all of that information and those documents before he would respond to what was a perfectly straightforward complaint which he plainly understood and would have had no difficulty in responding to without that information or documents; (c) the increasingly peremptory and intemperate tone of the claimant's responses, that the claimant's approach overall was obstructive.

(3) In my judgment this is not a case where there was only one legally correct test, whether of necessity or reasonableness, which the Legal Ombudsman had to apply when deciding whether or not the claimant's conduct was in all the circumstances fair and reasonable. He was perfectly entitled to ask himself whether or not in the circumstances to which I have referred it was really necessary for the claimant steadfastly to insist on the provision of all of the information and documents which he sought before replying, in a simple and straightforward way, to the simple and straightforward complaints raised, and to conclude that it was not and that in all the circumstances the claimant's conduct was not fair and reasonable.

(4) In my judgment the Legal Ombudsman was perfectly entitled to conclude that, having regard to the extent of the delay due to the claimant's steadfast refusal, that refusal could properly be characterised as prolonged. By late January 2012 the claimant had received the Immigration Judge's decision and would have had no difficulty in providing a response to the complaints. Whilst it is true that there was a delay by Mr Duffield in responding from 16 February to 8 March 2012, I do not consider that this could conceivably lead to the conclusion that the Legal Ombudsman's assessment of the claimant's refusal as prolonged could properly be categorised as Wednesbury unreasonable.

(5) The response letter issue

43. In her Recommendation Report Ms Bhowmick stated, under the section headed "relevant facts", that the response letter "made allegations of fraud and allegations of illegal entry into the UK by Mr Duffield's wife". Under the section headed "views and comments submitted" she recorded that Mr Duffield was "also very upset by the letter dated 20 March written by the barrister. He feels the letter was offensive and threatening. He said the letter attacked him and his wife and made serious allegations against them". Finally, under the "conclusions" section she stated "Also the [response letter] used an unprofessional tone and language and was not an appropriate response to a complaint".
44. In his determination the Legal Ombudsman expressed his view in trenchant terms, stating as follows:

"Your final response to the complaint was offensive and unprofessional in my view, and your repeated allegations of illegality and criminality on the part of the complainant were aggravating factors in your failings adequately to deal with the complaint. Whatever your views of the validity of the complaint in this case, a client is entitled to make a complaint and should not be accused of criminality in doing so. I regard your attitude to the complaints process as being amongst the poorest which I have seen and is a matter which I consider should be referred to your professional body. …

I therefore have decided that you have offered poor service in respect of your appalling handling of the complaint. In view of the highly offensive nature of some of your allegations about Mr Duffield, I consider that the sum of £200 which has been suggested is inadequate compensation for the distress you have caused and order instead that the sum be increased to £400."

45. Mr Hendy and Mr Beaumont submit that this decision was Wednesbury unreasonable, since:

(i) The response letter could not properly have been read as making repeated allegations of criminality and illegality. Properly read, it merely stated reasons why UKBA might have considered that the visa application was fraudulent and tainted by illegality, so as to explain why the appeal process required "meticulous presentation".

(ii) The response letter could not properly have been read as offensive or unprofessional in circumstances where the claimant was forcefully repudiating a misconceived complaint by Mr Duffield in which Mr Duffield, as the claimant rightly stated, had himself made false allegations against the claimant. In that regard the Legal Ombudsman had failed to have any or proper regard to the claimant's right to defend himself vigorously against what he regarded as a baseless complaint, contrary to the observations of Richards J (as he then was) in Bramall v Law Society [2005] EWHC 1570, where he said that:

"53(iii) Nor could [Law Society] guidance in those terms apply appropriately to the OSS investigation. That is a formal process which can lead to the imposition of sanctions. As it seems to me, there can be no obligation on the solicitor to be conciliatory with the OSS. He must be free to defend himself vigorously. It may be prudent to observe restraint in the language he uses to describe the client or the client's complaint, and indeed in the language he uses to describe the OSS's analysis of the matter, but I do not think that any sensible dividing line can be drawn between a permissible "firm" defence and an impermissible "aggressive" defence. If the solicitor's position is that the complaint lacks substance, he is entitled to express that in the terms he judges best calculated to bring out the lack of substance, even if it involves saying harsh things about the client. The fact that, in the interests of procedural fairness, the representations are copied to the client does not mean that the sensitivities of the client must prevail over the solicitor's rights of defence."

46. Mr Cornwell submitted that:

(a) The Legal Ombudsman was fully entitled to conclude that the response letter included repeated allegations of criminality and illegality on the basis of his assessment of how it would reasonably be understood by Mr Duffield on receipt. The submission by the claimant's legal representatives to the contrary ignores the fact that in his detailed statement of grounds the claimant himself referred to the response letter as a "sincere letter written to a client pointing out illegal behaviour by him" [paragraph 27].

(b) The Legal Ombudsman was fully entitled to conclude that the response letter was offensive and unprofessional. The observations of Richards J in Bramall are directed to the right of a solicitor, responding to a complaint which has been referred to investigation (under the scheme then in force, by the Office for Supervision of Solicitors), to defend himself in the course of that investigation, and not to the conduct of a lawyer when responding to complaints under his internal complaints procedure.

"Repeated allegations of criminality"

47. In relation to the first point, I have no doubt that the Legal Ombudsman was fully entitled to conclude that the response letter included repeated allegations of criminality and illegality, for the following reasons:

(1) Whilst it is true to say that the claimant did not, in the section headed "fraud", directly accuse Mr Duffield or Ms Kucherova of fraud, in my judgment the Legal Ombudsman was fully entitled to conclude that this was the plain inference which any reasonable reader would draw from the section, read in context. In particular, the repeated reference in paragraphs 2, 3 and 4 to Mr Duffield "knowing" that the specified conduct was both fraudulent and illegal carries that plain inference. Although it is submitted on behalf of the claimant that paragraph 5 ("your case required meticulous presentation because of such matters") makes it clear that fraud and illegality were not being alleged, in my judgment the Legal Ombudsman was fully entitled to conclude that what this instead makes clear is that it is precisely because – so the claimant was asserting – Mr Duffield and Ms Kucherova were engaged in fraudulent and illegal behaviour that the appeal required "meticulous presentation".

(2) In the following section, headed "Olga and her (illegal?) attempts to get into UK", whilst again it is true that the claimant did not directly accuse Ms Kucherova of having been engaged in prostitution or both of having been engaged in fraud, in my judgment the Legal Ombudsman was again fully entitled to conclude that these were the plain inferences which any reasonable reader would draw.

(3) The same is true both of the following three sections, where in my judgment the Legal Ombudsman was fully entitled to conclude that in the first there was a plain inference that Mr Duffield had a "track record" of making fraudulent attempts to obtain access to those not entitled to do so, and that in the second and third there were plain inferences, from the suggested further reasons given, that Mr Duffield and Ms Kucherova were engaged in a fraudulent and illegal enterprise.

(4) Furthermore, the Legal Ombudsman was fully entitled to conclude in my judgment that the repetition of these allegations demonstrates that they were not simply innocently posed observations as to why the appeal required meticulous presentation. Indeed, in the context of the purpose for writing the letter, there was no obvious reason why they had been included. It is not as if the claimant was responding to a complaint that the amount of work done or the level of fees charged was excessive by saying that it was necessary to do so because of the genuine concern that by appealing Mr Duffield and Ms Kucherova might be exposing themselves to possible prosecution. The letter was a response to a simple complaint that the original advice to appeal and not to make a further visa application was wrong and that the claimant had been profiteering by asking for a large fee initially and then reducing it not just once but twice in order – as Mr Duffield complained – to obtain the work.

(5) If there was any doubt about any of this, the Legal Ombudsman was fully entitled in my judgment to conclude that the concluding words of the letter, advising that unless Mr Duffield withdrew his complaint "the consequences for you and Olga are unforeseeable", make it quite clear that what the claimant was threatening was that unless the complaint was dropped the claimant would make it his business to seek to demonstrate that they were guilty of fraud and illegality, with "unforeseeable consequences" for them both.

(6) In short, in my judgment there were two possible readings of these passages. The first is that arrived at by the Legal Ombudsman, where he plainly saw them as amounting to not very subtly concealed allegations of fraud and criminality, in which the claimant sought, by using well-known rhetorical devices, to make an imputation whilst giving himself scope to deny it subsequently should the need arise: in short, a plain innuendo. The second is that contended for by the claimant, that they were purely innocent observations. It cannot possibly be said, in my judgment, that the Legal Ombudsman's conclusion was outside the range of reasonable conclusions.

48. I have already accepted that the correct interpretation of the response letter does not require any special expertise on the part of the Legal Ombudsman, so that the court should not accord its determination in this respect any wider degree of latitude than it would allow any other decision maker whose decision is being attacked on grounds of Wednesbury unreasonableness. However, it will be obvious from what I have said that I do not consider that this makes any difference to my conclusion. Moreover, I also accept that the Legal Ombudsman did not, in his determination, condescend to a detailed analysis as to this point, or use the word innuendo or similar. However, I do not think that he needed to do so. As Mr Cornwell submits, although the Legal Ombudsman is required to give reasons (s.140 – paragraph 10 above), the procedure is intended to be swift and informal (s.113 – paragraph 9 above), so that he is not required to produce a mini-judgment and, in any event, this is not a "reasons" challenge.

Offensive and unprofessional

49. In my judgment it is difficult if not impossible to disagree with the Legal Ombudsman's conclusion as to the tone of this letter. It is plainly offensive, not just in the allegations of fraud and illegality, but also in the allegations that the complaint and its pursuit are vexatious (paragraphs 1-3), that Mr Duffield's complaint letter is "defamatory, full of falsities and deliberate serious omissions" (paragraph 42), motivated by a "headlong rush to get money from me" (paragraph 43(d)), and so on. It is also plainly unprofessional in its tone.
50. I do not consider that the claimant can undermine this conclusion either by contending that his response was simply pointing out false allegations by Mr Duffield or by relying on what was said by Richards J in Bramall. As to the first point, what the claimant said in this letter went well beyond simply pointing out the alleged false allegations. As to the second point, it is quite clear that in his judgment Richards J was seeking to draw a clear distinction between what a lawyer could properly do when responding to a client complaint under the internal complaints procedure, and what he could do when defending himself in the context of an OSS investigation. In this case it is apparent that the response letter was sent to Mr Duffield as the claimant's substantive response to his complaint under the claimant's internal complaints procedure, so that there was no justification for treating the response letter as if it was a robust submission by the claimant as an accused barrister either to the Legal Ombudsman or to the Bar Standards Board, where he could not be criticised for not pulling his punches.

Unfair to make adverse finding in relation to the response letter?

51. It is convenient at this point to address the claimant's submission, identified in paragraph 5(3)(i) above, that the determination in relation to the response letter was particularly unfair and unreasonable in circumstances where, it is submitted on behalf of the claimant, Ms Bhowmick either positively encouraged the claimant to send the letter, or at least failed to advise him that the Legal Ombudsman had already concluded that if it was actually sent in the form in which it had been sent to them it would refer him to the Bar Standards Board.
52. The difficulty with this submission, as Mr Cornwell observed, is that it ignores the following points:

(1) It was the claimant's choice to draft the letter in the terms which he did. He did not ask Ms Bhowmick for her advice on its content or tone. To the contrary, he specifically enjoined her not to read the draft which he sent on 21 March 2012. He only removed that prohibition on reading it after he had sent the response letter on 4 April 2012, inviting Ms Bhowmick to "read it in depth" as it "shows in detail why the complainant's complaint is baseless, frivolous and vexatious".

(2) The claimant sent the letter as his substantive considered response to Mr Duffield's complaint. It was not the function of the Legal Ombudsman to advise the claimant as the responding lawyer as to the content or the tone of the letter. Indeed, to have done so might properly have been regarded as interfering with the claimant's right and, indeed, duty to provide a substantive response. The Legal Ombudsman owed no duty to the claimant to advise him that if that letter was sent either it might result in a further ground of complaint being made against him or that it might consider itself obliged to report the matter to the Bar Standards Board. Whilst there might have been other cases where one can envisage that the relevant person within the Legal Ombudsman office might have felt it appropriate to venture advice of this kind, that does not mean that there was a positive obligation to do so. Moreover, I cannot ignore the fact that in this case, even by this early stage, the claimant had already made it very clear to Ms Bhowmick that he was not prepared to be guided by her, and was determined to respond to this complaint precisely in the way he saw fit.

(3) There is no basis for any submission that the Legal Ombudsman positively encouraged the claimant to send the letter. All that Ms Bhowmick said was that if the claimant believed, as he obviously did, that he was entitled to the opportunity to submit a formal response to the complaint before the Legal Ombudsman could even consider investigating the complaint, then he should do so. So for example in her e-mail sent on 4 April 2012, before the claimant sent the letter to Mr Duffield, Ms Bhowmick said:

"I would also suggest that you send Mr Duffield your response to the complaint letter now if you still want to do so" (emphasis added).

(6) The defendant's investigation process

53. In their submissions Mr Hendy and Mr Beaumont have made reference to the chronology of relevant events in some detail. I hope I will be forgiven if I refer only to those points which in my judgment are of real relevance to the matters which I have to resolve.
54. On 22 March 2012 Ms Bhowmick sent the complaint confirmation of 15 March 2012 to the claimant. It follows that from this date the claimant was aware that one of Mr Duffield's concerns (I use a neutral expression, rather than complaint) was that he was unhappy with the claimant's response to his complaint, because the claimant had not responded formally and had "continually asked for more information".
55. On 21 March 2012 the claimant had asked the Legal Ombudsman to decide that he had no jurisdiction to entertain the complaint because Mr Duffield had not first completed the internal complaints procedure process, and to suspend the investigation in the meantime. The Legal Ombudsman agreed to consider that request and to suspend the investigation in the meantime, and on 4 April 2012 Mr Gary Garland, the Deputy Chief Legal Ombudsman, responded rejecting that request on the ground that Mr Duffield had set out his complaint in December 2011 and, given that he believed his complaint had not been resolved, was entitled to bring his complaint to the Legal Ombudsman. On the same day Ms Bhowmick asked the claimant to provide certain relevant documents and his comments on why the appeal did not succeed.
56. Later on the same day the claimant requested the Legal Ombudsman to exercise his power to dismiss the complaint under rule 5.7 on a number of grounds, including that it had no reasonable prospect of success or was frivolous and vexatious. He was not willing to provide the documents and information requested pending a decision on that request, and in any event he was, he said, going to be away through April and May with no access to his files.
57. The claimant complains, with justification, that the Legal Ombudsman failed to provide a formal response to this request until 28 June 2012, when Mr David Clare, Team Leader, wrote to him accepting that this should have been done earlier, and indicating that the investigation would be suspended pending a consideration of his request. The claimant complains that in the meantime:

(1) Unbeknown to him, on 12 April 2012 Mr Duffield e-mailed Ms Bhowmick, commenting in relation to the response letter that "it is offensive to me [and] my wife … and has a thinly veiled threat at the end". The claimant notes that this e-mail does not in terms request the Legal Ombudsman to treat it as a formal complaint in relation to the response letter. The claimant also notes that at no time did the Legal Ombudsman send a copy of that e-mail to him.

(2) Unbeknown to him, on 20 April 2012 Mr Garland had sent two internal e-mails to Ms Bhowmick. In the first he referred to an e-mail from the claimant, chasing a decision on his request of 4 April 2012, in the following terms, which the claimant contends are unfair and disparaging:

"A little missive from this chap …"

In the second, he expressed his view of the claimant in the following memorable terms:

"Ears but does not listen; eyes but cannot see; a tongue that probably never stops; and an everlasting supply of ink!"

The claimant submits that these e-mails are clear evidence of actual bias against him on the part of Mr Garland.

(3) Unbeknown to him, Ms Bhowmick had already reached the conclusion by 25 April 2012, having discussed the case internally, that it was unlikely that the complaint in relation to the initial poor advice could be substantiated, because it would be difficult to show that the advice was unreasonable. It appears that Ms Bhowmick was in some difficulty as to how best to proceed from this point onwards. What is clear is that Ms Bhowmick shared her conclusion with Mr Duffield, but not with the claimant, and was awaiting a decision from the former as to whether or not in the light of this he wished to proceed with his complaint before responding to the claimant. In the meantime, the Legal Ombudsman had also formally referred its concern in relation to the response letter to the Bar Standards Board on 27 April 2012, but did not advise the claimant of this either.

(4) On 17 May 2012 Mr Duffield responded, saying that he wanted to proceed with his complaint against the claimant, referring to the poor advice, the "profiteering" and the "offensive and threatening letter he sent attacking us". The claimant notes that this letter was not copied to him either.

(5) The claimant notes that an internal memorandum records that on 30 May 2012 Ms Bhowmick and Mr Garland had decided to proceed to a Recommendation Report, which should conclude that the complaints in relation to poor advice and costs estimates were not substantiated but that the "complaint re poor service reasonable, complaints handling obviously poor and some compensation would be appropriate". Although Ms Bhowmick e-mailed both the claimant and Mr Duffield on 31 May 2012 to inform them that she was going to proceed to produce a Recommendation Report, the claimant complains that even at this point he still had no warning that the Legal Ombudsman was proposing to enlarge the complaint to include complaint handling.

(6) On 8 June 2012 Ms Bhowmick e-mailed the claimant stating that since it was not possible to resolve the complaint informally she would begin to draft her Recommendation Report, and she then stated what it "will say" in substantially the same terms as had been recorded in the internal discussion on 30 May 2012. So far as complaint handling is concerned, she stated:

"However your response to Mr Duffield's formal complaint was poor handling of a complaint. This is based on the length of the response, the language and tone of the reply is considered unprofessional and inappropriate. The way in which the complaint has been dealt with amounts to poor service and I will be recommending a remedy of £200 in compensation."

This was the first time that the claimant was notified that the Legal Ombudsman considered that complaint handling formed part of the subject matter of the complaint. He was clearly alert to this, because he wrote a lengthy and vigorously worded letter of complaint to Mr Adam Sampson, the Chief Legal Ombudsman, dated 28 June 2012, in which he included this point as a matter of complaint.

58. The investigation was then suspended until 2 August 2012, when Mr Garland wrote to say that he did not consider it appropriate summarily to dismiss the complaint, on the basis that Mr Duffield's complaints appeared to be genuine and, albeit not having considered the merits, he felt that the best course would be to allow the investigation to continue. He said that both parties should submit any documentation they wished to be submitted by 10 August 2012, so that the Legal Ombudsman could decide whether or not at that stage the case should be halted and, if not, it should proceed to a Recommendation Report. The claimant complains that it was inappropriate for Mr Garland to make this decision given his previously expressed view of the claimant, and also that since Mr Garland stated in terms that he had not considered the merits it is difficult to see how this could have amounted to a proper decision as to whether or not the claim had a reasonable prospect of success.
59. However it should also be said that although the claimant at this stage had already written to the Legal Ombudsman, threatening judicial review proceedings, he took no further steps to challenge this decision. Instead he submitted an extremely lengthy letter of response by e-mail on 10 August 2012, running to some 51 pages, setting out in very exhaustive detail his response. As relevant to this case it suffices to refer to the following:

(a) page 8, where he set out his response to the complaints handling complaint under a section headed "Mr Rosemarine's complaint handling was good".

(b) page 15, where having made similar points he sets out his argument that there was no complaint about complaints handling made by Mr Duffield nor detailed by Ms Bhowmick, and it would be unfair to reach any determination against him in that regard.

(b) page 42, where he repeats his case as to why it was unfair and unreasonable for the Legal Ombudsman to add an allegation of poor complaints handling to the matters against him.

60. He did not, however, also contend that the Legal Ombudsman lacked jurisdiction to investigate or make any determination in respect of the complaints handling complaint on the basis that Mr Duffield had not first used the claimant's complaints procedures.
61. On 6 September 2012 Ms Bhowmick produced and submitted her Recommendation Report to the parties. As foreshadowed, she concluded that the poor advice and costs estimate complaints were not established, but that the service complaint was, and I have already referred to her findings as relevant to that issue.
62. On 28 September 2012 the claimant responded by submitting what was entitled a "letter before action", running to 24 pages, setting out his disagreement with the Recommendation Report and raising his complaints.
63. On 2 October 2012:

(1) The Chair of the Office for Legal Complaints, Elizabeth France CBE, wrote to the claimant acknowledging that letter and stating that she had discussed his concerns with the Chief Ombudsman, Mr Adam Sampson, who would now review the case himself. (That was confirmed by a letter from Mr Sampson himself dated 8 October 2012 who said that whilst he did not consider that Mr Garland's internal e-mail showed clear evidence of bias he agreed that it would be better if he took the final decision.)

(2) Ms Bhowmick provided a summary of the parties' comments on the Recommendation Report to go to the decision-maker, which included a fair summary of the points made by the claimant in his letter.

64. On 10 October 2012 Mr Sampson produced his final determination, as I have said. He agreed with the conclusions of Ms Bhowmick in relation to the two substantive complaints. I have already referred in some detail to his determination in relation to the refusal to respond issue and the detailed response issue. He also stated in relation to the claimant's outstanding fee claim, that:

"However I should explicitly point out that … I [do not] endorse your claim that there is money outstanding; indeed I have seen no evidence to substantiate this claim, a fact which I find somewhat surprising. For the purpose of this decision, I will treat the case as having been fully paid for, since this is what the evidence presented to me suggests".

65. Mr Duffield having accepted this determination the decision became binding upon the claimant. However the claimant maintained his position in subsequent correspondence to Mr Duffield that he still owed the sum of £1,200. This then led to the further letter from Mr Sampson dated 17 December 2012 in which, referring to what he had said in his determination in relation to the outstanding fee claim, he stated that his decision in that regard bound the claimant, who thus had no legal entitlement to pursue Mr Duffield for those fees. It is that aspect of his decision which was the subject of the permission given by HHJ Pelling QC and the defendant's subsequent capitulation on that issue.
66. However the claimant complains that it is apparent from what he categorises as Mr Sampson's error in relation to the outstanding fee claim that he had not, contrary to his statement at the beginning of the determination, read the case papers or reviewed the evidence in the file or considered the Recommendation Report or the claimant's comments upon it. He contends that Mr Sampson could not have said in his determination that he had not seen any evidence to substantiate the outstanding fee claim, had he seen and read the claimant's letter of 25-26 August 2011 and subsequent fee note of 4 September 2011, or Ms Bhowmick's conclusion in the Recommendation Report that, referring to those documents, she was "satisfied that [the claimant] had done works totalling £900" and possibly more.
67. In his first witness statement Mr Sampson said that he had taken the view he did because "the documents that did exist about the fees were inadequate, were confusing and the sums already paid seemed reasonable". It is not necessary for me to investigate let alone to resolve these issues. It suffices for me to say that although Mr Sampson was, I consider, wrong to state that there was no evidence to substantiate the claim, given the letter and fee note to which I have referred, I am satisfied that it does not show that he had not read into the case before making his determination. In particular, I am satisfied that he could properly have taken the view that the letter and fee note did not, as he says, adequately or clearly establish the entitlement to the £1,200 claimed. More importantly, it is abundantly clear to me from a fair reading of the papers, including the Recommendation Report and the determination, that Mr Sampson had not uncritically adopted Ms Bhowmick's findings and conclusions without troubling to read into the case himself.

(7) The unfairness / jurisdiction issue

68. The matter I have to determine in relation to this issue is the claimant's case that the process leading up to the making of the adverse determination was unfair and the decision taken without jurisdiction, because:

(1) The determination concerned a matter about which no complaint had been made by Mr Duffield or communicated by the defendant to the claimant, and when the claimant had been given no opportunity first to address the matter under his internal complaints procedure;

(2) The investigation and determination process was unfair. In particular the claimant complains that the complaint should have been promptly dismissed under rules 5.4 and 5.7 in relation to the substantial complaints, so that the complaints handling complaint should never have been pursued, and that he was not given a proper opportunity to make representations on the complaints handling complaint before the determination was produced.

The absence of a complaint made by Mr Duffield, communicated to the claimant and about which the claimant had been given the opportunity to address under the internal complaints procedure

69. The claimant's case is that the Legal Ombudsman only has jurisdiction in relation to complaints made by the client about the lawyer which are covered by the Act and the rules. The claimant's case is that unless and until a complaint (defined by rule 1.6 as "an oral or written expression of dissatisfaction") is made, and communicated both to the lawyer and the Legal Ombudsman, and unless and until the lawyer has had the opportunity to address it under the internal complaints procedure, the Legal Ombudsman has no jurisdiction. The claimant's case that these pre-conditions were not satisfied here in relation to the complaints handling complaint, with the result that the Legal Ombudsman had no jurisdiction and/or it was unfair for the Legal Ombudsman to determine it.
70. Mr Cornwell's primary submission in response to this complaint, which I accept, is that neither the Act nor the rules requires the complaint to be set out formally, in the same way either as a statement of case in civil litigation or as a detailed series of allegations in disciplinary proceedings. Instead what is expressly required is a speedy and informal process, and the issue of fairness has to be considered in that context. The rules permit the complaint to be made orally or in writing, and to amount to no more than an expression of dissatisfaction. The Legal Ombudsman may, but is not obliged, to require a complainant to complete a complaints form. All of this demonstrates quite clearly in my judgment that subject to overriding considerations of fairness the court ought not to adopt too technical an approach to this question. I am satisfied that so long as the overall process was fair the Legal Ombudsman would be entitled to allow the ambit of a complaint to be extended to cover other matters of complaint raised by the complainant after the initial complaint, and connected or related to the subject matter of the initial complaint, whether or not they relate to matters arising before or after the date of the complaint.
71. I also accept Mr Cornwell's submission that the initial complaint confirmation letter, which was provided to the claimant, made it reasonably clear that included within the complaint as a whole was a complaint that the claimant had failed to provide a formal response but instead had "continually asked for more information". That, it seems to me, is the articulation of a complaints handling complaint. Furthermore, I also accept Mr Cornwell's submission that Mr Duffield's e-mails of 12 April 2012 and 17 May 2012 make it clear that Mr Duffield wished to expand his complaint to complain about the response letter. Thus I am satisfied that there was a complaint within the scope of the Act and the rules in relation to complaints handling, extending both to the claimant's delay in responding and the content of the response letter.
72. Although the claimant complains that it was not permissible to add the complaints handling complaint to the substantive complaints, I reject this because: (a) a complaints handling complaint was made orally and included in the initial complaint confirmation letter, which was notified to the claimant; (b) the Legal Ombudsman was entitled in my judgment to add the response letter complaint to the complaint which it was already investigating, on the basis that it clearly arose out of the same subject matter as the initial complaint, including the complaints handling complaint, in circumstances where subject to ensuring that the overall process was fair there would be no prejudice to the claimant in so doing. Indeed, although the claimant now complains about adding this to the initial complaint, one can well see that someone in the position of the claimant might legitimately have complained if the Legal Ombudsman had undertaken the alternative approach of raising a separate complaint in relation to the initial allegation of delay and obstruction in replying, and then raising a second separate complaint in relation to the response letter.
73. In such circumstances, I accept Mr Cornwell's primary submission that, subject again to overriding considerations of fairness, the jurisdictional objection arising from s.126 simply does not arise. It is not a new complaint and hence there is no obligation to require the complainant to invoke the internal complaints procedure separately in relation to it.
74. If I am wrong about that, what is the position? So far as s.126 is concerned, whilst ss.(1) provides for a general exclusion from jurisdiction where the lawyer's complaints procedures have not first been used, that is expressly made subject to contrary provision by the rules (ss.(3)). As I have said, rule 4.2 provides for 3 circumstances in which the Legal Ombudsman can determine the complaint even though the complainant has not first used the lawyer's complaints procedures. In my judgment it is readily apparent that had this point arisen in May 2012 the Legal Ombudsman would have been perfectly entitled to conclude that it was not necessary to require Mr Duffield to do so on the basis either of exceptional reasons (which in this case really means no more than that it was so closely connected with the existing complaint that to do so would not be necessary or proportionate) or that the relationship between Mr Duffield and the claimant had so irretrievably broken down that in-house resolution would not have been possible (which is I consider self evident given the tenor of the claimant's response letter).
75. In that regard, whilst Mr Cornwell accepts that that the Legal Ombudsman did not purport to make a decision on this basis, he contends that this is not surprising in the circumstances, particularly where it was not raised as an objection by the claimant at the time. The claimant submits that: (1) where the question is one of jurisdiction, it is irrelevant that he did not raise this as a point himself; (2) there is no basis for treating him as having waived his right to rely on the jurisdictional objection; (3) it is not possible to say that it would have made no difference. The claimant submits that if the substantial complaints had been dismissed and all that was left was the complaint handling complaint he would have had every reason to seek to deal with that through his internal procedure.
76. In my judgment, the claimant's points are not well founded:

(1) This is not a question of jurisdiction in the strict sense. It is clear in my judgment from the Act and the rules as a whole, including s.126 and rule 4.2, that the Legal Ombudsman does have jurisdiction over a complaint, but that it will not exercise its jurisdiction where the complainant has first failed to use the lawyer's complaints procedures save where it considers that one or more of the circumstances identified in rule 4.2 exist. Thus the Legal Ombudsman's decision to investigate and determine a complaint without first affording the lawyer the opportunity to resolve it through his internal complaints procedure could only be challenged on the basis that it was Wednesbury unreasonable.

(2) Whilst I accept (as does Mr Cornwell) that this is not a case where the claimant can be said to have waived any genuine jurisdictional objection open to him, given my above conclusion that does not advance the claimant's case.

(3) It is clear in my judgment that if the claimant had sought to take the jurisdictional point in relation to the complaints handling complaint, as he had previously done in relation to the complaint itself when first raised, the Legal Ombudsman would have decided against him, for the reasons I have given. I do not consider that the Legal Ombudsman's failure to take the potential jurisdictional objection of its own motion, or therefore to address it in a reasoned decision, or to refuse to accept the complaints handling complaint as a further ground of complaint until Mr Duffield had exercised the internal complaints procedure, can be said to be either Wednesbury unreasonable or unfair.

(4) As to the claimant's submission that Mr Cornwell is wrongly inviting the court to find that it would have made no difference anyway, I accept Mr Cornwell's argument that what the court is really considering at this point is whether or not the claimant has suffered any substantial unfairness as a result of being deprived of the opportunity to insist that Mr Duffield pursue the complaints handling complaint though his internal complaints procedure before the Legal Ombudsman proceeded to investigate and determine it. I am quite satisfied on the totality of the evidence that he has not, since it is abundantly clear that there was never the remotest prospect of Mr Duffield and the claimant amicably resolving Mr Duffield's complaint in relation to the way in which the claimant had responded to Mr Duffield's substantive complaints.

77. In the circumstances, I find against the claimant on this ground.

Unfairness in not dismissing the complaint

78. The claimant's case is that it was unfair for the Legal Ombudsman to carry on, ostensibly investigating the substantive complaints, and requiring the claimant to respond substantively at great personal inconvenience and stress to him, in circumstances where it had already decided that the substantive complaints could not be made out and where the complaint handling complaint was not before it and had not been notified to the claimant. The claimant contends that the Legal Ombudsman effectively strung the substantive complaint investigation process along, delayed making a decision under rule 5.7, and then finally made a wrong decision under rule 5.7, in circumstances where the only proper conclusion was that the substantive complaints should be dismissed thus bringing the whole complaint to an end.
79. The defendant's case is that whilst, as I have said, it accepts that it did wrongly delay in making a decision under rule 5.7, there is no basis for concluding either that the delay was such as to render the process unfair or that its decision was wrong. In the latter regard Mr Cornwell notes that the claimant did not seek to challenge that decision by judicial review at the time, nor is it a ground for which permission was expressly sought or granted in the present case.
80. In my judgment there is no basis in the evidence for reaching a conclusion, if I am invited to do so, that the Legal Ombudsman deliberately delayed making a substantive decision on rule 5.7 in order to be able to bring in the complaints handling complaint. All that the evidence discloses, in my judgment, is that there was a certain amount of confusion at the time about what the precise state and ambit of the complaint was at this time, which was not helped, I must say, by the claimant's approach of contesting every decision made and firing off lengthy and at times confusing correspondence. If the Legal Ombudsman really had the motive contended for by the claimant, then there would have been no difficulty so far as it was concerned in bringing in the complaints handling complaint openly and without difficulty, by formally enlarging the complaint by reference to Mr Duffield's correspondence of April and May 2012, by notifying the claimant accordingly, by suspending if necessary the investigation to allow the internal complaints procedure to be undertaken, and then proceeding to a Recommendation Report and final determination. There is no basis here for the claimant's conspiracy theory.
81. Moreover I agree that there is no proper basis for contending that the decision of 2 August 2012 was wrong. It must be remembered that this is not the equivalent of a formal strike out application in the civil courts governed by the Civil Procedure Rules. It is a procedure whereby the essential aim of the complaint process, achieving a speedy informal resolution of complaints, can in appropriate circumstances be achieved by summary disposal. As made clear by rule 5.7 itself the Legal Ombudsman is not obliged to dismiss, even if one or more of the conditions in rule 5.7 is satisfied. Even although at that time it was clearly the view of Ms Bhowmick, shared it appears by her superiors, that the substantive complaints were unlikely to be upheld, that does not necessarily mean that they had no reasonable prospect of success. It certainly did not mean that they were frivolous or vexatious. It must be borne in mind that by that time the claimant had still not formally responded to the Legal Ombudsman's requests for information and documents. In my judgment it was well within a range of reasonable decisions for Mr Garland to take the view that he should allow both parties to make further representations and submit further evidence before proceeding further.
82. Even however if I am wrong in that conclusion, it is difficult to see how the claimant can say he was prejudiced by that decision being wrong. It is quite apparent from my previous conclusions that by that stage the complaints handling complaint matter was before the Legal Ombudsman, and there would have been no conceivable basis for striking that out. Since rule 5.7 confers express power to strike out "all or part of a complaint", the most that the claimant could have achieved would have been an order striking out the substantive complaints. But since they were not upheld anyway, there is no conceivable prejudice to the claimant so far as this case is concerned in the failure to do so.

Unfairness in not allowing the claimant the opportunity to make representations

83. The difficulty for the claimant is that although there may well be room for criticism of the Legal Ombudsman for failing either to inform him in clear terms of the complaints handling complaint prior to 8 June 2012, or to allow him the opportunity to make representations thereon prior to Ms Bhowmick communicating her initial conclusions to him about it in that letter, or to provide him with copies of Mr Duffield's e-mails of 12 April and 17 May 2012 relating to the complaints handling complaint, nonetheless when I come to consider the question of fairness the following points are key in my judgment:

(1) The letter of 15 March 2012 itself made it clear that Mr Duffield was dissatisfied with the complaints handling process.

(2) On receipt of the email of 8 June 2012 the claimant can have been in no doubt that the Legal Ombudsman was treating the complaints handling complaint as a matter into which it was investigating and, in particular, that the reference to the "length of the response, the language and tone of the reply" can only have been a reference to the response letter.

(3) The claimant was advised in terms on 2 August 2012 that he had the opportunity to respond to the complaint and, as is apparent from his lengthy and detailed response of 10 August 2012 he did so, dealing with the complaints handling complaint as well as with the other matters of complaint.

(4) The Legal Ombudsman process contemplates the issue of the provisional decision with an opportunity to respond followed, if needed, by a final determination. The claimant received the provisional decision in the form of the Recommendation Report and could have been left in no doubt that the complaint handling complaint that was upheld related both to the initial failure to respond and the subsequent response letter. Furthermore, the Recommendation Report recorded in terms that the response letter "made allegations of fraud and allegations of illegal entry to the UK by Mr Duffield's wife", and concluded that it "used an unprofessional tone and language and was not an appropriate response". The claimant had, and took, the opportunity to make further detailed representations on the Recommendation Report, including on those points, before the final determination was produced.

84. Moreover, this complaint has to be considered against the background that the scheme is intended, as I have already said on a number of occasions, to be a speedy and informal process.
85. In short, in my judgment it cannot be concluded that overall the claimant was not made aware of the complaints handling complaint or that he did not have a fair opportunity to respond to that complaint before the final determination was produced. I am satisfied that the claimant had and took a fair opportunity to make representations on the complaints handling complaint both before and in response to the Recommendation Report, and thus prior to the final determination, so that overall it cannot be said that the process was so unfair, whether substantively or procedurally, as to lead to the conclusion that the final determination should be quashed on that ground.

(8) The bias issue

86. The claimant complains of actual or alternatively apparent bias, founding his case primarily upon Mr Garland's comments in his emails of April 2012, to which I have already referred.
87. There is a preliminary difficulty which the claimant faces in relation to this challenge, which is that the allegation of bias was expressly raised by him in his original grounds (issue (a)) but in respect of which permission was refused both by HHJ Pelling and King J. Although the claimant contends that because his ground (c) also refers to bias, he has permission to raise this argument, I am satisfied first that on a fair reading it does not but second and more significantly it is not within the scope of the limited issues, carefully defined by King J in paragraph 1 of his order, in respect of which permission was granted. The alternative way in which the claimant seeks to avoid this difficulty is to categorise the effect of the alleged bias as rendering the defendant in breach of his duty under s.137 to reach a fair and reasonable determination. However in my judgment the immediate difficulty with that argument is that this is a reference to the substantive determination, not to the process by which it is arrived at. It follows that in my judgment this ground should not be allowed to proceed on the simple basis that there is no permission to argue it. However, lest I am wrong in that conclusion, and since the point has been argued, I will address it on its merits in any event.
88. The simple and decisive point in my judgment, as HHJ Pelling succinctly observed in refusing permission on the papers, is that whilst Mr Garland may well have expressed himself incautiously in internal e-mails and thereby created at least arguably an impression of bias, nonetheless "the effect of any bias thereafter was addressed by transferring the final decision to the Chief Ombudsman. Once the final decision had been taken, a challenge to the decision to refuse to dismiss the complaint summarily as frivolous and vexatious became academic". I cannot improve on that analysis, with which I agree.
89. Recognising the force of that point, Mr Hendy and Mr Beaumont seek to meet it by submitting that Mr Sampson must have been aware of Mr Garland's strong adverse views against the claimant, and invite me to "infer" that he "respected the views" of Mr Garland. They also seek to rely on alleged errors in the determination of 10 October 2012 to show that Mr Sampson had not read the papers properly. They contend that his conclusion that the response letter made repeated allegations of illegality and criminality was not just wrong, but also betrayed a prejudiced mind against the claimant. They say that the same is true of his failure to refer to the fact that Mr Duffield's principal complaint was as they put it "patently untrue". They rely on Mr Sampson's subsequent determination of 17 December 2012 (now conceded to have been wrong) as demonstrating bias.
90. So far as the first point is concerned, there is absolutely no evidence to support the contention that Mr Sampson discussed Mr Garland's opinions of the claimant with Mr Garland before reaching his determination or that he was in some way infected by those opinions. Mr Sampson has stated in terms in his witness statement that any discussion with Mr Garland about this case would have been brief. He has also confirmed in his witness statement that there are no emails or other documentary communications passing between them in relation to this matter. Furthermore, given the tenor of the correspondence of 2 October 2012, the notion that Mr Sampson would, after discussion with the chair of the Office for Legal Complaints, have agreed to undertake the determination process in order to ensure that there was no potential for bias whilst at the same time harbouring secret pre-existing bias against the claimant as a result of his having had discussions with Mr Garland and accepting without question the latter's view of the claimant as correct is, in my judgment, inherently improbable, and I reject it.
91. So far as the other matters are concerned, as Mr Cornwell submits, and I agree, the fact that Mr Sampson agreed with Ms Bhowmick in rejecting the substantive complaints is in itself powerful evidence against the existence of bias. The complaint that bias can be inferred because Mr Sampson failed to express himself in sufficiently strong terms when rejecting those complaints has no merit. I have already rejected the claimant's complaint in relation to the response letter issue, but more generally it does not seem to me to be permissible to infer bias simply because a decision maker has made a mistake in the decision.
92. Finally, even if (contrary to my conclusion stated above) Mr Sampson had erred in relation to the claimant's outstanding fees claim because, contrary to what he stated, he had not read the papers, reviewed the evidence and considered the comments from the parties, it is not apparent to me how this would support the charge of bias.
93. The claimant also submits that the evidence as to the circumstances in which the Legal Ombudsman as a body dealt with the claimant, including the communications from Ms Bhowmick which, Mr Hendy and Mr Beaumont submitted, were clearly directed by those higher up the line, discloses institutional bias against the claimant. I am satisfied that there is no proper evidential basis for this submission. To the contrary, it is clear that Ms Bhowmick discussed this case on a number of occasions with different members of the Legal Ombudsman team and when, for example, it was recognised that Mr Garland had erred in not producing a substantive decision on the claimant's rule 5.4 objection, that omission was frankly accepted and remedied. The reality, in my judgment, is that whilst the tone of the two emails from Mr Garland upon which the claimant relies is to be deprecated, that is really the only evidence of actual bias in this case and it is simply insufficient to establish actual bias as against Mr Garland, let alone against the Legal Ombudsman as an institution. I am also satisfied that the complaint about the Legal Ombudsman's referral to the Bar Standards Board is misconceived, given the obligations placed upon the Legal Ombudsman in this regard under s.143. But yet more fundamentally, given that this is a challenge to the determination itself, taken by Mr Sampson alone, even if the allegation of institutional bias in relation to the investigation process or the process culminating in the Recommendation Report is made out, it is difficult to see where that would get the claimant.

CONCLUSIONS

94. Save to the extent conceded in the first detailed grounds of defence, reflecting the defendant's concession on ground 6, the claim fails.