England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand. London, WC2A 2LL
		27/07/2016

Mr Justice Wyn Williams:

Introduction

1. The Claimant is a solicitor. At the material time he was a sole practitioner trading under the style of Mitchell and Co. In these proceedings he seeks judicial review of a decision made by the Defendant contained in a letter dated 17 November 2014 ("the decision letter"). In summary, the Claimant seeks an order from the Court to quash the direction made in that letter to the effect that the Claimant should refund the sum of £34,000 to the Interested Party, a former client.

The relevant facts

2. The recital which follows is taken, in the main, from the skeleton arguments provided on behalf of the Claimant and Defendant.
3. The Interested Party's father and stepmother died, respectively, on 15 March 2013 and 28 April 2013. Letters of administration to their respective estates were granted on 13 June 2013, in respect of the father and 16 August 2013, in respect of the stepmother. An important asset of the estates was the property known as 51 Totterdown Street, London SW17 ("the property"); indeed it may have been the only substantial asset and for that reason, henceforth, I shall not differentiate between the property and the estates.
4. Under the rules of intestacy prevailing at the material time there were three persons who were entitled to inherit. They were the Interested Party, her brother and her step-sister; each of them was entitled to a one-third share of the property. However, shortly after the letters of administration were obtained and without reference to the Interested Party, the property was put up for sale and the Interested Party was, apparently, excluded from decision-making in respect of the proposed sale.
5. On 27 September 2013 the Interested Party attended the Claimant's offices in order to seek advice about this state of affairs. An initial consultation took place. A further consultation occurred on 30 September. On that date the Interested Party was provided with a "client care letter" and the Claimant's standard terms of business, both of which she signed. The client care letter recited that the Interested Party had instructed the Claimant's firm "in connection with the probate of your late father and step-mother's estate". It is not in dispute that on that day the Claimant was interviewed and advised by Mr Sood who was then a trainee solicitor employed by the Claimant. Throughout the time that the Interested Party was a client of the Claimant's firm, it was Mr Sood who was her point of contact and it was he who advised her.
6. That same day (30 September) the Interested Party was given an invoice for the sum of £583.60. The work done was specified in the invoice as follows:-

"Our professional fees taking instructions and advice

Initial 30 minutes free.

Taking instructions and advising you on the probate dispute between yourself and your brother Mr Pinaki Patel and stepsister Ms Jaymini.

Advising you on your right to one third share of the estate since your parents had no will.

Doing Land Registry search

Draft and send letter to Bernard Marcus

Inquiries if any will have been made

Timing 2 hours 20 minutes @ £210 per hour."

The sum of £583.60 was made up of the Claimant's charges together with VAT plus a disbursement of £4 for a Land Registry search. Shortly after the invoice had been delivered to the Interested Party, she paid the Claimant's firm the sum of £500.

7. On 28 October 2013 Mr Sood wrote to the Interested Party to point out that £83.60 was outstanding from the invoice which had been rendered on 30 September 2013. The letter went on to explain that if there was litigation between the Interested Party and her siblings, which proceeded to a trial, the estimated fees would be in the region of £30,000 to £35,000 plus VAT and disbursements. The Interested Party was asked to pay the sum of £2,000 on account in respect of such potential fees. It is not entirely clear whether the Interested Party made such payment, although nothing turns upon whether she did.
8. Nothing of any substance seems to have occurred during November 2013. The Claimant asserts that on 4 December 2013 a letter was written to the estate agents marketing the property to ascertain the identity of the solicitors who were acting in the sale. This letter is not in the trial bundle but there is no reason to suppose that a letter was not sent as alleged.
9. On 5 December 2013 the Interested Party sent a text to Mr Sood in the following terms

"Hello. Jagruti here, pls give them no more chances enough is enough"

Mr Sood made an attendance note of the text message shortly after he had received it. On the same day he spoke to the Interested Party over the telephone. The substance of the attendance note of that conversation made by Mr Sood reads as follows:-

"I discussed costs with her. I said that the funds she paid has been fully utilised and that we will require a further payment on account in order to continue to work. I said that without payment we cannot continue, I requested payment on account of fees.

Client said she cannot pay any money. She said she has no money whatsoever but wanted us to continue with the matter. I said that we were undertaking work on a private fee-paying basis and need payment to continue, she said she could no longer pay and cannot continue on this basis due to her not having any money. Client asked whether there was an alternative as she is eager to continue with the matter as she was worried she would lose out on her share.

I discussed alternatives with client, including a contingency fee agreement. Client said she was happy to enter into a contingency agreement. I went through this with her and explained the contingency agreement and the way it works. Client agreed to proceed with the matter by way of a contingency agreement at an agreed deduction rate of 20 percent.

Client confirmed she agreed the terms discussed and we should continue to act on the new terms.

I said that her method of funding will now change from a private paying basis to a contingency agreement basis. She understood and was happy to proceed.

She made an appointment to come and sign conditional fee agreement on 10 December at 11am."

10. On 6 December the Interested Party sent a text to Mr Sood to inform him that she understood that completion of the sale of the property was taking place that day. There followed a telephone conversation in which Mr Sood reassured her that the Claimant had approved the proposed contingency fee agreement and that the necessary paperwork would be signed on 10 December.
11. On 9 December 2013 Mr Sood made an attendance note in the following terms:-

"Re Jagruti Patel ("JP")

Call from Tilbury Godard Ms. Sonia Weston (9.35 am)

She has received my telephone message and confirmed she was acting for 51 Totterdown Street. She confirmed that she was acting for 2 executors under grant of probate and that there was no will.

She confirmed contracts had been exchanged with completion set for 11 December 2013.

I have put her on notice of our client's interest. I will be writing to her. She has agreed to hold any funds until she speaks with me again."

12. That same day Mr Sood wrote to Ms Weston. The letter was delivered by hand (the respective firms having offices within walking distance of each other). The letter gave notice that the Interested Party claimed a beneficial interest in the proceeds of sale of the property to the extent of one third and it sought an undertaking that the proceeds of sale would not be distributed until the Interested Party's claim had been determined. The letter concluded

"Unless we hear from you by 12 noon tomorrow 10 December 2013 with an undertaking we shall have no alternative but to issue a claim and interim freezing order application in the Chancery Division of the High Court without further notice."

13. Some time after the letter was written, Mr Sood spoke to the Interested Party and explained the content of his letter to Tilbury Goddard. The attendance note made by Mr Sood of this conversation records the Interested Party as being "very anxious". It is of some importance that the attendance does not suggest that Mr Sood informed the Interested Party that Ms Weston had agreed to hold the funds generated by a sale of the property at least until she next spoke to Mr Sood.
14. On 10 December 2013 Ms Weston wrote to Mr Sood as follows:-

"We thank you for your letter of the 9^th December which was put through our letterbox after close of business and therefore was received by us on the 10^th December.

We are taking our clients' instructions upon the contents of your letter relating to the beneficial interest of Ms Jagruti Patel.

The sale of the above property will be completed as planned on 11^th December 2013. We undertake to hold the net proceeds of the sale after deduction of the estate agents commission and our fees until the claim of Ms Jagruti Patel has been dealt with.

We will write to you further once we have received instructions from our clients."

15. In the Statement of Facts and Grounds submitted in support of the claim for judicial review the Claimant asserts that the Interested Party attended his office during the morning of 10 December and signed a contingency fee agreement. He asserts that the Interested Party was "taken through the CFA and was advised carefully on the terms of the CFA prior to signing". The Statement goes on to assert that the potential dispute between the Interested Party and her siblings was live and ongoing at this point and, further, that the letter of 10 December from Tilbury Goddard had not been received. The Claimant has prevaricated about this last point; in a letter in a response to the Defendant dated 23 October 2014 the Claimant appears to acknowledge that the undertaking had been received by the time of the meeting - see trial bundle page B134. Whether that was a mistake I know not; however, the Defendant was plainly entitled to proceed on the information provided to him by the Claimant.
16. The contingency fee agreement was made between the Interested Party and Mitchell and Co. It is to be found at pages B194 to B196 of the trial bundle. Under the heading "Paying Us" the agreement provides:-

"If you win your claim you pay us 20% of your compensation and damages plus any disbursements. In addition there will be VAT at the rate (currently 20%) that applies when the work is done.

If you lose the case you do not pay us anything except disbursements.

If you end the agreement before your claim is resolved, you are liable to pay our costs at the rate of £210 per hour with letters and telephone calls charged at £21 each unless they last for 6 minutes or longer in which case they are charged at the appropriate proportion of the hourly rate. All of these figures attract VAT at the rate (currently 20%) that applies when the work is done.

For what happens if we end the agreement before your claim is resolved, please refer to paragraph 5."

Paragraph 5 specified that the Interested Party could end the agreement at any time. It went on to record that she would then be liable to pay the Claimant's costs incurred up to that date calculated at the hourly rate.

17. Paragraph 25 of the Statement of Facts and Grounds asserts that shortly after the contingency fee agreement had been concluded the Interested Party reached a settlement with her siblings. The Claimant asserts that he was not aware of this agreement at the time the contingency fee agreement was concluded. Subsequently he became aware that the agreement reached by the Interested Party was to the effect that she would permit her siblings to deduct the sum of £94,600 from her share of the proceeds of sale in satisfaction of claims which they had against her. Mr Sood and/or the Claimant must have become aware of the settlement within hours of the signing of the contingency fee agreement and, at the latest, the Claimant was aware of it on 11 December.
18. That day the Claimant rendered an account to the Interested Party. The account was contained within a letter which began by asserting that the Claimant's firm was "pleased that we have won your case". It specified that she was entitled to the sum £157,428.66, which represented one third of the net proceeds of sale of the property. From that amount, the sum of £94,600 had been deducted in accordance with the agreement reached between the Interested Party and her siblings. The Claimant deducted a further sum of £37,806.88, which constituted the contingency fee of 20% plus VAT together with bank transfer charges of £24. The net payment made to the Interested Party, in accordance with the account, was £25,021.78.
19. On 9 February 2014 an accountant acting on behalf of the Interested Party wrote to the Claimant on her behalf. The letter is not in the trial bundle but it is referred to in a letter written by the Interested Party, herself, dated 2 March 2014. That letter constituted a complaint about aspects of the services rendered by the Claimant's firm. Eleven allegations were made including complaints relating, specifically, to the circumstances surrounding the making of the contingency fee agreement and the lack of advice and/or adequate advice about its terms and consequences (see complaints 5 to 9).
20. The Claimant replied in detail to the Interested Party's letter on 19 March 2014. Each specific complaint was dealt with in some detail and all the complaints were refuted. In particular, the Claimant disputed the contention that the Interested Party had a justifiable complaint relating to the circumstances in which the contingency fee agreement came to be concluded and, further, it was disputed that there was a lack of advice about the agreement and/or that the advice tendered was inadequate. The Claimant's letter ended by alerting the Interested Party to the possibility that she could make a complaint to the Defendant.
21. The Defendant received and accepted a complaint from the Interested Party on 18 August 2014. On 21 August the Defendant wrote to the Claimant confirming that he had accepted the Interested Party's complaint and notifying the Claimant that he considered that the complaint received fell within his jurisdiction. On 16 September 2014 the Defendant notified the Claimant of the Interested Party's complaints. There followed an exchange of emails between the Claimant and Mr Stuart Knight, one of the Defendant's investigators. On 13 October 2014 Mr Knight produced a "Recommendation Report" which was similar but by no means identical to the decision letter. The Claimant responded to this report by rejecting it. Thereafter the Defendant made the decision which is the subject of these proceedings.

The statutory framework

22. Part 6 of the Legal Services Act 2007 (hereinafter referred to as "the Act" or "the 2007 Act") sets out a number of provisions which govern complaints about lawyers. Section 113 of

the Act provides

"(1) This Part provides for a scheme under which complaints which-

(a) relate to an Act or omission of a person ("the respondent") in carrying on an activity, and

(b) are within the jurisdiction of the scheme (see section 125),

maybe resolved quickly and with minimum formality by an independent person.

(2) Under the scheme-

(a) redress maybe provided to the complainant, but

(b) no disciplinary action maybe taken against the respondent.

(3) …

(4) But neither the scheme nor any provision made by this Part affects any power of an approved regulator, or the Board in its capacity as a licensing authority, to take disciplinary action.

(5) "Disciplinary action" means the imposition of sanctions, in respect of a breach of conduct rules or discipline rules, on a person who is an authorised person in relation to an activity which is a reserved legal activity."

Section 115 makes provision for an ombudsmen scheme. It also empowers the Office for Legal Complaints to make "Scheme Rules". Section 122 contains provisions relating to the appointment of the Defendant and "assistant ombudsmen". Section 125 of the Act, entitled "Jurisdiction of the ombudsmen scheme" provides

"(1) A complaint which relates to an act or omission of a person ("the respondent") in carrying on an activity is within the jurisdiction of the ombudsmen scheme if-

(a) the complaint is not excluded from the jurisdiction of the scheme by section 126, or by scheme rules made under section 127,

(b) the respondent is within section 128, and

(c) the complainant is within section 128 and wishes to have the complaint dealt with under the scheme.

(2)....

(3) The right of a person to make a complaint under the ombudsmen scheme, and the jurisdiction of an ombudsman to investigate, consider and determine a complaint, may not be limited or excluded by any contract term or by notice."

Section 126 of the Act excludes a complaint from the jurisdiction of the scheme if the complainant has not first used the respondent's complaints procedures in relation to the complaint. Section 127 provides:-

"(1) Scheme rules may make provision excluding complaints of a description specified in the rules from the jurisdiction of the ombudsmen scheme.

(2) But they may not make provision excluding a complaint from the jurisdiction the ombudsmen scheme on the grounds that it relates to a matter which has been or could be dealt with under the disciplinary arrangements of the respondents relevant authorising bodies."

I need not set out section 128 of the Act. It is common ground that the Claimant is a respondent within section 128; it is also common ground that the Interested Party is a complainant.

23. There is no definition of the word activity contained within part 6 of the 2007 Act. However section 12 of the Act defines the phrases "reserved legal activity" and "legal activity". It reads as follows: -

12. Meaning of "reserved legal activity" and "legal activity"

(1) In this Act "reserved legal activity" means—

(a) the exercise of a right of audience;

(b) the conduct of litigation;

(c) reserved instrument activities;

(d) probate activities;

(e) notarial activities;

(f) the administration of oaths.

(2) Schedule 2 makes provision about what constitutes each of those activities.

(3) In this Act "legal activity" means—

(a) an activity which is a reserved legal activity within the meaning of this Act as originally enacted, and

(b) any other activity which consists of one or both of the following—

(i) the provision of legal advice or assistance in connection with the application of the law or with any form of resolution of legal disputes;

(ii) the provision of representation in connection with any matter concerning the application of the law or any form of resolution of legal disputes.

(4) But "legal activity" does not include any activity of a judicial or quasi-judicial nature (including acting as a mediator).

(5) For the purposes of subsection (3) "legal dispute" includes a dispute as to any matter of fact the resolution of which is relevant to determining the nature of any person's legal rights or liabilities.

(6) Section 24 makes provision for adding legal activities to the reserved legal activities.

24. Assuming the ombudsmen has jurisdiction to determine a complaint his powers are those specified in section 137 of the Act. The section provides:-

"(1) a complaint is to be determined under the ombudsmen scheme by reference to what is, in the opinion of the ombudsmen making the determination, fair and reasonable in all the circumstances of the case

(2) the determination may contain one or more of the following-

(a) a direction that the respondent make an apology to the claimants;

(b) a direction that-

(1) the fees to which the respondent is entitled in respect of the services to which the complaint relates ("the fees") are limited to such amount as they be specified in the direction, and

(2) the respondent comply, or secure compliance, with such one or more of the permitted requirements as appeared to the ombudsmen to be necessary in order for effect to be given to the direction under sub-paragraph (1);

(c) a direction that the respondent pay compensation to the complainant of such an amount as is specified in the direction in respect of any loss which has been suffered by, or any inconvenience or distress which has been caused to, the complainant as a result of any matter connected with a complaint;

(d) a direction that the respondent secure the rectification, at the expense of the respondent, of any such error, omission or other deficiency arising in connection with a matter in question as the direction may specify;

(e) a direction that the respondent take, at the expense of the respondent, such other action in the interest of such other action in the interest of the claimant as the direction may specify.

(3) for the purposes of sub-section (2)(b) "the permitted requirements" are-

(a) the whole or part of any money already paid by or behalf of the complainant in respect of the fees be refunded;

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

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

(4) where-

(a) a direction is made under sub-section (2) (b) which requires that the whole or part of any amount already paid by or on behalf of the complainant in respect of the fees been refunded, or

(b) a direction is made under sub-section (2) (c) the direction may also provide for the amount payable under the direction to carry interest from a time specified in or determining in accordance with direction, at the rate specified in/or determined in accordance with scheme rules.

(5) The power of the ombudsmen to make the direction under sub-section (2) is not confined to cases where the complainant may have a cause of action against the respondent for negligence."

25. The relevant Scheme Rules were published on 1^st February 2013. Rule 2.6 specifies:-

"the complaint must relate to an act/omission by someone who was an authorised person at that time but;

a) an act/omission by an employer is usually treated also an act/omission by their employer, whether or not the employer knew or approved;…."

By Rule 2.8 the complaint "must relate to services" provided by the respondent to the complainant.

The Decision Letter of 17^th November 2014

26. The letter begins by setting out, in summary, the chronology between September 2013 and early December 2014. The Defendant then continues:-

"However, bearing in mind she had gone to the firm at the end of September I have not seen any evidence of significant activity from the firm in either investigating Miss Patel's claim or the status of the Estate. Despite having been asked to provide their time legers on the case the firm failed to do so and therefore from that I can only conclude it has little to offer in illuminating their costs. Although the firm protest they did do significant work over this period it is hard to see where this was. The first approach to the other side was before December when they wrote to the estate agents who were selling to find out who the other side solicitors was."

27. The letter next considers the circumstances surrounding the making of the contingency fee agreement. The Defendant concludes that there is "no evidence that the firm set out the pros and cons of the "CFA"". Further, he concludes:-

"In any event this case was far from a full-on litigation matter at that stage as it seems to me when the firm e-mailed the other firm of solicitors and told them of what the situation was they properly and quickly agreed to hold any funds until such disputes between beneficiaries were settled. It is clear the other side gave such an undertaking on 9^th December at 9.35am."

28. In the paragraphs which follow the Defendant provides further factual analysis of the events surrounding the making of the contingency fee agreement on 10^th December 2013 and he records the fact that a settlement was achieved either on that day or the day following. He then concludes:-

"In my view the way the funding this case was handled was not in the best interest on Miss Patel. Whilst I accept that there was a potential for litigation that never materialised as the case settled almost as soon as the matters were properly raised between the parties. I cannot see there was ever proper preparation for action and I cannot see where given the circumstances any sort of injunctive relief was needed. I am also critical of the firm's enthusiasm to look after its own interests first rather than its client. In my view this was clear pressure bordering on duress. There does seem to me, to have been a rather disagreeable rush to get Miss Patel to sign up to the "CFA" without any real thought for the impact upon her. In the circumstances I can only conclude it was a bad bargain and cannot stand due to the inequality of the bargaining situation between the firm and Miss Patel brought about by the knowledge they had."

29. Having considered the appropriate remedy the Defendant records his decision as follows:-

"1 Refund the sum of £34,000 being the sum overcharged by the firm arising out of the poor legal advice and costs advice in the matter of Miss Patel's parent's estate in which the firm's service failed."

It is to be noted that the Defendant permitted the claimant to retain the sum of £3,342.88 which, in his view, was a reasonable estimate of the costs actually incurred as a consequence of the Claimant's involvement in the case.

Grounds of challenge

30. As is clear from Mr Biggs' skeleton argument two grounds of challenge are advanced. First, it is argued that the Defendant had no jurisdiction to direct the Claimant to repay the sum of £34,000. As an alternative, it is said that the direction to repay that said sum was made for an improper purpose and, in consequence, it was unlawful. Second, the Claimant asserts that the Defendant's decision to direct repayment was irrational or unreasonable. I turn to consider each of these grounds.
31. It is common ground that the jurisdiction of the Defendant to determine a complaint made to him is to be determined by reference to Sections 113 and 125 to 129 of the 2007 Act. By virtue of Section 113 the Defendant may resolve disputes between a solicitor and his client/former client which "relate to an act or omission" of the solicitor in carrying on "an activity" provided the complaint is not excluded from his jurisdiction by any of the matters set out in Sections 126 to 129. Part 6 of the Act contains no definition of the word "activity". However Section 12 of the Act defines the phrases "reserved "legal activity" and "legal activity" - see paragraph 23 above. In my judgment the word activity in Section 113 must, at the very least, encompass reserved legal activity and legal activity. If that is correct, the question to be answered is whether the complaints made by the Interested Party and, in particular the complaints which she made in relation to the lack of advice about the terms and consequences of the contingency fee agreement, related to acts or omissions in carrying on legal activity on the part of the Claimant. In the absence of authority to the contrary, I would hold that the complaints made to the Defendant did constitute complaints relating to acts or omissions in carrying on legal activity on the part of the Claimant. Further, in my judgment, they were complaints relating to services within rule 2.8 of the Scheme Rules.
32. As it happens, however, there is authority which is relevant to this ground of challenge. In Layard Horsfall Limited v The Legal Ombudsman [2013] EWHC 4137 (Admin) Phillips J considered a judicial review of a decision of the Legal Ombudsman whereby he had directed a solicitor to limit the fees which had been charged to a client for acting on behalf of the client in proceedings against a builder. One of the grounds of challenge in that case was that the Legal Ombudsman lacked jurisdiction to entertain a complaint in relation to the quantum of fees contractually due by virtue of the terms of a conditional fee agreement. In relation to this argument Phillips J set out Section 113 of the 2007 Act and then continued to:-

"20. The claimant accepts that the basic jurisdictional requirements set out in S.125 and S.126 of the Act are satisfied in relation to the complaint. Mr Horsfall's argument is based on s.l25(l)(a) which provides that the Ombudsman has jurisdiction if a complaint is not excluded by scheme rules made under Section 127 of the Act. Mr Horsfall relies upon rule 2.8 of the Legal Ombudsman Scheme Rules ("The Scheme Rules"), which provides that 'the complaint must relate to services which the authorised person provided.... ' He contends that the effect of this provision is to limit the jurisdiction of the ombudsman to 'service complaints', being complaints about the standard of service provided by solicitor to a client, and to exclude issues about whether a sum is contractually due.

21. In my judgment Mr Horsfall's contention fails for two reasons. First, rule 2.8 does not provide that complaints must be "about" services provided, let alone about the standards of service. In referring to complaints which "relate" to services provided, the rule uses an expression which is well understood to have a wide ambit. Contrary to Mr Horsfall's submission, there is no reason to read into the rule an exclusion of complaints relating to the amount charged for services, including whether the amount charged is contractually due and owing: it would be an artificial and unworkable distinction if the Ombudsman could consider the quality and levels of service but not issues of wrongful charging or overcharging. It is noteworthy that s.137(2) of the Act provides that the Ombudsman may direct that the fees to which a respondent is entitled are limited to specify the amount. That would be a difficult provision to apply if the Ombudsman could not consider what was the correct contractual starting point before making such a determination.

22. Second, the Ombudsman's final decision in this case was, in any event, firmly based on a consideration of the level of service which the claimant provided to Ms Lane in the context of advising her on her liability of fees under the CFA and the consequence of discontinuing the proceedings, as well as the delay in invoicing her. I see no basis on which that approach could be said to be outside the jurisdiction of the Ombudsman, even if, contrary to my finding above, the jurisdiction of the Ombudsman was restricted in a manner for which the claimant contends."

33. As is obvious, the approach adopted by Phillips J supports the contention that the Defendant had jurisdiction to entertain the complaint of the Interested Party in this case. In principle the two cases are indistinguishable. Although I am not bound by the decision in Horsfall I should follow it unless I am satisfied that it is wrong.
34. Mr Biggs submits that I should not follow Horsfall. He submits that a number of pertinent arguments were never put before Phillips J and, had such arguments been deployed, Phillips J would not have concluded as he did.
35. The primary argument which Mr Biggs wishes to deploy is that those sections of the 2007 Act which determine the Defendant's jurisdiction should not be interpreted so as to confer upon him the power to interfere with fundamental common law rights or principles. Relying upon statements of principle in such cases as Mixnam's Properties Limited v Chertsey UDC [1965] AC 735 Mr Biggs submits that "freedom of contract" is a fundamental common law principle and clear and unequivocal words would be necessary in order to confer upon the Defendant the power to set aside a contract freely entered into and/or to set aside the consequences of such a contract. His secondary argument is that the 2007 Act should not be interpreted so as to confer upon the Defendant a power which overrides or undermines "other jurisdictions or legal frameworks". He points out that there were remedies available to the Interested Party (other than a determination by the Defendant) if she was aggrieved about the amount of the fee payable to the Claimant e.g. under the Solicitors Act 1974..
36. I have reflected upon these arguments but, in my judgment, they do not avail the Claimant. The statutory words entitle the Defendant to determine a complaint which relates to an act or omission in carrying on an activity. As I have said the "activity" within section 113 must include legal activity as defined in section 12. Rule 2.8 of the Scheme Rules specifies that the complaint must relate to services provided to the complainant but, plainly, that does not seek to proscribe the meaning to be given to legal activity in any way.
37. In my judgment, the words of the relevant sections of the 2007 Act are clear and unambiguous and are sufficiently widely drawn to confer upon the Defendant the power to entertain complaints about the circumstances in which a solicitor's client comes to enter into a contract for services with his solicitor and the advice received in relation to that contract as to its terms and consequences.
38. Mr Biggs' alternative argument under ground 1 is that the Defendant's decision was not, in substance, founded upon inadequate or poor advice provided by the Claimant to the Interested Party (as the Defendant maintains in his decision letter) but, rather, the Defendant's conclusion that the contingency fee agreement was unfair or unreasonable.

39. I accept that there are passages in the decision letter in which the Defendant expresses the view that the contingency fee agreement was unfair or inappropriate. It is clear, however, that these sentiments are based upon an assessment of the factual circumstances surrounding the making of the agreement and the conclusions reached by the Defendant about the adequacy of the advice tended to the Interested Party in the light of those circumstances.

39. I am not surprised that the Defendant felt it appropriate to express a view about the fairness or reasonableness of the contingency fee agreement which was concluded. Having determined that the complaint of poor legal advice was justified, section 137 of the 2007 Act required the Defendant to determine the complaint by reference to what he thought was fair and reasonable in all the circumstances. In making that assessment it was permissible for him to reach a view about the fairness and reasonableness of the effect of the contingency fee agreement.
40. In my judgment, the challenge under ground 1 is not made out.
41. I turn to ground 2. The discretion conferred upon the Defendant is wide ranging. As I have said he is empowered to determine a complaint by reference to what he considers to be fair and reasonable in all the circumstances of the case. It is common ground that the Defendant's decisions are susceptible to challenge on the grounds of unreasonableness or irrationality. That said, the court is usually circumspect before labelling a decision of a specialist decision maker unreasonable or irrational. I do not address the Claimant's submission that a more intensive standard of review is appropriate in this case - see paragraph 49 below.
42. With that introduction let me deal with the specific complaints made by Mr Biggs which underpin the rationality challenge. They are set out at paragraph 59 of his skeleton argument. He submits that the Defendant unreasonably or irrationally concluded that (a) the claimant did not advise the interested party as to the terms and effects of the contingency fee agreement or, if he did, such advice was inadequate, (b) the interested party was induced to enter into the agreement by a form of duress, (c) there was no evidence of substantial work being done by the Claimant, (d) the Claimant's firm had secured an undertaking against dissipation by the time the contingency fee agreement was concluded and (e) as a consequence of such undertaking the potential for litigation was reduced very substantially.
43. Each of these points is answered in detail in Mr Wagner's skeleton argument-see paragraph 64 to 78. In the light of the detailed written submissions on both sides I can state my conclusions quite shortly. On the basis of the attendance notes produced by the Claimant I am satisfied that it was open to the Defendant to conclude that the advice tended to the Interested Party by Mr Sood as to the terms and consequences of the contingency fee agreement was, at the very least, inadequate. The attendance note of 5^th December 2013 suggests that the contingency fee agreement was explained to the interested party but this was a telephone conversation and there is no suggestion that the Interested Party had a draft contingency fee agreement before her when the discussion was taking place and/or that she had the opportunity to read the document at any time that day. There is no evidence that the agreement was provided to the Interested Party prior to the attendance at the Claimant's office on 10^th December. By that time, at the very least, Mr Sood was aware of the oral undertaking provided by Ms Western of Tilbury Goddard and, as I have said, it was open to the Defendant to infer that he had received the letter of 10 December 2013 which contained the written undertaking. It is true that the attendance note for 10^th December contains the following.

"I have gone through the agreement with her. Explained to JP in very plain terms the contents of the complete agreement. She understood it fully."

To repeat, however, this meeting was occurring when Mr Sood knew that the proceeds of sale would not be dissipated and, further, that the Interested Party had an indefeasible right to one third share in the proceeds of sale of the property. In my judgment, it was plainly open to the Defendant to conclude, as he did, that the Interested Party was not advised that Tilbury Goddard had offered an undertaking as to dissipation prior to the conclusion of the contingency fee agreement and that the prospect of litigation were very small by the time the agreement was signed.

44. In my judgment, the Defendant's finding that there was "pressure bordering on duress" upon the Interested party to conclude the contingency fee agreement was one which was open to him given (i) the fact that the Interested Party made a complaint to that effect in her letter of 2^nd March 2014 and (ii) the way events unfolded between 5^th December 2013 and 11^th December 2013. I should make it clear that I do not read the Defendants decision letter as suggesting that the Interested Party had been subjected to duress in its strict legal sense: in my judgment he was conveying no more than the Interested Party felt under pressure to reach an agreement with the Claimant about payment for the Claimant's legal services.
45. There is no justifiable complaint about the Defendant's finding that there was little evidence of significant work on the part of the Claimant. The Claimant produced no documentation other than that to which I have referred to describe the work which was undertaken. In my judgment, it was clearly open to the Defendant to conclude that the work undertaken was not substantial.
46. In my judgment the claimant has failed to establish ground 2.

Conclusion

47. It follows that this claim must be dismissed.
48. I should record that the Claimant's skeleton argument contains references to other "potential" grounds of challenge. At the outset of the hearing there was a debate about whether those potential grounds could be advanced since they had not been pleaded. I made it clear that in the absence of an application to amend the Statement of Facts and Grounds I would not be prepared to consider the potential grounds advanced in the skeleton argument and in the light of that indication the Claimant decided to pursue the claim on the pleaded grounds. This judgment, therefore, is confined to dealing with the grounds which were pleaded in the Statement of Facts and Grounds.