Collins v Office For The Supervision Of Solicitors

A regulatory body investigating professional misconduct does not generally owe the complainant a private law duty of care. Its investigative function, including the need to preserve confidentiality when obtaining information from the solicitor concerned, is inconsistent with such a duty. A limited duty might arise on particular facts if the body’s conduct crossed the relevant threshold, but ordinary mistakes, errors of judgment or failures in the investigation do not themselves establish an assumption of responsibility. Permission to appeal may be refused where the alleged duty is not arguable and the claimed losses are speculative or cannot be causally linked to the alleged breach.

Mr Collins complained to the Office for the Supervision of Solicitors about the conduct of his solicitor, Mr Brebner, during a failed business venture. He alleged that the OSS and Mrs Portes, who handled the complaint, owed him a private law duty of care and had breached it by failing to disclose information, mishandling apparent inconsistencies and failing to refer the complaint appropriately.

Mr Justice Garland gave summary judgment for the defendants on 21 December 2001. Mr Collins applied for permission to appeal. The central questions were whether a private law duty of care was arguable in the regulatory context and whether recoverable loss could be shown.

1. Application refused. The applicant had to show that it was arguable that a full court would find a real prospect of success. He failed to do so.
2. The OSS had no general private law duty of care to an individual complainant. Its public regulatory function required it to investigate complaints confidentially and to have regard to confidentiality owed by the solicitor to other clients. That context was inconsistent with treating the OSS as assuming responsibility to the complainant.
3. The OSS was entitled not to disclose substantial parts of the information obtained during its investigation. The fact that Mrs Portes made mistakes, expressed erroneous views, failed to follow internal procedures or mishandled alleged inconsistencies did not itself create a duty of care. A duty could conceivably arise on particular facts if the OSS’s conduct towards a complainant crossed the relevant threshold, but no such limited duty was arguable here.
4. The reasoning in R (Morgan Grenfell & Co Ltd) v The Special Commissioner of Income Tax and Another [2002] 2 WLR 1299, including the importance of confidentiality in regulatory investigations, supported that conclusion. The court also accepted the general principle associated with Parry-Jones v The Law Society [1969] 1 Ch 1.
5. Even if a duty had been established, the alleged losses were highly speculative. The relevant payment had occurred several years before the complaint, and no clear causal link was shown between the OSS’s conduct and the losses claimed. Mr Justice Collins agreed, relying on Garland J’s reasoning on damage.

The order was: application refused.

• High Court: Mr Justice Garland gave summary judgment for the OSS and Mrs Portes against Mr Collins on 21 December 2001.
• Court of Appeal (Civil Division): Permission to appeal was refused.