Haycocks v The Law Society

The regulatory jurisdiction over substandard professional services extends to services connected with a matter in which the solicitor or firm have at any time been instructed. It may cover an agreement with a former client resolving complaints, including the return of documents and proper complaint handling. Substandard service and professional misconduct may overlap. Compensation under Schedule 1A is compensatory, not punitive, but may reflect aggravated harm caused by persistence and contumacy. A policy of making the prescribed maximum award only in exceptional cases is not irrational, although the court left open whether the maximum is merely a cut-off for compensatory awards that would otherwise be higher.

The appellant, a solicitor, challenged findings by the Office for the Supervision of Solicitors that he had failed to return a former client’s files under a complaint-resolution agreement and had moved the files without authority. An adjudicator directed him to pay the maximum compensation of £5,000, and the Compliance Board’s Adjudication Panel upheld the decision.

Collins J held that the application for judicial review was out of time and that there were no sufficient grounds for extending time. Permission was initially refused on the papers, but was granted after an oral renewal. The central issues were whether the OSS had jurisdiction over conduct after termination of the retainer and whether the compensation award was legally and factually sustainable.

Disposition. Sedley LJ delivered the judgment of the court, with which Ward LJ agreed. The court accepted the Law Society’s undertaking that an adjudicator would reconsider the amount of compensation under Schedule 1A in light of the correct facts. It therefore made no order on the application for judicial review. The costs of the appeal were to lie where they fell, subject to any further submissions on handing down.

1. Jurisdiction. The words requiring that the solicitor or firm “have been instructed” refer naturally to any matter in which they have at any time been instructed. The jurisdiction therefore extends to relevant professional services provided after termination of the retainer.
2. An agreement with a former client resolving complaints may be a professional service provided in connection with a matter in which the solicitor was formerly instructed. The agreed return of documents was such a service. Proper provision for dealing with complaints also falls within the services expected of a solicitor.
3. Substandard professional services and professional misconduct are overlapping categories. Conduct which could have been charged as misconduct may also be dealt with under paragraph 1 of Schedule 1A.
4. Compensation. An award under paragraph 2(1)(c) cannot contain a purely punitive element. It may, however, include compensation analogous to aggravated damages, reflecting stress and inconvenience together with the persistence and contumacy of the default.
5. The adjudicator had apparently proceeded on material errors concerning the date when the French property deeds were returned. The OSS’s undertaking to reconsider quantum, with a fresh right to seek review, adequately addressed that issue.
6. Maximum award. The court regarded a policy of awarding the £5,000 maximum only in exceptional cases as not irrational. It did not decide whether the maximum was a ceiling within a scale of fault or a cut-off for compensatory awards which would otherwise exceed it.

1. Court of Appeal (Civil Division) In [2003] EWCA Civ 788, the court held that the OSS had jurisdiction, accepted an undertaking for reconsideration of compensation, and made no order on the judicial review application.
2. High Court, Queen’s Bench Division Collins J held that the judicial-review application was out of time and refused an extension, also considering the substantive grounds unarguable.
3. Court of Appeal permission stage Keene LJ refused permission on the papers. On renewed oral application, Schiemann and Rix LJJ granted permission and directed that the matter proceed in the Court of Appeal.