Haley, R (on the application of) v Solicitors' Disciplinary Tribunal & Ors

The Legal Services Ombudsman may recommend that a professional body reconsider a complaint, but cannot limit that reconsideration to a particular aspect of the complaint. The recommendation may require the matter to be looked at again in the light of concerns about the manner of investigation, the underlying merits, or both. The Ombudsman does not exercise the regulator’s substantive disciplinary function and cannot determine matters which the professional body must decide. A recommendation to reconsider may therefore lead to a different disciplinary outcome, including referral to a disciplinary tribunal. The application for judicial review was dismissed because the Ombudsman had jurisdiction to make the recommendation and the Solicitors’ Disciplinary Tribunal had jurisdiction to continue its process.

The claimant, a solicitor, challenged the Legal Services Ombudsman’s recommendation that the Law Society reconsider its decision not to refer her conduct to the Solicitors’ Disciplinary Tribunal. The recommendation followed a complaint about a property transaction and an earlier Law Society decision imposing a severe reprimand.

The claimant argued that the Ombudsman had lawfully reviewed only the manner in which the complaint had been handled and had no power to require reconsideration of the substantive decision or to permit a fresh disciplinary process. The central issue was the ambit of the Ombudsman’s powers under sections 21 to 26 of the Courts and Legal Services Act 1990, particularly section 23(2A), and the Tribunal’s jurisdiction to continue.

1. Judicial review dismissed. The court rejected the challenge both to the Ombudsman’s exercise of power and to the Solicitors’ Disciplinary Tribunal’s jurisdiction to continue the matter.
2. Under section 23(2A) of the Courts and Legal Services Act 1990, the Ombudsman may recommend that a complaint be reconsidered by the professional body. The statutory scheme does not confer an express power to refer only a particular aspect of the complaint or to restrict the ambit of the reconsideration. A recommendation cannot therefore be qualified so as to prevent the regulator from reconsidering the matter as a whole.
3. The Ombudsman’s role is supervisory. It is to assess whether the professional body has investigated and decided the complaint with the proper level of care and whether the result falls within the bounds of reasonableness. The Ombudsman does not assume the regulator’s substantive disciplinary function or determine whether professional misconduct should ultimately be established.
4. A recommendation to reconsider may arise from concern about the manner in which the complaint was handled, the underlying merits and impact of the conduct, or both. Once made, the matter must return to the professional body to discharge its statutory functions. The reconsideration may lead to a different result, including referral to the Solicitors’ Disciplinary Tribunal.
5. The Ombudsman’s letter was unhappily expressed, but, read as a whole, it was sufficiently clear that reconsideration was not confined to providing an explanation for the earlier decision. The court also observed that early intervention in disciplinary processes is very rare and that the ordinary process should continue, subject to the claimant’s ability to raise any prejudice or unfairness caused by delay.
6. The claimant was ordered to pay costs of £13,912 to the Tribunal, £5,000 to the Law Society and £3,000 to the Ombudsman, all sums being inclusive of VAT where stated.

Not an appeal. The judgment concerned a first-instance application for judicial review of the Legal Services Ombudsman’s recommendation and the Solicitors’ Disciplinary Tribunal’s jurisdiction to continue.