Asghar & Co Solicitors, R (on the application of) v The Law Society

A specialist professional adjudicator is entitled to make evaluative findings about the quality of a solicitor’s advice, and the Administrative Court should be slow to interfere where the conclusion is rational and legitimate. Judicial review generally examines the material before the decision-maker. After-acquired evidence cannot ordinarily establish that the original decision was unlawful, subject to exceptional circumstances. Permission may nevertheless be granted where the decision appears arguably to contain a material factual error or where the reasoning is reasonably open to challenge.

A firm of solicitors sought permission for judicial review of two decisions by a Law Society adjudicator under Solicitors Act 1974, Schedule 1A. The adjudicator had found inadequate professional services in relation to advice given to two Afghan asylum-seekers.

In the first case, the adjudicator criticised the firm’s failure to give substantive advice about the issues relevant to an imminent Home Office interview. Permission was refused. In the second, the adjudicator found that the firm had failed to notify the client of the refusal of his asylum claim and right of appeal. Later-discovered documents suggested that the firm had ceased acting before the refusal letter was issued. Permission was granted, and the decision was subsequently agreed to be quashed and reconsidered.

1. CO/2885/2007: Permission to apply for judicial review was refused. The adjudicator was a specialist tribunal entitled to assess what advice a solicitor should reasonably have given. It was rational and legitimate to conclude that advice merely to avoid the Home Office interview was inadequate, since substantive advice about the strengths and weaknesses of the asylum claim was relevant if the client attended. Earlier advice about changed circumstances did not answer the criticism because the position required reconsideration in June 2004.
2. CO/2886/2007: Permission was granted. The adjudicator had assumed that the refusal letter was on the firm’s file and had inferred that the firm received it. A later letter showed that the firm had probably ceased acting before the refusal, making the factual basis of the finding arguably erroneous. The adjudicator was also arguably open to criticism for failing to address material in the Home Office interview notes indicating that the change of solicitors was already known.
3. The court rejected the attempt to rely simply on after-acquired information. The adjudicator had to decide the matter on the evidence supplied to him, and no exceptional circumstances of the kind considered in E v Secretary of State for the Home Department [2004] 1 QB 1044 were advanced. The error was substantially attributable to the claimants’ failure to provide the relevant material earlier.
4. The court noted that the independent finding that the firm had taken inadequate instructions would remain even if the second finding were quashed. Damages could not be awarded. The parties subsequently consented to the decision in CO/2886/2007 being quashed and reconsidered, with no order for costs.