Keane v The Law Society (Rev 1)

A published six-month period for professional-services complaints is not an absolute statutory deadline where the scheme permits discretion. It must be applied sensibly and practically. An adjudicator’s reasons are adequate where they address the objections raised and explain why the complaint should proceed. Under Solicitors Act 1974 Schedule 1A, an adjudicator may direct a solicitor found to have provided inadequate professional services to bear the expense of assessing the solicitor’s bill, despite the ordinary costs regime in section 70. An unfortunate adverse remark does not establish apparent bias unless a fair-minded and informed observer would consider that the adjudicator might not be impartial.

The claimant, a solicitor, sought judicial review of decisions by a Legal Complaints Service adjudicator concerning complaints by her former client about inadequate professional services. The adjudicator found failures in costs information, advice, client care and billing. He directed the claimant to provide an itemised bill and to apply at her own expense for detailed assessment.

The claimant challenged the decisions on delay, the adjudicator’s power to allocate assessment costs, irrationality and apparent bias. The central issues were whether the complaint could proceed despite the delay and whether Schedule 1A to the Solicitors Act 1974 authorised the costs direction.

1. Delay. The six-month period in the Law Society’s published guidance was not an absolute deadline. It permitted a discretion, to be exercised sensibly rather than mechanically. The adjudicator was entitled to focus on the objections actually advanced by the claimant’s experienced solicitors. His decision to investigate the complaint was not irrational, and his reasons were legally adequate.
2. Supplemental reasons. The court should be cautious about reasons supplied for the first time in response to judicial review because of the risk of ex post facto rationalisation: [1996] 2 All ER 302; [2001] EWHC 538 (Admin). In this case the supplemental evidence did not contradict the decision, came from the single decision-maker, responded to an issue raised in the proceedings, and supported a conclusion the court would independently have reached.
3. Assessment costs. Although the reference to section 70(1) was a slip, the adjudicator intended section 70(2). Schedule 1A paragraph 2(1)(d) authorised a direction requiring the solicitor, at her own expense, to have the bill assessed. Section 70 governed the general allocation of assessment costs, whereas Schedule 1A addressed the specific situation of inadequate professional services. The direction was not irrational merely because the eventual assessment might produce limited practical benefit.
4. Bias. The adjudicator’s suggestion that the claimant might inflate her charges was unfortunate and showed an unfavourable impression, but did not establish apparent bias. Permission to amend the claim to add that ground was refused. The judicial review claim was dismissed.