Bisnauthsing, R (on the application of) v The Legal Complaints Service

The court reviewing a professional-services adjudication applies conventional public-law standards, including irrationality and failure to take account of relevant considerations. The regulator and its adjudicator are the judges of the relevant professional standards, and the court is slow to interfere with an assessment dependent on professional experience. Inadequate service may be established in specific respects, even where other work was competently performed. Factual inaccuracy by a complainant does not invalidate compensation unless it undermines the findings actually made or makes the decision irrational. Apparent bias is assessed by asking whether a fair-minded and informed observer would conclude that there was a real possibility of bias; waiver may also arise where a party, with the relevant material available, fails to object before the decision. The claim was dismissed.

The claimant, a solicitor, sought judicial review of an adjudicator’s amended decision made for the Legal Complaints Service on 5 December 2008. The adjudicator found that the claimant had provided inadequate advice and had failed to provide costs and client-care information, and directed payment of £1,000 compensation.

The claimant alleged irrationality, failure to consider material matters, improper compensation for an allegedly dishonest complaint, apparent bias, and a lack of causal connection between the service failures and the complainant’s distress. The defendant also contended that the claim was out of time.

1. The application was dismissed. The adjudicator’s decision was not irrational, contrary to principle or otherwise unlawful.
2. Under section 37A and paragraphs 1(1) and 2(1)(c) of Schedule 1A to the Solicitors Act 1974, the regulator had a wide discretion where it appeared that professional services had not been of the quality reasonably expected of a solicitor. The discretion could be exercised in respect of particular aspects of the service, notwithstanding that other work had been done.
3. The assessment of professional standards was for the regulator and adjudicator, subject to conventional public-law review. The court would be slow to interfere with a decision dependent on professional experience and expertise. The findings that the claimant had not given adequate advice and had not provided costs or client-care information were supported by the evidence and were not irrational.
4. Any inaccurate account given by the complainant did not undermine the decision. If the inaccuracies were innocent, they did not make the decision irrational. Allegations of deliberate dishonesty were unsupported, and the claimant had not advanced them before the adjudicator despite having an opportunity to comment on the relevant material. The adjudicator was therefore not required to investigate them or draw the inferences proposed by the claimant.
5. The assessment of whether the service failures caused distress and inconvenience, and of the appropriate compensation, fell within the adjudicator’s expertise. The award of £1,000 was far from irrational.
6. The apparent-bias challenge failed. Applying Porter v Magill and Sengupta v the GMC and Others, there was no basis for concluding that the adjudicator could not approach the reconsideration with an open mind. The claimant had also waived the objection by failing to raise it when the relevant material was available, consistently with Locabail.
7. Although the court considered that the claim was outside the three-month period and would have refused an extension under Part 3 of the Civil Procedure Rules, that issue was unnecessary to the result. Permission to appeal was refused. The claimant was ordered to pay the defendant’s costs, subject to detailed assessment if not agreed.

• High Court (Administrative Court): judicial review claim dismissed. Permission to appeal to the Court of Appeal refused.