Deputy Chief Legal Ombudsman v Young

A failure without reasonable excuse to comply with a notice requiring documents or information under the Legal Services Act 2007 may be dealt with as if it were contempt of court. The court has a broad discretion over inquiry and sanction. Its approach should serve both coercive and punitive purposes, with the principal immediate aim ordinarily being compliance. The court must establish an adequate factual picture, allow a fair opportunity to explain the default, and consider whether custody would be disproportionate or counter-productive. Relevant factors include the seriousness and duration of the default, the availability of the material, prejudice caused, mitigation, subsequent compliance and the defaulter’s means. Sanctions may include imprisonment, a suspended committal order, a fine, costs, or no penalty in an appropriate case.

The Deputy Chief Legal Ombudsman applied under sections 149(3) and 149(4) of the Legal Services Act 2007 concerning a solicitor’s failure to comply with a notice under section 147 requiring documents and information needed to investigate clients’ complaints. The defendant initially failed to respond to repeated communications and did not produce the requested material. Proceedings were issued using the Part 8 procedure. Following the court’s intervention, documents were located, the investigation was completed, and the default was treated as purged. The issues included the appropriate procedure and venue, whether the court should inquire into and deal with the default, and the proper approach to sanction.

1. Procedure and venue. A Part 8 claim was, in principle, appropriate for proceedings under section 149, although the court could direct conversion to Part 7 if substantial factual disputes arose. Proceedings could properly be brought before a single judge in the Administrative Court. Regional Administrative Court offices could also be used, since the proceedings concerned non-compliance with an ombudsman’s information requirement rather than solicitor discipline as such.
2. General approach. The court’s powers under section 149 should be approached by reference to the general principles governing contempt. The maximum term of imprisonment was two years. The court could suspend committal for a fixed period and on specified terms. The choice between immediate and suspended committal had to be made at sentencing. Fines and costs were also available, and the amount of any fine required attention to the defaulter’s means.
3. The power under section 149(3) to inquire was discretionary. The power under section 149(4) to deal with a defaulter was also discretionary, even where failure without reasonable excuse was established. The court should consider the statutory purpose, which addresses harm caused by omission and seeks effective investigation of complaints. Immediate imprisonment may be disproportionate or counter-productive where the defaulter remains capable of producing the material.
4. The court should normally pursue both coercive and punitive purposes. It should assemble an adequate factual picture, give the defaulter a fair opportunity to provide evidence, and deal with the matter promptly once the inquiry is complete. Parallel disciplinary proceedings would rarely justify delaying the section 149 process.
5. The defendant had failed without reasonable excuse to comply with the section 147 notice. His default was serious because the material had remained available to him, he had ignored repeated requests, and his conduct caused delay, expense and distress. His later co-operation, apology, mitigation and the recovery of the documents meant that the quasi-contempt had been purged and imprisonment was unnecessary. The application succeeded. The defendant was fined £5,000 and ordered to pay the ombudsman’s costs, including a further sum of £4,497.