Universal Solicitors (a firm) v Legal Ombudsman

An ombudsman may refer a complaint back to the authorised person where it had already been made to that person but was not received or resolved. Sending on a further copy is a ministerial act, not an exercise of adjudicative jurisdiction. Legal advice is not poor service merely because it later proves wrong, particularly in a difficult or uncertain area. However, an ombudsman may assess the correctness or reasonableness of legal advice where, on the material before it, the advice was obviously bad.

Universal Solicitors appealed from a decision of the High Court concerning the Legal Ombudsman’s handling of a complaint about immigration advice. The proposed appeal challenged both the Ombudsman’s jurisdiction to suspend consideration and refer the complaint to the firm, and its assessment that advice about an in-country appeal to the First Tier Tribunal was obviously bad.

The complaint had previously been sent to the firm, but the firm said it had not received it and then declined to consider it when the Ombudsman sent it again. The Ombudsman reached its decision on the material supplied by the complainant. The issue was whether either proposed ground had a prospect of success.

1. Permission refused. The proposed appeal had no prospect of success.
2. Section 126 and rule 4.2(a) permitted the Ombudsman to entertain a complaint where it had not been resolved within eight weeks after being made to the authorised person. Rule 4.2(a) expressly included refusal by the authorised person to consider the complaint under rule 4.3.
3. Referring the complaint to the firm was not an exercise of jurisdiction. The complaint had already been made to the firm, and the Ombudsman merely sent another copy after the first had miscarried. The associated suspension meant only that the Ombudsman deferred entering upon its jurisdiction until the firm had an opportunity to consider the complaint.
4. A solicitor’s advice is not necessarily poor service merely because it proves to be wrong. The assessment must allow for difficult and uncertain questions of law and must be made with care. Nevertheless, there is no absolute bar on the Ombudsman forming a view on the correctness or reasonableness of legal advice. Where the advice was obviously bad, the Ombudsman could so find.
5. The Basnet line of argument did not assist. The firm had not taken that point, the appeal had been argued on a different basis, and the authorities then established that the Tribunal lacked jurisdiction: see Forester. The possibility that jurisdiction might have existed if the correct argument had been made did not make the advice reasonable when that argument was not advanced and the current authorities were against it.
6. The Ombudsman was entitled to decide the quality of the advice on the arguments and material put before it. The firm had refused to engage in the process, so the material came entirely from the complainant.

• Court of Appeal (Civil Division): Permission to appeal was refused. The proposed appeal had no prospect of success.
• High Court of Justice, Queen’s Bench Division: The decision under appeal was made by the High Court. Its citation and precise order were not stated in the judgment.