Hafiz & Haque Solicitors, R (On the Application Of) v Legal Ombudsman

An ombudsman determining a complaint by reference to what is fair and reasonable has a broad evaluative discretion, but must take account of material evidence and reach a logically defensible conclusion. Judicial review does not permit the court to substitute its own assessment. The court may intervene where the ombudsman ignores material considerations, relies on an unsupported assumption, or reaches an illogical conclusion. Where the evidence raises a real possibility that a relevant explanation or document exists, the ombudsman may be required to obtain and consider it before determining the complaint.

The claimant solicitors sought judicial review of a decision by the Legal Ombudsman concerning a complaint by their former client, Tahira Qureshi, about representation at an asylum screening interview. The Ombudsman found that the solicitors had not attended the interview and directed them to reduce their fees by £300 and pay £100 for the impact of their non-attendance.

The claimant argued that the decision was irrational because the evidence indicated that the client had been told that the solicitors would not attend the screening interview, that the fixed fee might not cover attendance, and that representation might not be necessary at that preliminary interview. The central issue was whether the Ombudsman’s reasoning was legally flawed.

1. The claim succeeded in part. The court quashed the part of the Legal Ombudsman’s decision concerning non-attendance at the screening interview, including the £300 fee reduction and the £100 payment.
2. Part 6 of the Legal Services Act 2007 establishes an informal complaints scheme. Under section 137(1), the complaint is determined by reference to what, in the opinion of the ombudsman, is fair and reasonable in all the circumstances. The Ombudsman has considerable latitude, may rely on material not admissible in court, and may draw appropriate inferences.
3. That discretion does not displace ordinary public law controls. The court does not decide what conclusion it would have reached. It reviews whether the decision is legally flawed on established public law grounds.
4. The Ombudsman was entitled to conclude that the solicitors had not attended the screening interview. However, two parts of the reasoning were unsustainable. The file note explained the distinction between the screening and substantive interviews and indicated that the solicitors might not attend the screening interview. It therefore undermined the assumption that the fixed fee necessarily included attendance and the suggestion that the solicitors had only later decided that representation was unnecessary.
5. The evidence also indicated that the client might have been told that the solicitors would not attend. On the balance of probabilities, the relevant attendance note had been enclosed with the solicitors’ letter. The Ombudsman’s statement that there was no evidence of such an explanation was therefore irrational. Alternatively, if the note had not been received, the Ombudsman erred by failing to obtain it when the letter expressly referred to it.
6. The decision-making process was consequently flawed by irrationality and failure to have regard to material considerations. The impugned findings and remedies were quashed.

The judgment itself records that permission for judicial review was granted by Jay J after an oral hearing. The present court determined the substantive claim and quashed the impugned part of the Ombudsman’s decision.