Crawford, R (on the application of) v The Legal Ombudsman & Anor

A decision of the Legal Ombudsman may be challenged only on conventional judicial-review grounds. The court must not substitute its own view of what is fair and reasonable. However, a decision is unlawful where its reasoning is logically incapable of supporting its conclusion. An adverse inference cannot logically be drawn from failure to provide a document if the decision-maker recognises that the document may never have existed. A decision must also identify the service that was provided, the service that ought to have been provided, and why the difference justifies the remedy imposed.

The claimant, a barrister, sought judicial review of the Legal Ombudsman’s decision concerning a complaint by the interested party about advice given at a conference. The Ombudsman found that only limited advice had been provided and directed a refund of half the fee.

The challenge alleged Wednesbury unreasonableness. The central issue was whether the Ombudsman had rationally reasoned from the absence of contemporaneous notes to the conclusion that inadequate advice had been given.

1. Statutory framework. Part 6 of the Legal Services Act 2007 establishes a scheme intended to resolve complaints quickly and informally. Under section 137(1), the complaint is determined by reference to what, in the Ombudsman’s opinion, is fair and reasonable in all the circumstances. The Ombudsman may consider inadmissible material, determine matters on the information supplied, and draw inferences from a failure to provide requested information.
2. Standard of review. The court does not decide the merits afresh or substitute its view for that of the Ombudsman. The decision may be quashed only if it is unreasonable in the Wednesbury sense, including where its reasoning is not logically capable of supporting its conclusion.
3. Irrational reasoning. The Ombudsman treated the absence of notes as supporting an adverse inference about the extent of advice. Yet the decision also recognised that it was the barrister’s prerogative not to take notes and that he might not have done so. If no note existed, no inference could logically be drawn from its absence about what it would have recorded or about the advice given. The reasoning therefore could not support the finding of poor service.
4. The Ombudsman’s alternative justification was not the reasoning adopted in the decision. In any event, the decision did not identify what advice had been given, what advice ought to have been given, or why the advice was limited so as to justify depriving the claimant of half his fee.
5. The decision was irrational and was quashed. The matter was remitted to the Ombudsman for further consideration in light of the judgment.

Permission to apply for judicial review was granted by Eder J on 11 September 2013. The present judgment determined the first-instance judicial review claim.