Rosemarine, R (on the application of) v The Office for Legal Complaints

The Legal Ombudsman’s assessment of what is fair and reasonable attracts substantial judicial deference. Judicial review does not permit the court to substitute its own view. Intervention is justified only where the determination falls outside the range of reasonable conclusions, or where the process is unfair or legally flawed.

The Ombudsman may treat connected matters as falling within an informal complaint, provided the overall process remains fair. A lawyer must have a fair opportunity to respond before a final determination. A later independent decision-maker may cure concerns arising from an earlier officer’s apparent bias.

A barrister sought judicial review of a determination by the Legal Ombudsman concerning a former client’s complaint. The Ombudsman dismissed complaints about the barrister’s substantive advice and fees, but found poor service in the handling and response to the complaint, awarding compensation.

The challenge alleged Wednesbury unreasonableness, lack of jurisdiction, procedural unfairness and actual or apparent bias. Permission was granted on limited grounds. The defendant conceded that the Ombudsman had exceeded his powers in deciding that the barrister could not pursue outstanding fees. The remaining issue was whether the complaints-handling determination should be quashed.

1. Outcome. The four grounds challenging the complaints-handling determination failed. The claim was dismissed, save to the extent conceded in relation to the outstanding fees decision.
2. The scheme under Part 6 of the Legal Services Act 2007 requires complaints to be resolved swiftly and informally by reference to what, in the Ombudsman’s opinion, is fair and reasonable in all the circumstances. The Ombudsman has considerable latitude and may apply his own assessment of good practice.
3. The court must not substitute its own view for that of the Ombudsman. The relevant question is whether the determination fell outside a reasonable range of possible conclusions. There was no single legally correct test of necessity which the Ombudsman was required to apply when deciding whether the barrister’s conduct was fair and reasonable.
4. The Ombudsman was entitled to find that the barrister’s repeated insistence on receiving all requested documents before answering a straightforward complaint was obstructive and prolonged. He was also entitled to read the response letter as containing repeated allegations and innuendo of fraud and illegality, and to regard its tone as offensive and unprofessional. Bramall v Law Society [2005] EWHC 1570 did not assist, because it concerned a lawyer’s vigorous defence during a formal investigation rather than the response to a client under an internal complaints procedure.
5. The statutory scheme and rules did not require a complaint to be pleaded with technical formality. Connected matters could be brought within the same complaint, subject to overall fairness. The complaints-handling issues were sufficiently identified, and the barrister had a fair opportunity to respond before the final determination.
6. The failure to respond promptly to a request for summary dismissal was accepted as an error but did not render the process unfair or cause substantial prejudice. The final decision was transferred to the Chief Ombudsman, so the earlier officer’s unfortunate internal emails did not establish that the final determination was affected by actual or apparent bias.

This was a first-instance judicial review claim. Permission was initially limited by HHJ Pelling QC and later renewed on restricted grounds before King J. The defendant conceded the challenge concerning the outstanding fees determination.