Adams, R (on the application of) v Legal Ombudsman

A Legal Ombudsman may dismiss a complaint in whole or in part under its scheme rules where the complaint, or its central issue, is better suited to determination by a court, or where there is no compelling reason to investigate peripheral matters. The Ombudsman’s broad case-management discretion must be exercised rationally and within the statutory scheme. A preliminary decision permitting referral for investigation does not ordinarily create a legitimate expectation that the complaint will inevitably be investigated. Judicial review requires an arguable ground with a realistic prospect of success; disagreement with the decision, unsupported allegations of dishonesty, and statistics showing changing dismissal rates do not establish irrationality or apparent bias.

The claimant sought permission to judicially review decisions of the Legal Ombudsman dated 31 May 2023. The Ombudsman had dismissed complaints concerning counsel’s advice about the proposed sale of an estate property under rule 5.7(g), as the issues were better suited to determination by a court, and dismissed related service complaints under rule 5.7(n).

The claimant alleged irrationality, apparent bias and breach of a legitimate expectation arising from an earlier Ombudsman decision permitting referral of the complaint for investigation. He also challenged the operation of the scheme’s fee provisions under rules 5.7, 6.1 and 6.2 and relied on R (on the application of Rosemarine) v Office for Legal Complaints. The central issues were whether the Ombudsman had acted outside its discretion and whether the earlier decision required a later investigation.

1. Permission refused. All grounds were dismissed and certified as totally without merit.
2. The dismissal under rule 5.7(g) was rational. Complaints about the correctness of counsel’s advice and whether an estate transfer breached self-dealing rules involved issues of fact and law, including what information had been available to counsel. Those matters were properly suited to determination by a court, including possible proceedings to set aside the transfer.
3. The dismissal of complaints 4–7 under rule 5.7(n) fell within the Ombudsman’s wide discretion. Although the alleged dishonesty was serious and could not simply be treated as peripheral, there was no evidential basis for it. The Ombudsman was entitled to consider the remaining service complaints in the round after declining to investigate the central complaints.
4. The claimant’s construction of the fee rules was rejected. Rule 6.2 imposed an absolute bar to charging a case fee where its conditions were met, but rule 6.1 conferred a broader discretion in cases dismissed or discontinued under rule 5.7. That structure was authorised by Legal Services Act 2007, section 136(5)(a), which permitted rules allowing charges to be reduced or waived in specified circumstances.
5. Rosemarine supported the proposition that a complaint may be dismissed in whole or in part. It did not prevent the Ombudsman from considering whether the remaining complaints were peripheral and should also be dismissed.
6. There was no arguable apparent bias. Statistics concerning the increased use of rule 5.7 dismissal could have several explanations and did not establish bias or dishonesty.
7. The earlier decision permitting referral did not amount to a clear representation that the complaints would inevitably be investigated. Such a representation would unlawfully fetter the Ombudsman’s later discretion. The Ombudsman was entitled to refine the complaints and reconsider them under rule 5.7.

This was a renewed application for permission to bring judicial review proceedings. The application was refused by the High Court (Administrative Court), and the claim was certified as totally without merit.