Md Abu Sufian, R (on the application of) v Legal Ombudsman

The Legal Ombudsman has a broad discretion to determine complaints by reference to what is fair and reasonable in all the circumstances. Judicial review remains supervisory. The court applies a demanding rationality threshold and does not substitute its own assessment of the merits.

Procedural fairness must reflect the scheme’s informal and inquisitorial character. The respondent must receive the gist of the allegations with sufficient particularity to provide a meaningful opportunity to comment, but need not receive every item of evidence or a formally pleaded case. A material, objectively verifiable mistake of fact may justify intervention where the claimant was not responsible for it and it materially influenced the decision.

The claimant, a direct access barrister, challenged two decisions of the Legal Ombudsman concerning a client’s complaint about costs information, a backdated client care letter, and delayed notification of a costs award. The Final Decision found unreasonable service and directed a refund and waiver of costs. The Acceptance Decision permitted the client to accept the Final Decision after the deadline under Rule 5.51 of the Scheme Rules.

The claimant alleged procedural unfairness, jurisdictional error, irrationality, disproportionate interference with contractual rights, and material mistakes of fact. The central issues were whether the Ombudsman had acted within the statutory scheme and whether any public law error justified quashing either decision.

1. Applicable supervisory principles. The Legal Ombudsman must determine complaints by reference to what, in the Ombudsman’s opinion, is fair and reasonable in all the circumstances. The scheme deliberately permits speedy and informal adjudication, with considerable discretion and without strict adherence to legal principles. The Ombudsman may fashion redress that modifies contractual rights, including by limiting fees.
2. Fairness and jurisdiction. The Ombudsman was not required to disclose the original complaint where the detailed letter of 13 February 2023 gave the claimant the gist of the allegations with sufficient particularity and a meaningful opportunity to respond before decision. The Ombudsman could clarify and investigate related immigration matters. Section 126(1) of the Legal Services Act 2007 did not require technical correspondence matching every matter investigated. Rule 4.4’s six-month limit was not triggered because the claimant’s written response lacked the prescribed warning and contact details.
3. Late acceptance. Rule 5.51 was followed. Whether there were sufficient reasons for late acceptance was primarily for the Ombudsman. The reasons given—genuine belief that acceptance had already occurred and a short delay—were rational.
4. Review standards. The court would intervene only for a public law error, including irrationality in the Wednesbury sense, procedural unfairness, or a material mistake of fact. Proportionality was not a freestanding domestic ground. Article 6 added no materially different requirements because the common-law minimum standards reflected its essential requirements.
5. Mistake of fact and disposition. The Ombudsman mistakenly concluded that the 8 September 2018 client care letter contained no fee information. The mistake was objectively verifiable, was not attributable to the claimant, and materially affected both the finding of unreasonable service concerning costs information and the remedy. Those aspects of the Final Decision were quashed and remitted for reconsideration. The challenge to the Acceptance Decision was dismissed.

These were first-instance judicial review proceedings in the Administrative Court. The claimant’s initial permission application was refused by Dexter Dias KC, Deputy High Court Judge, on 16 April 2024. Foster J granted permission on renewal on 18 July 2024. The present court quashed specified parts of the Final Decision and directed reconsideration, while dismissing the challenge to the Acceptance Decision.