Adam Wagner has successfully defended the Legal Ombudsman in its first contested Judicial Review.
The Claimant, a former solicitor, judicially reviewed the Ombudsman’s decision to reduce his fees due to concerns over the services he had provided to a client and particularly relating to the terms of a Conditional Fee Agreement. He challenged the decision on grounds of jurisdiction (that the complaint was out of time and outside of the ambit of the Ombudsman rules) and rationality.
Mr Justice Phillips sitting in the Administrative Court rejected the claim on all grounds, emphasising the wide ambit of the Ombudsman’s powers under statute.
On jurisdiction, he confirmed the “wide ambit” of the Ombudsman rules and that “there is no reason to read into the rule an exclusion of complaints relating to the amount charged for services”. It would, he said, be a “an artificial and unworkable distinction” if the Ombudsman “could consider the quality and levels of services but not issues of wrongful charging or overcharging” (§21)
Further, the complaint was in time as it was not brought until an invoice had been rendered. The Judge ruled that “[t]o require a client to bring complaints in relation to poor service or poor advice in relation to ongoing fees prior to being invoiced for those fees would be unrealistic and indeed absurd” (§29).
On rationality, the Judge ruled that:
[the Ombudsman’s] decision was based firmly upon the Ombudsman’s assessment of the manner in which the Claimant dealt with [the complaint’s] liability for costs and the financial implications of discontinuing. It is certainly the case that the contractual arrangements set out in the retainer letter and the attached CFA were confusing and open to more than one interpretation. In my judgment it was entirely open to the Ombudsman, exercising her wide discretion as to what is fair and reasonable in all the circumstances (being the test set out in s. 137 of the Act and rule 5.36 of the Scheme Rules) to take into account the fact that there appeared to have been little or no explanation or advice provided to [the Complainant] in relation to such matters in November 2009″.
