Bisnauthsing, R (on the application of) v The Legal Complaints Service [2010] EWHC 2918 (Admin)

Case No CO/2291/2009[2010] EWHC 2918 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of Justice
Strand
London WC2A 2LL
TUESDAY, 26TH OCTOBER 2010
B e f o r e:
HIS HONOUR JUDGE BIDDER QC
Between
THE QUEEN ON THE APPLICATION OF BISNAUTHSINGClaimantv
Between
THE LEGAL COMPLAINTS SERVICEDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
MR A RIZA QC (instructed by KAYDERS) appeared for ClaimantMR B HOOPER (instructed by MILLS & REEVE) appeared for Defendant
J U D G M E N TDate 2010-10-26

JUDGE BIDDER QC:

[1]I have had an application at the last possible moment, indeed in reply to Mr Riza's reply to Mr Hooper's arguments, to have an opportunity for the solicitor instructing Mr Riza to obtain a letter to which reference is made in the papers on the basis that we ought to see what the letter contains. In my judgment it is far too late for a party to seek to introduce further new evidence at this stage. The parties expected this matter to be dealt with today; I have expected to give a judgment today. We are already well over the time allocated for this hearing and in my judgment it is not appropriate for me to allow a further adjournment for that letter to be obtained with the probability that there will be further argument and increased costs.[2]This is an application for judicial review of a decision of an adjudicator dated 5 December 2008, which adjudicator was acting on behalf of the then Legal Complaints Service. The complaint was notified to the claimant by a letter dated 8 December 2008. The claimant's claim form was received in the Administrative Court Office on 9 March 2009. The adjudicator was appointed by the Legal Complaints Service, who was exercising powers delegated to them by the Law Society, who are the correct defendants to this claim.[3]At the time of the challenged decision the Legal Complaints Service ("the LCS") regulated the adequacy of professional services provided by solicitors pursuant to section 37A of, and schedule 1A to, the Solicitors Act 1974. Professional conduct, contrasting that with the adequacy of professional services, was separately regulated by the Solicitors Regulation Authority. As of 6 October 2010 the provisions dealing with complaints to the Legal Complaints Service, and that body itself, as I understand it, were repealed and the LCS was replaced by the Office For Legal Complaints. Paragraph 1 of schedule 1A of the 1974 Act states:
"the council may take any of the steps mentioned in paragraph 2 with respect to a solicitor where it appears to them that the professional services provided by him in connection with any matter in which he or his firm have been instructed by a client have, in any respect, not been of the quality which it is reasonable to expect of him as a solicitor."
[4]I should stress the words "where it appears to them", granting a wide discretion to the Council of the Law Society and through them the Legal Complaints Service and the adjudicator, and the words "in any respect", indicating that it is not sufficient for a solicitor to show that in some respects he has given good service, and has had the interests of his client very much at heart, if in other respects it appears to the council that the services have not been of the quality which it is reasonable to expect of him as a solicitor.[5]The steps referred to in paragraph 1 are set out in paragraph 2(1) of schedule 1A, and include:
"(c) directing the solicitor to pay such compensation to the client as the council sees fit to specify in the direction."
Again, a wide discretion as to the compensation which is directed to be paid.[6]At all material times the claimant was a solicitor of the Supreme Court in private practice. On 2 August 2007 he met Mr Moorghen, "the complainant hereafter, and agreed to act for him in relation to an appeal about the complainant's immigration status. The appeal was to the Asylum and Immigration Tribunal. The complainant was at that time an illegal immigrant; he had ceased to have leave to remain in this country. He was, therefore, liable to detention and removal having lost his appeal against refusal of leave to remain as a student on 5 July 2007.[7]The claimant, who had left the firm with whom he had previously been employed and was effectively between firms, told him that the complainant could appeal out of time and indicated that he could lodge an appeal on behalf of the complainant. The claimant maintains that he agreed to act at that stage pro bono, but accepted £1500 from the complainant on the basis that he could introduce the complainant to the firm where he used to work, but that funds were necessary to fund his appeal privately as that firm did not have a legal aid franchise for immigration matters. The money was to be returned if leave to appeal was not granted.[8]It is not in dispute in these proceedings that no receipt was given to him at that time for the £1500. It is not now in dispute that with the help of counsel -- who made a short statement which the claimant ultimately sent to the LCS, his only response to an invitation to make further submissions on a reconsideration of this matter, which led to the challenge decision -- he drafted the grounds of appeal and an application to extend time.[9]The claimant then lodged the documents at the AIT on 6 August 2007. The grounds of appeal are at pages 60 to 64 of the bundle. They bear the complainant's name, but are not signed by him. They are dated 4 August 2007.[10]Some weeks later the complainant was arrested by the police and detained. He was obviously very upset. He told the police that he believed that an appeal was ongoing in relation to his immigration status. Pausing there, that is obviously entirely consistent with the account that is effectively common ground of the original meeting between him and the claimant. He told the LCS that when he was arrested he was told that nothing had been done by the claimant in relation to the appeal, and that can be seen at page 30A of the bundle.[11]He sent a letter to the claimant, dated 24 September 2007. That letter is at page 95 and in that letter the complainant claimed that the claimant never did his job. It alleges that because of him the complainant was arrested and detained by the immigration authorities. It acknowledges that he had, and I quote, so that a flavour can be obtained of the phraseology of the letter:
"Returned my brother the money of £1500."
He also says in the letter:
"I am waiting for the rest of the money in the next 7 days or the sum of £1500 because you are incompetent and has misled me to believe that you are an expert in the immigration."
The letter concludes:
"I would like to hear from you in one week. If you do not reply me I will report you to the law of society."
That is exactly what he wrote, and clearly the complainant's written English was not the best.[12]By a letter of 4 October 2007, which is at page 93, the complainant complained formally to the LCS. A case worker, a lady called Suzanne Khaira, investigated the matter and referred the complaint, together with the results of her investigation, to the adjudicator, a Mr Nigel Butcher.[13]His first report is dated 18 June 2008 and his findings were two fold: namely that the claimant failed to follow his client's instructions or provide him with adequate advice; and second, that he failed to provide his client with any costs or client care information.[14]By then the LCS had inquired of the AIT whether any appeal had been lodged on behalf of the complainant on or around 6 August 2007. The case worker was told that there had been none.[15]A telephone conversation had taken place on 5 November 2007 between the first LCS case worker, because there was a second one, as will appear, and the complainant. That is at page 100. The complainant volunteered that he had letters from the claimant and agreed to send them to the LCS. As a result, by a handwritten letter of 9 November 2007 the complainant sent to the case worker a letter dated 4 October 2007 that he had received from the claimant in response to his letter of 24 September 2007. That letter sets out what the claimant had done on behalf of the complainant and attached the typed grounds of appeal. In the letter of 4 October 2007 the complainant says that an application had been lodged "by me in person on 6 August 2007." It was that reference that misled the case worker in her investigation with the AIT.[16]In his handwritten letter of 89 November 2007 the complainant says that he received those documents on 13 October 2007 and it seems that as a result of an error at the LCS those documents were not before the adjudicator on the first determination of this matter. The case worker did not appreciate the significance of the grounds of appeal at that time.[17]As a result the adjudicator made a finding that no action had been taken by the claimant on behalf of the complainant. Before the adjudicator was seized of the matter an attempt had in fact already been made to conciliate the matter and the complainant had agreed to accept £1,000 from the claimant to settle the matter. There is an issue as to why the claimant did not accept that money. The options are that he did not accept that the £1,000 payment was in relation only to the LCS involvement and not the contemporary and separate Solicitors Regulation Authority. The claimant's account is that he was not satisfied that the money was actually going to the person that he had helped and he did not pay the money. As a result the adjudicator took the view that the service provided by the claimant had been inadequate, and had caused the complainant a very serious amount of distress and inconvenience. He thought it came within the "extremely serious" category of the LCS Indicative Awards Guidance, which can be seen at pages 126 to 129. He ordered the claimant to pay to the complainant £1,300.[18]After he had received the first decision letter of the claimant the complainant wrote to the LCS by letter on 25 June 2008, pages 40 to 41, suggesting that there had been manifest errors of fact in the adjudicator's decision. In particular, he referred to an AIT reference number. However, the AIT still did not confirm that there had been any appeal documents lodged by the claimant and as a result of adjudicator declined to alter his decision. That can be seen in his memorandum of 15 August 2008, which is at page 47 of the bundle.[19]At around this time, or shortly after this time, a new case worker, a Miss Rina Poselay, took over conduct of the file on behalf of the LCS. The AIT telephoned her having been approached by the claimant. He had been able to clarify the date on which the appeal had been made. He explained why his, the claimant's, name would not have been on the appeal document. The AIT explained that the complainant had instructed other solicitors after the claimant. Those other solicitors, called Raj Law, had written to the AIT on 28 September 2007 asking whether an appeal had been made, and if it had been, then to consider it withdrawn.[20]As a result of this new information the new case worker wrote to the complainant, that is page 50, and asked him to confirm whether the appeal application that had been submitted to the AIT on 8 August 2007 was prepared by the claimant. She also asked him whether he recalled signing an appeal application, and if he had, she asked him to explain why he considered that the claimant had done no work for him.[21]In response the complainant wrote a letter of 1 October 2008, which is at page 52. In that letter the complainant said that he could not confirm that the application was prepared by the claimant as he was unaware of that documentation having been processed and had not been informed about it, that is that it had been processed. He said he did not recall signing an appeal application.[22]The new case worker prepared a further report, page 2, dated 5 November 2008, to the adjudicator, including the missing documentation. It was sent to the claimant for his comments. No comments were received from him, apart from, and this is at page 53, he wrote a covering letter to the LCS, covering an attachment from learned counsel who had drafted the grounds of appeal to establish, if there was any doubt about it before, that he had indeed arranged for the drafting of grounds of appeal. He made no further comments on the new material that he had been invited to consider. He knew, because it was indicated that this was a reconsideration, that the same adjudicator was going to look at this matter again. I should also add that at page 24 in the new case worker's report she specifically refers to her letter to Mr Moorghen, the complainant, and his response, so he had the response from Mr Moorghen to the questions that had been asked arising out of the AIT's new material available to him at that stage.[23]The adjudicator reconsidered the complaint and made an amended decision dated 5 December 2008, which is the decision that the claimant seeks to review, and that decision is at pages 75 to 77. The adjudicator now found that the claimant had indeed made an application for leave to appeal out of time on behalf of his client, the complainant. He altered his findings. He no longer found the services provided by the claimant to be inadequate in that he failed to follow his client's instructions, but he still found that the claimant failed to provide the complainant with adequate advice and also with costs or client care information. He considered that the degree of distress and inconvenience should now be placed in the "serious" rather than the "extremely serious" category. He therefore amended his direction in relation to the compensation, to £1,000 from the £1,300 that he had ordered before.[24]The detailed grounds for the claim for judicial review are set out at pages 4 to 12. I consider that Mr Hooper, counsel for the defendant, is correct that neither the detailed statement of grounds nor the claimant's skeleton argument precisely identify the grounds for judicial review. To some extent, that has been rectified by oral submissions to me by Mr Riza QC.[25]However, concentrating on the detailed statement of grounds, paragraph 16 indicates that the investigation and adjudication were seriously flawed, because the investigation had failed to discover that the complainant had told untruths or had failed to disclose certain matters. It was alleged that it was untrue, first of all, that the claimant had not advised the complainant; secondly, that he had not lodged an out of time appeal on his behalf; thirdly, that there was a causal link between the detention and his distress and fourthly that had instructed his new solicitors to withdraw the appeal which had been arranged for him by the claimant. It is also contended that the adjudicator had made his findings on the flawed basis that the claimant had not disputed that he had not advised the complainant, and had done nothing.[26]Under paragraph 21.4 it was contended that because the claimant had made false and/or inaccurate allegations it was irrational and contrary to principle to award compensation to the claimant. Finally in paragraph 21.5 it is contended that the adjudicator's decision was bad for bias, in that in the light of his previous findings he had a duty to ask himself whether he was conscientiously capable of changing his mind. It was submitted that there was a real possibility that the adjudicator had left himself no room to change his mind, having regard to the terms of his opinion on a specific issue, as Mr Riza QC has made it clear, it is on the issue of whether the complainant had suffered distress and inconvenience.[27]The allegations of untruthfulness made against the complainant are amplified in Mr Riza QC's skeleton argument and he has further amplified those in his submission to me today. In their most simple form the defendant's submissions are that first of all the decision was lawfully open to the adjudicator on the materials before him. Secondly they contend that the judicial review claim is time barred and no good reason has been offered for the court to extend time, as the court has powers do under the court case management powers, part 3 of the Civil Procedure Rules, and in particular under 3.1(2)(a).[28]Mr Hooper contends, and I agree, the power to take steps, including the ordering of compensation against a solicitor in respect of inadequate professional services is granted by paragraph 1(1) of schedule 1A. I agree, and it is not seriously contended to the contrary, that it was a matter for the defendant acting through their adjudicator to decide subject only to Wednesbury review whether the professional services were of reasonable quality. Paragraph 1(1) contains the phrase "where it appears to them". As I say, it gives a wide discretion. It is also equally clear that the defendant may make a finding of inadequacy in respect of only certain, specific aspects of the professional services provided. Thus I do agree that it is of no assistance to the claimant for it to be argued, as in fact it is in both the detailed grounds and the skeleton argument, that the claimant did in fact advise the complainant that he should appeal out of time and that an application to appeal out of time was made on his behalf.[29]The adjudicator found that the claimant did not provide the complainant with costs or client care information, including a receipt for the money, and that is not in dispute in this case. It is for the defendant through the adjudicator to decide what the relevant professional standards are, subject only to Wednesbury review. As Richards J as he then was said in R ex parte Brammall v the Law Society [2005] EWHC 1570 Admin:
"in truth, the sole issue for the adjudication panel, [there was a panel at that stage rather than an adjudicator] was whether in the terms of section 37A and paragraph 1(1) of schedule 1A the services provided were in the relevant respect not of the quality which it is reasonable to expect of them as solicitors. The members of the panel were the judges of the relevant professional standards. The court will interfere with the panel's decision only on conventional public law grounds, including irrationality and failure to take into account relevant considerations. It will be slow to interfere in a matter that is so heavily dependent on the professional experience and expertise of the members of the panel."
It is not, as I say, challenged that the claimant failed to provide the complainant with any costs or client care information. It was entirely for the judgment of the adjudicator to determine whether such information should have been provided and it is wholly unarguable that his decision on that aspect of the case was either irrational or failed to take account of relevant considerations.[30]It is however disputed that the finding of the adjudicator that the claimant had failed to advise his client is supportable. In my judgment the adjudicator accurately noted in paragraph 2.3 of the challenge decision that there was:
"No evidence to show that the claimant advised Mr Moorghen what he was doing [and that is as regards the application in the immigration proceedings] or indeed gave him any substantive advice at this time. While the complainant contends now that he did give advice, he did not provide any evidence either in the form of an attendance note, a confirmatory letter or such like of what he had advised the complainant to do or what he had done on behalf of complainant."
No evidence was provided by the claimant to the adjudicator to contradict his finding of paragraph 2.5 of the decision that the claimant did not provide the complainant with any formal advice either at the outset or after he had lodged the application.[31]Thus, despite evidence of what the claimant did do, there were ample grounds for the adjudicator to reach his first finding of inadequate services, namely that the claimant failed to provide the complainant with adequate advice, and it is quite impossible to suggest that it was irrational of him to reach that conclusion.[32]Similarly, it is unchallenged that no costs or client care information was provided to the complainant by the claimant and the decision of the adjudicator that that failure represented an inadequate provision of services cannot in my judgment be said to be in any way irrational. It is for the experienced solicitor adjudicator to determine what services can be regarded as adequate and what inadequate.[33]Can, therefore, the award of compensation be impugned on the basis that false complaints were made by the complainant in his complaint against the claimant? Neither the detailed grounds nor the skeleton argument on behalf of the claimant make it entirely clear if the allegations against the complainant were simply that he had made incorrect statements to the LCS or that he deliberately told untruths. I accept Mr Riza has made it absolutely clear at this hearing that the latter is the but I agree with the submission of Mr Hooper that if Mr Moorghen's complaint was merely factually inaccurate rather than deliberately dishonest, the fact that he innocently misled the LCS cannot make the challenged decision irrational or otherwise contrary to principle. I do not understand Mr Riza QC to dispute that. This is, after all, not a merit based appeal. Moreover, any inaccuracy does not in fact impugn the two findings actually made by the adjudicator.[34]If the allegations are of deliberate dishonesty, they are, I am afraid, I judge, based on quite insufficient evidence. I appreciate that here I must ask myself whether there are grounds for impugning the judgment of the adjudicator as irrational. Here is a case where the claimant, advised by leading counsel at this stage and invited to make further representations, did not contend on the material available that Mr Moorghen had been deliberately dishonest. That is why I stress that his replies at page 53 to the further invitation to make representations afforded him by the LCS is important in that it simply sends to the LCS the short statement by the counsel who drafted the grounds of appeal.[35]Therefore to ask if it was irrational for the adjudicator, off his own bat, if I can put it in that way, should investigate material with a view to considering a serious allegation of dishonesty that had not in fact been made is, in my judgment, putting the case far too high. I must then consider if it was irrational for the adjudicator not to draw inferences from the material that Mr Riza submits inevitably should have drawn the adjudicator to conclude that there had been dishonesty rather than inferences that Mr Moorghen was innocently mistaken. However, reminding myself that that is the way that I must ultimately approach the matter, it does not seem to me to be an inappropriate first step for me to take time to consider if I consider that the inferences that Mr Riza invites me to draw are capable of being fairly drawn from the materials before the adjudicator.[36]It is as well, at this stage, to remind myself of what was said by Nicol J in R ex parte Keene v the Law Society [2009] EWHC 783 Admin, where he recognised that there was substantial force in the defendant's argument that among other things the complaints procedure is deliberately intended to be relatively informal, straightforward and cheap.[37]It is not, in my judgment, a correct inference or a persuasive inference from the evidence before me that the complainant was aware when he made his complaint that the claimant had in fact done work for him, including filing the grounds of appeal with the AIT. Mr Moorghen complained to the claimant that he had done no work by his letter of 24 September 2007, 94 to 95. He sent that letter to the defendant on 4 October 2007. He only received the claimant's response with the grounds of appeal on 13 October 2007, which is page 55. Miss Khaira's, the first case worker's, telephone attendance note of 5 November 2007 records the claimant as having said that he had been told by his former firm that "nothing had been done." And that is, if one is fair about this matter, completely consistent with Mr Moorghen having believed that to have been the case on 24 September 2007.[38]On 8 November the complainant himself volunteered that he had received correspondence from the claimant and sent that correspondence, including the grounds of appeal, to the LCS. That simply does not fit with the picture of the complainant deliberately attempting to conceal from the LCS that the claimant had undertaken work for him. Indeed it is utterly inconsistent with that contention.[39]In paragraph 11 of his skeleton Mr Riza QC submits that the complainant knew or must have known at some point between 2 and 30 August 2007, when he wrote to the Tribunal, that he would be dealing with the appeal itself, and that can be seen at page 45. However, the claimant says at paragraph 17 of his statement of facts that he called Mr Moorghen to inform him of the fact that because the appeal had been lodged in his name he would have to write a letter to the Tribunal to inform them to send any future correspondence directly to him. I do not find the reference to the complainant dealing with the appeal himself persuasive evidence that the complainant knew that the claimant had filed an application for him. The same letter at page 45 in the AIT also indicates that Mr Moorghen's then lawyers, Raj Law, had written to the AIT to ask for any outstanding appeal to be withdrawn, which suggests that Mr Moorghen was unsure as to whether any appeal had been brought. The same point arises in the telephone note of 2 September 2007, page 48, in which a member of staff at the AIT is recorded as having stated that:
"Raj Law were instructed by Mr Moorghen. They wrote... to ask whether an appeal had been made [I stress the word whether] and if it had [again I stress if] then to consider it to be withdrawn."
I find these references far more consistent with the complainant not having been told by the claimant what the claimant had done for him and entirely consist with the contents of the claimant's first letter to the complainant. The factual situation is that, as appears from what he originally told the LCS, page 30A:
"Mr Moorghen states that he was assured that a further appeal would be made on his behalf. He states that he was later arrested on the basis that he was overstayed and that when he informed immigration officers that an appeal was being pursued, he was advised that nothing had been done by you. He states that following further investigation he has found that there is no record that you have done any work on his appeal with the court, the Home Office or the immigration officers. He had the same problem with the AIT as the LCS themselves had, and was told that there was no appeal."
If one assumes, as is common ground, that there has been an initial discussion where the claimant told the complainant that he was going to institute an appeal, then everything is consistent with Mr Moorghen genuinely believing, that because he was told by, it appears immigration officers, that nothing had been done. He was also told that by his own solicitors, that nothing had been done.[40]It was also alleged in the letter that Mr Moorghen sought -- the first letter he wrote -- to blackmail the claimant, threatening to report him if he did not pay him another £1500. In fact, what he says in that letter is that he would report him if he did not reply to him, not if he did not pay the money to him. I find the letter is so ungrammatical and disjointed that it cannot safely bear the serious imputation that the claimant seeks to draw from it, let alone -- looking at these various inferences -- that it would be irrational not to draw the inferences contended for by Mr Riza on behalf of the claimant.[41]Although the claimant alleges that he informed the complainant at the time of what he had done, he cannot point to a single document, letter, attendance note, email or fax indicating any contemporary communication with his client. Even if there were any truth in these allegations of dishonesty by the complainant, and the evidence in my judgment is far from establishing that there is, the claimant was invited to comment on the final report of the new case worker, Miss Poselay, which report put the whole document before the adjudicator and pointed up, in my judgment, the possibility of Mr Moorghen having misled the LCS. The complaint chose not to respond to the invitation to comment. He was represented at the time. He did not submit to the adjudicator that because of the claimant's behaviour a causal connection could not be drawn between the inadequate service and compensation and that no award should be made. It is therefore hardly surprising that the adjudicator made no factual findings on the allegations which are now relied upon.[42]Thus I cannot find that there is any ground based upon the conduct of the complainant to challenge the adjudicator's decision to award compensation as being in any sense irrational or contrary to principle.[43]Mr Riza has contended that it is irrational to find that any distress or inconvenience was caused by the findings of inadequate professional services. I have indicated that I have found that there was sufficient evidence for the adjudicator to find, and that it is not irrational for him to find, that the claimant had not advised the complainant of what he had done, and had not kept him informed, and there was no challenge to the finding that there was no client care letter, no indication of costs. The client care letter should have included or attached a receipt and the adjudicator rightly refers to that omission; it is something that was specifically complained of by the complainant in this case. I refer back to Richard J's dictum in Brammall. To assess whether the findings of inadequate service would have caused distress and inconvenience and to assess the proper compensation is wholly within the ambit and experience of the adjudicator. This is a long way away from the point where it could be said that it was irrational to have found that there was no such link or that it was not worth £1,000.[44]Finally I turn to the apparent bias ground. That is a contention that the adjudicator could not lawfully make the challenge decision because of his previous decisions in the case, and at paragraph 21.8 of his skeleton Mr Riza QC submits that given his previous findings there was a real possibility that the adjudicator had left himself no room to change his mind, having regard to his previously expressed views on the serious distress and inconvenience which the complainant had suffered. He relies on part of the judgment of Lord Hope in Porter v Magill [2002] 2 Appeal Cases 491 from paragraphs 95 to 103, and in particular the test enunciated at 103, which is a test that means the law had moved on since the original primary case on bias, Locabail. In relation to the test, namely that the question is whether the fair minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased. I have also considered, and got a great deal of assistance from, the case of Sengupta v the GMC and Others [2002] EWCA Civ 1104, and the very helpful analysis of apparent bias from Laws LJ, from paragraphs 30 to 36, and particularly where apparent bias may justifiably be apprehended.[45]I have available to me a witness statement from Mr Butcher, an experienced solicitor and adjudicator, at pages 112 to 118. At paragraphs 26 to 29 he points out that he actually did change his decision in three respects: first, he concluded on the evidence contrary to his earlier finding that the claimant had done work on behalf of his client; secondly, that he altered the category of the degree of distress and inconvenience suffered by the complainant and thirdly that he changed the award of compensation. He also points out that he had considered a supplementary report from an entirely new case worker. Mr Hooper has pointed out that the claimant, who at the time was advised by leading counsel see 40A to 47A, did not object to the reconsideration by the adjudicator.[46]I have been referred to paragraphs 68 and 69 particularly 69 at D to E in Locabail, a passage which deals with one specific case, where the lady who was alleging bias waited until after the decision had gone against her before arguing bias. The section is headed "waiver" and perhaps I should briefly refer to that. It is a joint judgment of a very strong Court of Appeal and this aspect of the case has not been overturned or altered by the case of Porter v Magill.

The judge indicates at D to E of page 491:

"it was not open to Mrs Emmanuel to wait and see how her claims in the Locabail litigation turned out before pursuing her complaint of bias. Mrs Emmanuel wanted to have the best of both worlds. The law will not allow her to do so."
[47]Mr Riza QC says it is one thing for a party to waive the party's rights when told by a judge that he has an interest in the case, then to raise the interest afterwards, it is a different matter where it is a matter of inference from the materials available to the party. It is clear that there is an apparent bias because the judge has committed himself to a view. I am afraid I find this a distinction without a difference. The material was there for the claimant and leading counsel to judge whether to make a submission of apparent bias. In my judgment, having not done so, they cannot now argue it.[48]However, the fact that in any event he did change his mind in my judgment would show the fair minded informed observer that Lord Hope describes that Mr Butcher was keeping an open mind. His decision is couched in neutral, fair and objective language. He was actually permitted by the Law Society's rules, see the statement at page 125, to make an adjudication on a re-referral back. In other words there is, on the evidence before me, nothing which establishes that a fair minded and informed observer would conclude that there was a real possibility that the adjudicator could not or would not revisit matters with an open mind. There are no such features, as identified by Laws LJ, in Sengupta which might give rise to a justifiable apprehension of bias, in fact it seems to me clear that this falls within the description of an ordinary case of which he was talking in paragraphs 35 and 36.[49]I should briefly deal with a further issue raised in the supplementary skeleton today. It is suggested that there was inconsistency between the Solicitors Regulatory Authority finding, which did not punish the claimant for professional misconduct, and the findings of the adjudicator. The obvious point is that they were clearly considering distinct and separate behaviour. Secondly the SRA's finding are entirely consistent with Mr Moorghen having honestly been mistaken about the fact that the claimant was doing nothing for him.[50]Having regard to all the circumstances of this case and having considered all the evidence and heard the various arguments, I consider that there was nothing irrational, contrary to principle or unlawful in the decision of the adjudicator and on the merits I dismiss this application.[51]I should add that had I considered there was merit in the claimant's grounds I would have to consider whether this claim was time barred. It is clear from R v the Secretary of State for Transport ex parte Presvac Engineering limited [1991] 4 Admin Law Reports 121 that time starts to run from the date of the challenge to the decision, not the date on which the claimant learned of the decision, although the latter date is plainly relevant to the court's powers under the CPR to the court's power to extend the time under the claim form. Here it is clear that the claimant is caught by the 3-month upper time limit. Of course, the Rule says that the claim form must be lodged promptly.[52]This is a case where although this issue was raised in the defendant's grounds of opposition and flagged up by the judge granting permission, no material was put before the court either in the claim form, although it is flagged up that they needed to ask for an extension of time, nor indeed in any material other than that which has been orally told to me today, and in a short witness statement which I have not seen but which I accept, as I know the contents of it, from Mr Riza QC today, explaining that. That is a very important factor in the exercise of my discretion. It is right to say that learned QC, Mr Riza, unfortunately suffered a heart attack on 18 January 2009. He was taken into hospital. He had to go back into the hospital, as I understand it from him, as other thromboses were found. He was very unwell at this period. It was quite right for the claimant, who was quite an inexperienced solicitor if I may say so, (and acting in his own cause is never sensible) to wait for Mr Riza, to see whether he made a full recovery rather than changing his representation but there was time, perhaps three or four weeks, before the time when the claim form was actually filed at the court where Mr Riza was in fact back at work, and although that is a factor in the consideration of my discretion, in all the circumstances, having regard it the merits of the application and the fact that the claimant has wholly failed before today to set out the grounds for making an application for extension, even if I had found that there was any merit in the application I would have refused permission to extend time and I would have held this the claimant was time barred.[53]As it is, I dismiss the application. Thank you very much. Can I tell the parties -- and I am very sorry, it may be we can deal with matters very shortly -- that I cannot sit beyond 3.55. I have a meeting today and as it is chaired by the Lord Chief Justice, I do not want to be late. It is in this building but it is quite tricky to find where it is and I cannot sit beyond 3.55.[54]MR RIZA QC: My application is for permission to appeal to the Court of Appeal on all of the findings that you made, in particular the grounds are that --

JUDGE BIDDER QC: Just a second.

[56]MR RIZA QC: The wrong exercise in discretion in not extending time; that you were wrong to find -- I am sorry I have to say this in blunt terms.

JUDGE BIDDER QC:

[57]Not at all Mr Riza, it is sometimes said by litigants in person in far less polite terms than you are doing.[58]MR RIZA QC: You were wrong to hold that there was no failure to take into account by the adjudicator; he failed to take into account that the complainant had failed to inform the Law Society that he had withdrawn, or had given instructions to withdraw, his appeal, and that you were wrong to hold that the case of Locabail was in point in this case for the reasons identified during argument and that the approach of the adjudicator, in our submission, failed to take into account and failed to apply his mind at all to the fact that the main basis of the complaint had fallen away. There was a moving of the goalposts, he failed to even address that, all he did was say that bit has gone, there is something else as well. Basically, our submission is, finally as a ground, that there was no proper evidence of a causal link between any distress and inconvenience suffered because of his immigration predicament and what the claimant failed or did not do. There was simply no evidence of that in front of him. In all of the circumstances my Lord, we would seek your permission to appeal. I can put those in writing in due course.

JUDGE BIDDER QC: You are entitled to make an oral application.

[60]MR RIZA QC: Well, I am making the oral application in light of the time, as it were, to get it out the way.

JUDGE BIDDER QC:

[61]Thank you. Yes, an application has been made to appeal to the Court of Appeal my decision on the basis that I may have made a wrong exercise of discretion in relation to extension of time; that I have failed to take sufficient account of the fact that the claimant had failed to draw the attention of the Law Society to the fact that he had withdrawn his appeal and that it was irrational of the adjudicator not to take that into account; that it was wrong to find Locabail applicable on the issue of waiver; it was irrational of the adjudicator to have concluded that there remained a causal link between the findings of inadequate services given that the main plank of his earlier award had been the failure to do anything and that there was in fact no evidence of the causal link.[62]In my judgment these matters have been dealt with adequately by me in my judgment. I have to give permission to appeal only where I consider that the appeal would have a real prospect of success or that there is some other compelling reason why the appeal should be heard. I do not consider that on the basis of those reasons this appeal would have a real prospect of success, and it is not argued that there is some other compelling reason why the appeal should be heard. I refuse permission to appeal.[63]MR HOOPER: My Lord, the defendant seeks its costs. I am conscious that this hearing has been less than one day. On that basis a schedule of costs has been prepared on the basis of summary assessment, I am also conscious of the time.

JUDGE BIDDER QC:

[64]I know I should consider the issue of the -- yes, this is a one day hearing and I should start with the presumption of a summary assessment. However, that would have been possible had the hearing lasted for the time estimate that it was given. It did not. I have always been tied to a limit. I do not think I could be fair to the parties to make a summary assessment of the costs, although I have to say it is something I do day in day out in the County Court, and on this occasion, therefore, I decline to make a summary assessment of costs. I will make an order in principle as to where the costs should go, but I order that thereby a detailed assessment of the costs in this case.[65]MR RIZA QC: I respectfully agree.

JUDGE BIDDER QC:

[66]Thank you Mr Riza, that is very helpful, but I think that is ultimately fairer for the parties.[67]MR HOOPER: I thank you my Lord. On that basis I ask for my costs to be assessed if not agreed.

JUDGE BIDDER QC: Is this a publically or privately funded case?

[69]MR RIZA QC: It is a privately funded application.

JUDGE BIDDER QC: Anything you want to say?

[71]MR RIZA QC: We have lost fair and square, consequently I don't think I have anything to say. The only thing I can say, it really is up to your Lordship, it is a question of discretion of the court, is that my client has really tried very hard to correct, over the years -- he could not give into something that was not the case.

JUDGE BIDDER QC: Well, the conduct of the parties to an application like this is of relevance.

[73]MR RIZA QC: He had to correct, he could not just leave it be. Consequently, I don't know how that can be reflected --

JUDGE BIDDER QC: But he did not have to fight.

[75]MR RIZA QC: What is the difference between £1,000 and £1300? In the end, he did not want to give someone who he thought the pleasure of --

JUDGE BIDDER QC:

[76]If I thought that there was a general public interest that he was supporting, fine, but it really is a matter for his own particular professional and personal interests -- I am not suggesting it is not an important one.[77]MR RIZA QC: There is a public one as well, it is although solicitors have obligations, they are easy targets, very often, when someone loses or is arrested or detained, they are easy targets. I can tell your Lordship that many times the claimant and I sat down and he said I cannot pay, I will not pay, it is simply not fair, I did the job. Yes, in the end your Lordship found against us, fair is fair, however, there is another side to this, and of course my client has been adamant that he was not prepared to pay as long as he felt as though he did the job. In the end the difference was a distinction without a difference, the only thing that changed was -- this was after he was elated when he got the news of the letter of 30 October, because when he got that, I don't know whether the Law Society has teeth. If the view has been taken that he did not do anything wrong by the Solicitors Regulatory Authority, I don't know what teeth they have afterwards to enforce the £1,000, but for him it was a question of principle. He had not done it, and now he has to pay the price, but my Lord, sometimes one has to make a stand.

JUDGE BIDDER QC:

[78]Well, this is a case where clearly the successful party is the defendant. I have been invited to consider the motivation of the claimant in bring the claim for judicial review. He felt he had been wronged and I suspect still feels he has been wronged, but he was not, in my judgment, bringing the appeal to further any public interest, but his own professional and personal interest. I do not consider that that is a factor which ought to cause me to weigh it very heavily in the balance against where the success in the action lies, and in my judgment the appropriate order is that the claimant should pay the costs of the defendant, such costs to be the subject of a detailed assessment if not earlier agreed. Thank you very much. I think that has covered all matters, Mr Hooper, Mr Riza.