Rosemarine, R (on the application of) v The Office for Legal Complaints [2014] EWHC 601 (Admin)

“11. The discretion is wide but must be exercised reasonably. The decision can be challenged by judicial review but in most cases (assuming no procedural unfairness or failure to follow particular law) that will require any challenger to a decision to establish that it was irrational in Wednesbury terms. Mr Moffett submitted, relying on dicta in immigration cases concerning challenges to decisions of tribunals, that the hurdle to be surmounted to establish irrationality was set very high. Certainly where the decision maker has an expertise and is given a wide discretion, it will inevitably be more difficult to establish that a particular decision was irrational. That is not because the hurdle is set at a higher level but because the court must respect the expertise and the powers expressly conferred by Parliament. But where no particular expertise is required to reach a conclusion of fact and that conclusion is challenged as being irrational, there is no reason to approach the matter in any different way from that generally applied in judicial review claims. That is material since, as will become clear, there are two grounds which Elias LJ permitted to be argued. The first, broadly speaking, was a challenge to the ombudsman’s decision that the advice given was defective and the second was that because of that defective advice the Gunners entered into the arrangement which led to financial loss. The ombudsman decided that he was satisfied on the balance of probabilities that if the Gunners had received the advice they ought to have received they would not have entered into the arrangement. That conclusion depended on an assessment of the evidence before him and did not depend on expertise in financial affairs or what advice was required to comply with an adviser’s obligations. It was an issue of causation and the width of his discretion and considerations of what was fair or reasonable could play no part in reaching his conclusions of fact.”

“Dear Mr Duffield, You request monies from me, confirming by your 8 March letter that your claim is as follows: you claim: i) I gave you “wrong initial advice” that you have a right of appeal, and ii) Mr Davies (your immigration adjudicator) said you don’t have a right of appeal. 1. My answer in brief is as follows – you lost nothing because of my advice, and your claim is wholly without merit, frivolous and vexatious. My advice assisted you. 2. You are aware of everything in this letter concerning you already, as, in addition to much of it already being in writing, I have at all stages explained it to you over the phone prior to your complaint to Ombudsman. Your claim is vexatious. 3. You have a) vexatiously refused to provide me with the essential documents I repeatedly requested, and b) vexatiously hurried to complain to Ombudsman, without giving me first an opportunity to answer. … BACKGROUND 1. Fraud 2. Fraudulent attempts to gain entry to UK and fraudulent fictitious marriages are both criminal, as you know. 3. It is government policy to stop both, and they are both punished with imprisonment of all those involved, including sponsors and sponsees/suspect “wives”

“However, I am of the opinion that Mr Duffield's complaint was not dealt with satisfactorily. Mr Duffield raised his formal complaint with the barrister on 5 December 2011, but he did not get a final response from the barrister until he brought the complaint to the Legal Ombudsman in March 2012. The barrister has said that he could not provide a response during this period because Mr Duffield failed to provide all information he was requesting. However I do not think that documents the barrister requested in order to investigate the complaints were required. Documents such as correspondence between Mr Duffield and his current solicitors, Mr Duffield's wife's latest application to the Home Office and a list of his and his wife's assets were not relevant to the investigation of Mr Duffield's initial complaint.”

“I fully endorse the recommendation report’s approach to the question of the complaints handling. While you were prompt and courteous in replying to the initial letter, your repeated demands for further documentation were, in my view, unnecessary and obstructive. I do not consider that it was impossible for you to respond to the complaints raised in the absence of the requested papers and your prolonged refusal to do so was poor service.”

“53(iii) Nor could [Law Society] guidance in those terms apply appropriately to the OSS investigation. That is a formal process which can lead to the imposition of sanctions. As it seems to me, there can be no obligation on the solicitor to be conciliatory with the OSS. He must be free to defend himself vigorously. It may be prudent to observe restraint in the language he uses to describe the client or the client's complaint, and indeed in the language he uses to describe the OSS's analysis of the matter, but I do not think that any sensible dividing line can be drawn between a permissible "firm" defence and an impermissible "aggressive" defence. If the solicitor's position is that the complaint lacks substance, he is entitled to express that in the terms he judges best calculated to bring out the lack of substance, even if it involves saying harsh things about the client. The fact that, in the interests of procedural fairness, the representations are copied to the client does not mean that the sensitivities of the client must prevail over the solicitor's rights of defence.”