Legal Ombudsman v Cory [2016] EW Misc B36 (CC) (03 November 2016) [2016] EW Misc B36 (CC)

EWMISC
Legal Ombudsman v Cory [2016] EW Misc B36 (CC) (03 November 2016)
[2016] EW Misc B36 (CC) · 2016-11-03
[1]LEGAL OMBUDSMAN -v- RHIANNON CORY 3rd November 2016 APPROVED JUDGMENT JUDGE SEYS LLEWELLYN: This is an application for committal of the defendant for failure to comply with a court order made on 17 th June of this year. That order made by the court follows protracted proceedings involving the Legal Ombudsman, who is the claimant, and Ms Rhiannon Cory who is a practising solicitor and who is the defendant. Mr JS Ladbrooke had brought a complaint before the Legal Ombudsman because he was unable to secure from the Defendant either completion of the administration of an estate or sufficient assurance that she would do so. In short, the court order itself required Ms Cory, within seven days of service of the order, to reimburse a sum of £527.28 to the estate which Ms Cory was executing under the instructions of the personal representative of the deceased, but had failed to complete; that she should reduce the total fees of her firm, Castle Law, a firm which derives its name from her address; and that she should complete the administration of the estate and provide a finalised copy of the estate accounts to Mr J.S. Ladbrooke.[2]The matter is protracted in that as long ago as 7 th March 2014 a decision was made by the Legal Ombudsman which required her to do those things. A reminder was sent to her by letter of 18 th March 2014; a further reminder was sent to her on 3 rd April 2014. On 1 st May 2014 the Legal Ombudsman sent a letter headed "Complaint by Mr J.S. Ladbrooke about your firm, failure to comply with an Ombudsman's decision dated 7 th March 2014" which rehearsed the history and on page 2 said this:
"We have power under Section 141 of the Legal Services Act 2007 to seek a court order to compel compliance with the decision. We can ask the court to make an order under the Civil Procedure Rules 70 that our decision be enforced as if it were an order of the court. If you do not intend to comply with the decision.."
. The letter states at page 3, "...then please provide any representations you may wish to make no later than 15 th May..[and that should have said "2014"]; "I remind you that this is a letter before claim."[3]In short there was no compliance or indeed response. On 13 th January 2015, enclosing a copy of the court order permitting enforcement, the Legal Ombudsman stated to Ms Cory that "If you do not comply with the order within seven days of receiving this letter then we will commence further proceedings to enforce this payment through the courts." On 12 th November 2015 matters were corrected and fully explained again to Ms Cory.[4]In early 2016 there was application for an order to enforce compliance with the determination and decision of 7 th March. As I have indicated, the order was made on 17 th June. At that time it was made in respect of Castle Law, a firm, and when application was made for a penal notice to be applied in the order - the court having pointed out that in its present form the order of 17 th June 2014 was against Castle law, a firm - appropriate application was made to name Ms Rhiannon Cory herself as the defendant. In fact, as long ago as 12 th July 2016 a process server attended personally upon Ms Cory in order to serve the relevant documents upon her, which included a letter of 5 th July 2016, an application notice e-mailed to the court and in particular the general form of judgment order amending the title of the action dated 17 th June 2016, as was required, and the original general form of judgment or order for enforcement of the Ombudsman's decision dated 17 th June 2016. Thus since July 2016, by personal service, Ms Cory was fully made aware of the terms of the order that she was required to comply with. In September of this year, application was made for committal. This is in short a solicitor who has hidden her head in the sand and continues to do so.[5]On the first occasion when the matter was before the court there had not been personal service as was required of the committal application and the notice of hearing and so I adjourned the matter for a comparatively short while so that service could be made, in the hope that Ms Cory would attend court and could be made to understand that the consequences for her would be disastrous if she continued to refuse all co-operation, and not to attend to that which she is required by court order to do. The same process server who attended on her in July thus, on 26 th October, attended at her home address - Penllyn Castle, Penllyn, Cowbridge, South Glamorgan - and, to use his wording in the affidavit of service, "effected personal service of the committal application by handing same personally to Rhiannon Cory."[6]The affidavit of service itself does not, as would have been desirable, attach to it or exhibit a copy of that which was served. However, there has been shown to me today a witness statement by Mr Reynolds of 28 th October setting out what he had served, namely the committal application and a letter of 24 th October 2016 which is in these terms, making clear that 3 rd November 2016 at 10 a.m. was the hearing which she was required to attend. Thus:
"Dear Ms Cory, we have applied for committal proceedings in this matter due to your failure to comply with the Ombudsman's determination and the order of District Judge Scannell.." - that is the order of 17 th June 2016. "
Please find enclosed a sealed committal application. The court have now listed a hearing on 3 rd November 2016 at 10 a.m., to be heard at the County Court at Cardiff, Cardiff Civil Justice Centre.." giving the address and estimated time estimate, namely before myself.[7]In addition, it is true that the notice of hearing was not issued and sealed by the court until 31 st October 2016, likewise the notice of hearing; but, as is clear from the endorsement made by a member of the court staff, copies of those orders, namely the order that the application for her committal be adjourned to today's date at 10 a.m., and notice of hearing for today at 10 a.m. were sent to her address on 31 st October by first class post - that was on Monday of this week. Therefore it is clear to me that there has been knowledge on the part of Ms Cory of this morning's hearing, without any response. Enquiry has been made within the court to see whether any communication has been received from Ms Cory.[8]So the matter stands that she has been aware of the wish to enforce these proceedings since July. There is a long history of no response whatsoever to the efforts of the Legal Ombudsman to enforce compliance or to secure her co-operation with compliance with his decision of as long ago as March 2014. As of 26 th October, by personal service upon her, Ms Cory has known of the committal application, that she is required by court order to attend, and that it is due for hearing today at this court at 10 a.m. I am satisfied fully that Ms Cory knows of the hearing but has failed to attend.[9]In the light of those matters I propose to make an order, which will be suspended, that Ms Cory be committed to prison for a period of 14 days but it shall be suspended on condition that she attend the court at the adjourned hearing which, subject to further discussion with counsel, I intend to make 28 days or 35 days from now. I propose also to direct that, if she seeks to explain non-compliance with the order of 7 th March 2014 or to excuse it by way of illness or other circumstance, she shall do so by witness statement, supported by a statement of truth in writing, to be filed and served upon the claimant not less than seven days before the adjourned hearing.[10]I set out the reasons in full because these are matters touching on the liberty of the subject and it is right that I should express my reasons fully. I will cause a transcript to be made at public expense. I shall direct that the transcript be expedited so that a copy of it may be served upon Ms Cory because it will be necessary for there to be personal service of the matter, in particular the notice of hearing and the attendant documents, in preparation for that hearing. I shall also invite the court staff to deal with the issue of the order which I make today so that it can be available to the claimant and his (I think it is his) legal representatives for service at the earliest opportunity.[11]Doubtless those in the service of the Legal Ombudsman will seek to draft some letter reminding her that the purpose of these proceedings is simply to secure her compliance with that which has been ordered, pointing out that costs continue to accrue and that if there is, as there appears to be at present, no other means of securing enforcement it is the intention of the Ombudsman to proceed with the application for committal. That is a matter for him how he phrases the next matter. It is urgently wished that she comply with her obligations, rather than suffer the disaster of an actual sentence of imprisonment.