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Cite as: [2014] EWHC 1539 (Admin)

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Neutral Citation Number: [2014] EWHC 1539 (Admin)
Case No: CO/13932/2012

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

Royal Courts of Justice
Strand
London WC2A 2LL
11 April 2014

B e f o r e :

MR JUSTICE LEWIS
____________________

Between:
THE QUEEN ON THE APPLICATION OF HAFIZ & HAQUE SOLICITORS
Claimant
v

LEGAL OMBUDSMAN
Defendant
TAHIRA OURESHI
Interested Party

____________________


Computer-Aided Transcript of the Stenograph Notes of
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A Merrill Communications Company
165 Fleet Street London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7404 1424
(Official Shorthand Writers to the Court)

____________________


Mr P Saini (instructed by Hafiz & Haque Solicitors) appeared on behalf of the Claimant
Mr A Wagner (instructed by the Legal Ombudsman) appeared on behalf of the Defendant
The Interested Party did not appear and was not represented

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

  1. MR JUSTICE LEWIS: This is a claim for judicial review of a decision of the Legal Ombudsman given on 27 September 2012. By that decision the Legal Ombudsman considered a complaint made by a Miss Qureshi about the level of services provided by the claimant to her. The Legal Ombudsman decided that the firm generally provided Miss Qureshi with a reasonable level of service but in one respect only she considered that a reasonable level of service had not been provided. That matter concerned the fact that the solicitors had not attended a screening interview on 13 November 2011. I shall return to that matter in due course.
  2. Permission was granted by Jay J after an oral hearing. He gave a full judgment. He described the ground of challenge which was arguable as, in effect, rationality. There are, in fact, two separate strands to it. At paragraph 14 Jay J indicated that the main ground on which he thought it was arguably irrational was that the papers from the case indicated that Miss Qureshi had been told on 10 November 2011 that the solicitor would not be attending the screening interview on 13 November 2011. It was therefore arguable that the decision that the solicitors were at fault for not informing her that they would not be attending was illogical.
  3. The other matter that concerned Jay J was that the Ombudsman had taken the view that the fixed fee for the services provided included the screening interview and there had not been any suggestion that there was no need for solicitors to attend the screening interview. Jay J, at paragraph 17 of his judgment, said that he was far from convinced that this was the case and he refers to a file note dated 7 November 2007 where the solicitors indicated that they may not be attending the screening interview and explained the difference between a screening interview and the substantive asylum interview.
  4. Against that brief background I can take the facts from the judgment of Jay J and from the documentation. The interested party, Miss Qureshi, was a client of the claimant. The claimant is a firm of solicitors. Miss Qureshi was a national of Pakistan who was in the United Kingdom and who was seeking asylum. On 7 November 2007 she attended at the offices of the claimant and instructed the claimant to act on her behalf in relation to her asylum interview. The solicitors agreed to act on her behalf and agreed to do so on a fixed fee basis. That is to say that they agreed that they would provide their services for a fixed fee of 2,800 but that those fees would not include any disbursements such as counsel's fees for any appeal hearing. There is a file note of the meeting on 7 November 2011. The fourth and fifth bullet points are in the following terms:
  5. "She was told that she would be interviewed first for screening purposes. We explained her in detail that in screening interview UK Border Agency will essential took her basic details in order to establish her identity to proceeds with her claim for asylum and humanitarian protection. She is explained that she will be given an opportunity during the substantive interview to explain all of her circumstances in order to support her claim. She is explained that substantive interview is difference from the screening interview.
    It is agreed with Miss Qureshi that we will accompany her during her asylum interview(s). However, she is explained that although the screening interview is more likely a basic interview, viz., just to obtain her basic details. We may accompany her for this interview, whereas we will accompany her at her substantive interview."
  6. Pausing there, the grammar and the English in that file note is poor. It is a feature of most of the file notes and letters that I have seen from the claimant's solicitors. However, in this judgment I will reproduced so far as I can the actual words used by the solicitor. There are times when the English is so poor that some of the contents are not readily comprehensible and that may explain some of the difficulty that has arisen in this case.
  7. Returning to the narrative, the solicitors then sent a letter to Miss Qureshi with a date in November 2011 which is not entirely legible. One paragraph of that letter says this:
  8. "As a matter of public policy the Law Society and fair practice requires us to inform clients to the likely cost of acting on their behalf. We will charge you on an hourly basis @ 150 per hour. It is pertinent to mention that the total fee agreed in this case is 2,800 (excluding VAT if applicable) and you have paid 800. You are requested to please deposit the balance amount at your earliest. The above referred fee includes, fee for giving you legal advice regarding your claim, your attendance to our office and accompanying you for your asylum interview(s) as and when required. We can confirm that we have agreed, in the above referred fee, to represent you before the Appellate Tribunal should your claim refused by the UK Border Agency and it will also include our fee to instruct counsel to represent you before the Appellate Tribunal. Please note that counsel's fee is not included in the above mentioned agreed fee."
  9. It appears that the solicitors requested a screening interview with the Home Office and it appears that they received a letter on or about 10 November 2011 giving a date for that screening interview. There is a handwritten file note included in the material before me. There is an issue as to whether or not the defendant received a copy of that file note prior to her decision and a dispute as to what it means. The note is dated 10 November 2011, it is timed at 5.11 pm and it say this:
  10. "Called Miss Qureshi and informed her that we are in receipt of a letter dated 10/11/2011 confirming your appointment for screening interview at Lunar House, Croydon on 13/11/2011. Miss Qureshi explained the procedure of screening interview. She is explained that on 13/11/11 UKBA will ask her basic details regarding her ID, her travel to UK and reasons of claim for asylum. She is explained that they will arrange a substantive interview. [The next line is illegible]. She is explained that her claim is decided on basis of her information and documentary evidence that she will provide to UKBA in support of her asylum claim. She is explained that we will accompany her during her substantive interview because screening interviews is an initial assessment conducted by the UKBA in order to establish her ID, proof of address, her travel history et cetera. We will not be of any assistance during the screening interview".
  11. Pausing there, in terms of the dispute as to the content of that note, it is clearly un-grammatical and in parts not legible. However, reading the note fairly and bearing in mind what the interested party had already been told on 7 November 2011, it is, in my judgment, clear that this note was telling her that the solicitors would be attending the substantive interview but the clear implication is that they will not be attending the screening interview and that they could not be of any assistance during the screening interview. Read at face value it therefore would support the submission that Miss Qureshi was told on 10 November 2011 that she would not be accompanied by a solicitor when she went to the screening interview on 13 November 2013.
  12. In the event, Miss Qureshi's claim for asylum was ultimately rejected. There was then a dispute about the fees the claimant charged Miss Qureshi. Miss Qureshi complained about the service generally that she had received. In the event, only one aspect is relevant to these proceedings. That relates to the fact that the solicitors did not attend the screening interview on 13 November 2013.
  13. To make matters clear, there were in total three interviews. The first was what has been described as the screening interview held on 13 November 2013. It is now clear that the claimant's solicitors did not attend the screening interview with the interested party on 13 November. There were two further interviews on 16 and 28 November 2011. The claimant did accompany Miss Qureshi to the interviews on 16 and 28 November 2011. It is right to say, however, that that has not always been the position taken by the claimant. They have not always articulated their case clearly, consistently or in a way that is factually accurate. To give one example, the claimant responded directly to Miss Qureshi when she first complained to them. The letter refers to the fact that she had complained that they had not attended the screening and it affected her morale on the day. Their response is as follows:
  14. "The file record shows that you were accompanied by a qualified and experienced solicitor for your screening interview on 13/11/2011 with your full accord. It is our practice that we do not agree and or commit any individual person's name in advance to accompany the client during their screening interview as it depends on times, dates and availability of persons at the date scheduled time. However, as per agreement to accompany you during the screening interview, we indeed allocated a qualified solicitor who did accompany you during the interview. We are of the view that your point has no merits on its own as solicitor hardly can do anything during interview and screening interview materially or is such a way to affect the contents of interview at all or materially. Hence your allegation is denied in its entirety".
  15. That letter, from a firm of solicitors, clearly says that they agreed to attend the screening interview on 13 November. It clearly claims they did attend on 13 November 2011. However, that was not in fact correct and on 10 July 2012 the claimant wrote a letter to the Legal Ombudsman. This is an important letter. I will read parts of it. In paragraph 1 it says the following:
  16. "a. Following Miss Qureshi's instructions, our office contacted UK Border Agecny on 9/11/2011 in order to book a screening interview for Miss Qureshi. Kindly refer to enclosed attendance note for the confirmation of the same.
    b. A letter dated 10 November 2011 received from the UK Border Agency confirming Miss Qureshi's screening interview on 13/11/2011 as was agreed with the client. She was contacted shortly to discuss the process of screening interview.
    c. On 10/11/2011 Miss Qureshi was contacted over the telephone; she was explained about the screening interview, kindly refer to the enclosed attendance note for confirmation of the same.
    d. We would like to take this opportunity to correct a mistake we have in our letter to her of 29/5/2012. The date of 13/11/2011 (the screening interview) should be read as 16/11/2011, when we attended with the client but was allowed by the Home Office on the grounds that she did not require legal representation on the matter they would conduct in interview. Kindly note that Ms. Qureshi's was accompanied by a qualified and experienced solicitor for her appointment on 16/11/2011 and for her substantive interview on 28/11/2011 which can be confirmed in the Statement of Evidence Form (SEF) dated 28/11/2011, we are enclosing only first page of that statement in order to confirm that Ms Qureshi's was duly accompanied and represented by our office during the substantive interview."
  17. Pausing there, that letter is not clear. Paragraph d in particular could be read as indicating that the screening interview took place on 16 November 2011, not 13 November 2011. However, reading it as a whole and bearing in mind it was correcting a letter of 29 May 2012, the point that the letter appears to be making is that they attended on 16 November 2011 and 28 November 2011 and the implication is that they did not attend on 13 November 2011. The letter does not expressly address the question of whether or not there had been any agreement to attend as suggested in the letter of 29 May 2012, although the earlier paragraphs that I have read out indicated that there had been a telephone conversation contained in the attendance note for 10 November 2011 which dealt with that.
  18. There is also another paragraph in the letter underneath section 3 which I should mention. It is in the following terms:
  19. "It is paramount to mention here asylum claim(s) are always determined in the light of claimant's statement(s) during the asylum interview and the documentary evidence provided in support of his/her statement(s). Kindly note that during our meeting with Ms. Qureshi on 7/11/2011 she was explained in detail about the procedure during the screening as well as substantive interview for her claim for asylum and humanitarian protection. It is further submitted that Ms. Qureshi was made clear that she need to state clear all of her factual circumstances before the interviewing officer in order to support her asylum claim. Copy of the Client care letter dated 14/11/2011 and attendance note of 7/11/2011 is enclosed for the confirmation of the same".
  20. There was then a report by a member of the Ombudsman staff and that report recommended that the service provided by the client was reasonable and that there should be no further involved by the Legal Ombudsman. Miss Qureshi did not accept that. She was entitled not to accept that under the rules and the matter went to the Legal Ombudsman for a determination. The Ombudsman wrote as follows on 27 September 2012:
  21. "Complaint: Miss Qureshi about your firm. You have now seen and commented on my colleague, (Inaudible name)'s, report dated 27 August 2012 on the complaint about the service you provided Miss Qureshi. Since it is not possible to reach agreement on the basis of that report, the case has been passed to me for a formal decision. I have read the case papers and reviewed the evidence in the file. I have also considered carefully the responses to the report I have received from you and from the complainant. Having done so, I have decided that the conclusions of the report are a generally reasonable summary of the position, subject to what I say below. I have decided on the evidence provided that the firm generally provided Miss Qureshi with a reasonable level of service. The firm agreed that they would carry out the work for her on a fixed fee basis and have not sought to charge fees exceeding the sum agreed. I am also satisfied that they attended two screening interviews with Miss Qureshi. There is however no evidence to show that they attended on 13 November 2011, a matter I deal with below. I am also satisfied that the firm took Miss Qureshi's personal circumstances into consideration during the retainer and gave her ample opportunity to raise any issues with the evidence that was being provided to the Home Office. Whilst I am satisfied that the firm attended both the interviews on 16 and 28 November 2011, I can see no evidence which supports the contention that they attended at the first interview on 13 November. It was clearly envisaged that the firm would be attending the interview with Miss Qureshi, as they attended on 16 and 28 November. The firm originally asserted that they had attend on 13 November but then later corrected this assertion, saying that Miss Qureshi did not need representation on 13 November 2011. They have provided no evidence that they explained this to Miss Qureshi or why they now think representation was not required. I have seen Miss Qureshi's comments and agree that it would have been worrying and confusing to learn at such a late stage that her lawyer was not going to be attending. I am also of the view that it is reasonable to assume that representation was included in the fee the firm was charging. In the circumstances I have decided that it would be fair for the firm to reduce its charges by 300 for not attending at the hearing(?) and to pay Miss Qureshi the sum of 100 for the impact it has had on her. I am not satisfied that there was any further detriment caused by their non-attendance and therefore do not consider a further remedy is warranted."
  22. That is the decision under challenge. As I indicated, Jay J considered that there were essentially two strands of reasoning. The first was that the file note of 10 November 2011 did include an explanation that the solicitors would not be attending the screening interview on 13 November 2013. Secondly, there was evidence in the file note of 7 November to indicate that the screening interview was only for the provision of basic material and that the solicitors might not be attending and that appeared to contradict the conclusions of the Legal Ombudsman that it was reasonable to assume that the fee covered attendance at the screening interview.
  23. Turning then briefly to the legal framework. Part 6 of the Legal Services Act 2007 provides for a system for dealing with complaints about the provision of legal services. Section 113 provides an overview of the scheme and notes that the scheme under which complaints are to be considered is intended to ensure that "complaints may be resolved quickly and with minimum formality by an independent person". Section 114 sets up what is called The Office for Legal Complaints. Section 115 provides for a scheme to be administered by the Office for Legal Complaints. The Act further provides for the appointment of a Chief Ombudsman and an Assistant Ombudsman to carry out the relevant duties under the Act and the scheme. There is provision for complaints to be made and for the ombudsman scheme to deal with those complaints (see section 125 of the Act). At section 137(1) the Act says the following:
  24. "A complaint is to be determined under the ombudsman scheme by reference to what is, in the opinion of the ombudsman making the determination, fair and reasonable in all the circumstances of the case."
  25. Popplewell J has given a full and helpful description of the way in which the ombudsman scheme works in the case of Crawford, R (on the application of) v The Legal Ombudsman & Anor [2014] EWHC 182 (Admin). At paragraph 16, Popplewell J sets out the basic provisions of the Act. At 17 to 19, Popplewell J refers to the rules and the evidence and the inferences that may be drawn in connection with evidence that has been provided or not provided. At paragraph 20, Popplewell J says this:
  26. "These provisions illustrate two important aspects of the scheme:
    (1) It is intended to resolve complaints swiftly and informally. In order to achieve this, the Ombudsman will often have to do the best he can on limited material and without hearing detailed evidence. To assist in these objectives, he can rely on evidence which would not be admissible in court, and may draw adverse inferences from failure to provide information or documents.
    (2) In resolving complaints by reference to the statutory criterion of what is fair and reasonable in the circumstances, the Ombudsman is afforded a considerable latitude of discretion. The test is what 'in his opinion' is fair and reasonable. He is not bound by the Approved Regulator's code of conduct, although he must take account of it. He may apply his own standards of what he considers to have been good practice at the time."
  27. Paragraph 21 reminds the reader that the court does not put itself in the position of the Ombudsman and does not test the reasonableness of the decision against the decision the court would make if it were considering the matter and if it were exercising the statutory powers. What the court does is to review the decision of the Ombudsman to determine whether or not it is legally flawed. The decision may only be overturned on established public law grounds. There are a number of formulas which capture that and a number of ways in which public law errors are described.
  28. Dealing then with the facts in this case, the key issue is whether or not the decision of the Legal Ombudsman of the 27 September 2012 is legally flawed. The key conclusion relates to the 13 November 2012 screening interview. The letter of the Ombudsman concludes that the claimant had initially said they attended the interview but then had corrected this assertion and said they did not attend. The Ombudsman concluded that there was no evidence to support the contention that they attended the first interview on 13 November.
  29. In my judgment, that aspect of the Ombudsman's conclusion is not legally flawed. On the material that she had before her, contradictory and inconsistent though it sometimes was, she was clearly entitled to draw the conclusion that the claimant's solicitors had not attended at the interview on 13 November 2012. It is now accepted, as I understand it, by the claimant that they did not in fact attend the screening interview on 13 November 2012.
  30. However, the difficulties arise in relation to the next set of conclusions that the Ombudsman draws following on from the conclusion that the claimants had not attended the interview on 13 November 2011. There are three strands to the Ombudsman's reasoning. First, she says that the claimant has provided no evidence that they explained that they were not going to attend to Miss Qureshi. Secondly, the Legal Ombudsman considered that they had provided no evidence as to why they now thought representation was not required. Pausing there, that seems to be an indication that the Ombudsman thought that there was no evidence presented initially that they would not attend but there had been a change of view on the part of the solicitors and now, i.e. in about mid 2012, they did not think representation was required. Thirdly, the Ombudsman was of the view that it was reasonable to assume that representation at a screening interview was included in the fixed fee that the firm was charging.
  31. I deal with the matter in this way. I consider first the second and third strands of the Ombudsman's reasoning, that is the indication that there was no evidence to explain why the solicitors now thought representation at the screening interview was not required and the reasoning that it was reasonable to assume that representation at the screening interview was included in the fixed fee. There was, in my judgment, material before the Legal Ombudsman indicating that the fee may not include attendance at the screening interview which took place on 13 November 2012. The attendance note of 7 November 2011 expressly set out the difference between the screening interview, which would take the basic details, and the later substantive interview. It said that the solicitors may accompany Miss Qureshi to the screening interview, whereas they would accompany her to the substantive interview. Given that it was clearly envisaged from the very beginning that the solicitors may not accompany the interested party to the screening interview, it must have been possible for the fixed fee not to include representation at the screening interview. It is therefore not easy to see on what basis the Ombudsman can assume that it is reasonable to work on the basis that the fixed fee did include representation at the screening interview.
  32. Secondly, there is some explanation in the 7 November 2011 file note as to why it would not be necessary to have solicitors represent her at a screening interview as compared with later substantive interviews. It explains that the first interview, the screening interview, is arranged to take basic details and to establish identity and so forth. So again the Ombudsman's conclusion that it was only later that the claimant thought representation was not required does not accord with the evidence. The letter of 10 July 2012 draws attention to this in the paragraph I set out in which they asked the Ombudsman to note that during the meeting with Miss Qureshi on 7 November 2011 she was told in detail about the procedure relating to the screening interview as well as the substantive interviews and it referred to, and said it enclosed, the attendance note of 7 November 2011.
  33. So, in my judgment, there was material before the Legal Ombudsman to suggest that two of the three strands of her reasoning was not in fact correct. In my judgment, those facts alone would justify quashing this part of the decision letter. The error can be expressed in a number of ways. It is illogical to reach the conclusion that she has reached in the face of the contrary evidence and when there is no other evidence to support her conclusion. Conversely, she may have failed to have regard to material considerations, namely the fact that there was material explaining that the solicitors may not attend the screening interview and explaining why it was not necessary for them to be there and yet she appears not to have taken that into account.
  34. I turn then to the first ground of her reasoning and the fact that this claimant was said not to have explained to Miss Qureshi they would not be attending with her on 7 November 2013. Reading the handwritten attendance note of 10 November 2011, that, as I interpret it, does say that Miss Qureshi was told the claimants would be attending the substantive interview and by clear implication would not be attending the 13 November screening interview. Read at face value, that attendance note would appear to contradict the complainant. It would appear to be irrational and illogical to reach a conclusion that the interested party was not told the claimants would not be attending in the light of that attendance note. It would be contrary to the statement in the Ombudsman's letter that the claimant provided no evidence that it was explained to Miss Qureshi that the claimant would not be attending the screening interview. It was that apparent conflict between the attendance note and the Ombudsman's decision which troubled Jay J when he granted permission.
  35. The defendant, the Legal Ombudsman, says in its skeleton argument that the Legal Ombudsman did not receive a copy of the attendance note. Pausing there, the Legal Ombudsman has not put in a witness statement in this case. I accept that in some instances when all the material that is necessary is contained in a decision letter it may not be necessary for a witness statement to be provided. In the circumstances of this case, however, it is unfortunate that the Legal Ombudsman did not put in a witness statement given that there are said to be clear factual issues in dispute as to whether or not an attendance note referred to in a letter had in fact been sent to the Legal Ombudsman. In my judgment, it was necessary for the Ombudsman to explain that matter. Judicial review is a process of supervision over public bodies. Public bodies routinely co-operate with the courts and routinely provide all the information necessary to enable the courts to review their actions. That may mean that a court will set aside their actions but public authorities recognise that proper scrutiny of their powers is a necessary part of the rule of law. It is therefore unfortunate that the Ombudsman has not put in any witness statement in this case.
  36. So I then turn to the question of whether or not on the balance of probability this note was or was not received by the Ombudsman. Looking first at the contemporaneous material, the letter of 10 July 2012 expressly refers to the attendance note of 10 November 2011 and says "kindly refer to the enclosed attendance note". There are no contemporary documents in the bundle before me emanating from the Legal Ombudsman to indicate that the attendance note was not enclosed. I have not been shown any letter or email or telephone note in which any member of staff from the Legal Ombudsman's office challenged the statement that the attendance note of 10 November 2011 was not included. There is no witness statement from the Legal Ombudsman or any member of staff stating that the note was not enclosed with the letter of 10 July or stating that it was never received. There is no witness statement explaining the Legal Ombudsman's decision making process in this case.
  37. The only document that I have been referred to is a preaction protocol letter written by the solicitor having conduct of the matter on behalf of the Legal Ombudsman. That is not a contemporaneous communication. It is dated 15 November 2012, some months after the letter of 10 July 2012 and about a month and a half after the decision letter. There is no suggestion that the person who wrote the preaction protocol reply, who appears to have been a paralegal acting on behalf of the General Counsel, had had responsibility for dealing with matters. He would have been setting out as best as he had understood from his instructions what he had been told but, in my judgment, a preaction protocol reply is no substitute for contemporaneous documentation or a witness statement by the person who actually dealt with the complaint. There is also a document which comprises 52 paragraphs. It is entitled the first ground defendant's detailed grounds of contesting the claim. The document that I have been provided with, and which is included in the bundle, does not include a statement of truth, does not really do more than repeat in substance the matters in the preaction protocol and so far as one can tell was prepared by a member of the legal staff on 28 November 2013. There is no indication that that member of the legal staff actually dealt with the claim and was giving evidence of her own involvement and it is written some 18 months after the letter of 10 July 2012 when it was said that the letter was sent.
  38. In the absence of a witness statement, the best this court can do is consider on the balance of probability whether or not the attendance note of 10 November 2011 was enclosed with the letter of 10 July 2012. In my judgment, on the balance of probabilities it was enclosed. The letter of 10 July 2012 refers to it. The letter of 10 July 2012 refers to other attendance notes and letters. There has been no suggestion that the other letter and the other attendance note was not received and it is only the 10 November 2011 attendance note that it is said has not been received. There is no contemporaneous evidence to indicate that it was missing or not received by the Legal Ombudsman. Given they had received some of the material referred to and given the absence of any indication that they have not received this particular attendance note, in my judgment, on the balance of probability, the note was enclosed with the letter of 10 July 2012.
  39. In those circumstances, the decision of 27 September 2012 is unlawful for an additional reason to those which I have already given. It is irrational in the sense that it is illogical to say that there was no evidence that Miss Qureshi was told that the solicitors would not be going with her to the meeting on 13 November 2011 when the attendance note of 10 November 2011 does properly interpreted say that.
  40. Given the unsatisfactory state of the evidence, I have considered what the position would be if I had found that the attendance note was not enclosed with the letter of 10 July 2012. Normally, the position is that it is for the solicitors about whom complaint is made who must put forward their case to the Ombudsman and must supply the relevant evidence. The letter of 10 July is itself confusing when it suggests that the screening interview took place on 16 November 2011, although, as I say, it can also be read as indicating that they were intending to say that they attended the meeting on 16 November 2011. As Jay J says at paragraph 9 of his judgment, it is extremely unfortunate that the matter was put before the Legal Ombudsman in such an unclear, garbled and ungrammatical way. It is clear that the claimants have not assisted their case in the way they have changed their factual position and in the confused and grammatical and on occasion barely comprehensible way in which they have put forward their side of the story. The Ombudsman's process is meant to be a relatively informal process. It is dealing with solicitors, who are professionals. The solicitors are expected to respond to complaints factually, accurately and fully. Solicitors are, after all, professionals, part of whose role is the communication of information in an accurate and comprehensible form. The claimant is a firm of solicitors. It did not respond in a way which was factually accurate and when it sought to clarify matters, it did so in a way which was not clear and which was sometimes barely comprehensible.
  41. Nonetheless, standing back from the detail of the matter, there was, in my judgment, just sufficient material disclosed to the Legal Ombudsman in this particular case to raise the prospect that Miss Qureshi had been told that the claimants would not attend the screening interview. The letter of 10 July 2012 says in the second and third bullet points that they had received a letter from the UK Border Agency confirming the screening interview of 13 November 2011. It says she was contacted to discuss the process of the screening interview. It says that she was told about the screening interview and it refers to the attendance note of 10 November 2011. In those circumstances, there was, in my judgment, sufficient information provided to mean that the Legal Ombudsman simply could not safely make the assumption that she did in the letter of 27 September 2012, that the non-attendance of the solicitors had not been explained to Miss Qureshi. She simply could not have been sure about that if she had not got a copy of the attendance note of 10 November 2011 because it is clearly being said that that letter records what Miss Qureshi was told about the screening interview.
  42. So in the very particular circumstances of this case, in my judgment, the Legal Ombudsman did err in failing to consider obtaining the attendance note of 10 November 2011, if in fact it was not included with the letter of 10 July 2012. So whichever way one considers the matter in relation to the attendance note, either the Legal Ombudsman had it, which is what I find, and her decision is irrational, or if she did not have it, then on the facts of this case she erred as a matter of law in failing to obtain it.
  43. In addition, as I say, for the earlier separate reasons the decision is flawed because of the assumptions that it makes in relation to the fee including attendance at the screening interview and the assumption that there had been no explanation of why the screening interview may not require attendance on the part of the solicitors.
  44. For those reasons, I do consider that the decision making process is flawed. I will therefore quash that part of the decision of the Legal Ombudsman that upheld Miss Qureshi's complaint in relation to the non-attendance of solicitors at the screening interview on 13 November 2011, I quash the decision of the defendant that the claimant should reduce its fees by 300 and I quash the decision that they should pay 100 because of the detriment caused.


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