Md Abu Sufian, R (on the application of) v Legal Ombudsman

Introduction

The Legal Ombudsman has jurisdiction to determine complaints raised by consumers about legal service providers. When doing so, the Ombudsman focuses on what, in his/her opinion, is fair and reasonable in all the circumstances of the case. The scheme is designed to provide a relatively speedy outcome, without excessive formality or legalism, and affords considerable procedural and decision-making discretion to the Ombudsman.

This Court nonetheless retains a supervisory function by way of judicial review. In this case, two decisions of the Ombudsman were reviewed for public law error: (i) a decision to uphold (in part) a complaint against the Claimant, Mr Sufian, and award a remedy to the complainant; and (ii) a decision allowing the complainant to accept the decision out of time. The alleged errors relate to the procedure adopted by the Ombudsman, including compliance with the Scheme Rules, and whether the conclusions reached were irrational or infected by material errors of fact.

Factual Background

The Claimant, Mr Sufian, is a barrister specialising in a number of areas, including immigration. He is accredited under the direct access scheme, meaning that he can be instructed by members of the public without them first going through a solicitor.

Between 2016 and 2020 Mr Sufian undertook a number of pieces of work for one particular client. I shall refer to her as “Client N”. Mr Sufian charged Client N fees for this work. The work included:

On 20 July 2020 (Footnote: ¹) and 31 July 2020, Client N complained to Mr Sufian’s Chambers. Her first letter referred to her “immigration case which went up to Judicial Review”. Client N said she had been awarded costs, but that these were then paid direct to Mr Sufian at his insistence and he had financially abused her. She complained he no longer answered her calls. The second complaint letter of 31 July 2020 was not provided to this Court.

Mr Sufian’s Chambers did not uphold the complaint for reasons set out in a response of 25 August 2020. That correspondence stated that the complaint concerned “two different matters on which you instructed us… One is your case before the Court of Appeal and the other is your case for judicial review”. In relation to the judicial review matter, the response referred to a client care letter of 8 September 2018 (see below) which had set the fee at £7,500. That sum was outstanding, minus a deposit of £696 that had been paid. In respect of the Court of Appeal matter, the response referred to a client care letter of 5 February 2019 “which you agreed to with your signature when you were in our chambers”. The response indicated the work had been carried out, the fee was £500 per hour, and that money was outstanding. The letter referred to Client N having authorised payment of costs in the Court of Appeal matter direct to him and that this had been used as part settlement of outstanding fees.

Dissatisfied, on 15 November 2020, Client N made a complaint to the Legal Ombudsman. She completed a form on the internet, complaining that she had engaged Mr Sufian “on my Immigration cases” commencing in 2016. She stated that Mr Sufian compelled her to sign a costs form and had taken all the monies awarded by the Court.

On 9 December 2021, Mr Sufian was told that a complaint had been received. The matter was then queued for assessment.

On 3 February 2023, the complaint was allocated to an investigator within the Legal Ombudsman service, Ms Dawn Nicholson. Ms Nicholson sent Mr Sufian an email to let him know about her appointment. She attached a letter which explained that Ms Nicholson would speak to Client N to fully understand the complaint and then would speak to him. She asked Mr Sufian to retrieve the relevant file and she enclosed a factsheet about investigations.

Later on 3 February 2023, Mr Sufian wrote to Ms Nicholson to say that he had done “a few cases” successfully for Client N and that a “huge sum” was outstanding. He said he was planning to issue proceedings in the County Court in respect of the outstanding fees. He suggested the County Court should decide the matter and said he did not believe it was within the Ombudsman’s jurisdiction. By an email later the same day, Ms Nicholson asked Mr Sufian to set out why he considered this was the case. No response to that request was in evidence before me. In her witness statement filed on behalf of the Legal Ombudsman, Hannah Logue confirmed that no response was before her when she came to make her Final Decision. I accept her evidence on this point.

On 13 February 2023, Ms Nicholson spoke to Mr Sufian and later emailed him to say she was attaching a letter detailing the complaints Client N had asked to be investigated. The covering email asked for the information requested in the letter to be provided by 28 February 2023.

The attached letter set out that Ms Nicholson had confirmed with Client N that the issues being investigated were four in number, as follows:

“1.

The barrister withheld monies awarded by the court to [Client N].

2.

The barrister failed to provide adequate costs information for the work carried out for [Client N].

3.

The barrister asked [Client N] to sign a backdated client care letter months into the retainer.

4.

The barrister failed to inform [Client N] that an award had been made until several months after monies had been received (from the court).”

The letter proceeded to deal with each of those complaints. It set out what the investigator would look at when assessing whether each should be upheld and outlined the information Mr Sufian should provide.

In respect of issue (2), the letter stated that a direct access barrister was expected “to provide clear costs information to a client at the outset of a case”; all client care letters were sought, along with all invoices and correspondence regarding fees. In respect of issue (3), the letter stated that the expectation was that a barrister would provide a client care letter at the outset of the retainer and would not ask a client to sign a letter part the way through the retainer unless the client wished to instruct them on a separate unrelated matter. A request was made for all correspondence within the first month of instruction, along with any correspondence about why an additional/later client care letter was required, and Mr Sufian’s comments on the complaint. Finally in respect of issue (4), the letter expressed the expectation that the client would be regularly updated on their case and as soon as practicable after key events such as a Court award/payment. Relevant correspondence was sought along with a copy of the Court order.

Mr Sufian provided information in response on 27 February 2023. On that day, Ms Nicholson confirmed receipt and said she would be in touch after she had reviewed it.

On 20 March 2023, Ms Nicholson sought further documentation from Mr Sufian as follows:

“● All invoices provided to [Client N] from November 2016 to the present.

● A breakdown of your fees as shown in the Updated Costs Schedule sent to the court of appeal on 19 March 2020 (costs schedule Jan 2017 – Mar 2020).

● Details of what the current position is regarding your fees – what [Client N] owes, what has been offset by the award from the court.”

There were some delays in providing that information. Mr Sufian was ill and his aunt sadly passed away. On 11 April 2023, Ms Nicholson repeated her request. She also told Mr Sufian that there appeared to be two pieces of work carried out for Client N – a judicial review and work in the Court of Appeal – and fees for both totalled £44,598. Mr Sufian was asked whether that was correct. He was also asked whether it was right that Client N had paid £10,862 and that £16,348.50 had been received pursuant to the costs order that had been made by the Court of Appeal. Mr Sufian was also asked for invoices and information communicating costs (in particular the £7,500 fee for the judicial review) and disbursements to Client N. Mr Sufian was asked to respond to the queries and provide “any information you wish me to consider” by 14 April 2023.

Mr Sufian responded to that enquiry on 11 April 2023 stating:

“I did three judicial review and one court of appeal case. Further, I did her indefinite leave to remain application to the Home Office, appeal the immigration decision, representing her in the immigration tribunal…. She was communicated everything you mentioned. [sic]”

Ms Nicholson replied, also on 11 April 2023, indicating Mr Sufian had still not provided the specific information requested, including the fees received from Client N and what had been received from the other side. Further, Mr Sufian was asked for evidence to show that he communicated with Client N regarding all disbursement costs. Finally, Ms Nicholson asked Mr Sufian to clarify the amount Client N owed, and how it was arrived at.

On 14 April 2023, Mr Sufian sent Ms Nicholson a series of emails, each attaching documents which he had photographed with his phone.

On 16 April 2023, he sent Ms Nicholson a breakdown of all amounts he had received from Client N. This showed a total of £17,427 paid towards fees and disbursements over the period of 9 November 2016 to 11 June 2019.

Finally, on 17 April 2023, Mr Sufian sent a breakdown of all fees incurred in relation to all work for Client N. The sum indicated was £47,450.

The Court was provided with the following client care letters that related to the work done by Mr Sufian for Client N:

There was no issue that the majority of these client care letters were before the Ombudsman at the time of the decisions under challenge (Footnote: ²). In her witness statement prepared on behalf of the Legal Ombudsman for these proceedings, Hannah Logue (who, as I shall explain took the Final Decision) indicated that the client care letter of 11 June 2018 was not before her. Further, and although not specifically mentioned in that evidence, the client care letters of 3 November 2016, 11 April 2018 and 14 April 2018 did not appear in the list Ms Nicholson inserted into her Case Decision. Mr Sufian submitted that they had all been provided, and he relied on the various emails he sent to Ms Nicholson on 14 April 2023. On the face of those emails, I agree that it would appear that all of the client care letters were provided (Footnote: ³), and on the balance of probabilities find that they were all before the Ombudsman at the material time.

A specific issue arose in relation to a page of the client care letter of 8 September 2018. Ms Nicholson had said in her Case Decision that this letter did not make reference to fees (Footnote: ⁴). That was also Ms Logue’s view set out in the Final Decision (Footnote: ⁵). After the matter was looked into, it transpired that the copy of the letter of 8 September 2018 that had been provided by Client N to the Ombudsman had page 3 missing. That was the page with the fee information written on it. I was told that the Ombudsman had consulted this copy of the letter when making the decisions under challenge. Mr Sufian submitted he had provided a full copy of this letter to Ms Nicholson on 14 April 2023. Having reviewed the email he referred to (Footnote: ⁶), I accept on the balance of probabilities that this is the case and the full letter (including the page detailing the fee information) was available to the Ombudsman at the material time.

In addition to the client care letters, the Ombudsman was provided with copies of two letters from Client N to the Court of Appeal concerning her costs. The first was dated 8 April 2019 and stated:

“I, [Client N]… would like to confirm that I accept the costs schedule of direct access to [sic] Barrister ABU SUFIAN in regards to the case in the court of Appeal. Mr SUFIAN represented me in the upper Tribunal for Judicial Review directly and since then assisting me in my case as a direct access Barrister.

I would like the master to award the costs in this case and would order to transfer the costs money to Mr SUFIAN directly…”

The second letter, dated 18 March 2020, was the same 8 April 2019 letter, but with a handwritten endorsement stating:

“I, [Client N] can confirm that the costs incurred in the above case is [sic] reasonable and request the court to grant costs according to costs schedule.”

A schedule was attached to both letters totalling £37,098.00 of fees for work between 17 February 2017 and 10 June 2019, along with £1,398.00 of disbursements. As I have explained, the Court of Appeal ultimately awarded the sum of £16,348.50.

On 12 May 2023, the investigator, Ms Nicholson, communicated her Case Decision to Mr Sufian and Client N. This concluded as follows:

Ms Nicholson had regard to the unreasonable service found, the impact on Client N of that service, her vulnerability, and the Court of Appeal’s summary assessment of costs. It was proposed that the barrister refund £4,911.50 and waive all outstanding costs. No VAT was to be added to any of those figures.

Both Client N and Mr Sufian were asked to confirm whether they accepted the Case Decision by 26 May 2023. Client N accepted the Case Decision but Mr Sufian did not.

On 7 June 2023, Mr Sufian provided submissions by email. He argued the decision was disproportionate, unreasonable and unfair. He indicated he had provided all the client care letters. Among other points, he stated that in respect of the judicial review matter in 2018, fees had been agreed at £7,500. He said in respect of “all other cases we agreed a fixed fee and services were provided accordingly”. As for the Court of Appeal case, he submitted that he had billed Client N less than “the client care letter fee rate and she agreed and signed to pay accordingly”. Mr Sufian said in the fee information he had provided he had omitted to include fees of more than £6,000 that were also due. Mr Sufian indicated he would agree to half the fees for the Court of Appeal matter but not the other cases, given they were clearly stated on the client care letters.

On 8 June 2023, Ms Nicholson wrote to Mr Sufian as follows:

“I note that you do not agree with my Case Decision and dispute the fees paid by [Client N]. All of my comments and calculations on fees are based on the information you provided me. You will remember that I wrote to you several times seeking clarification on the exact amounts paid and what they were for. At no time in our correspondence did you suggest that some of the fees shown on invoices issued to [Client N] were for work on another case. All of the evidence relating to fees is contained within the evidence bundle I sent with my Case Decision.

You have also stated that [Client N] did not raise all of the complaints with you that I have investigated. I have checked the complaint correspondence and can see that she complained to you on 20 July 2020 and 31 July 2020 and you responded on 25 August 2020. All of the complaints I have investigated are included in [Client N’s] letters to you, though she has worded them slightly differently than I have.

As you do not accept my Case Decision, I will now ask an Ombudsman to make a Final Decision…”

The matter was then passed to an Ombudsman for a Final Decision.

On 2 August 2023, the Ombudsman, Hannah Logue, reached a Final Decision. This was communicated to Mr Sufian on the same date. The covering letter confirmed Mr Sufian’s comments on the Case Decision had been received and reviewed alongside all the evidence that was provided.

The first head of complaint (withholding monies awarded by the Court) was rejected and Mr Sufian’s service found reasonable. Ms Logue found it was reasonable for Mr Sufian to keep the monies awarded because this was agreed by Client N in the letters she signed to the Court of Appeal.

The second head of complaint (failing to provide adequate costs information) was upheld and Mr Sufian’s service found unreasonable. Although lengthy, I shall extract this part of the Final Decision in full:

“2.1.

I have seen that [Client N] paid the barrister £250 for a conference with the barrister on 10 November 2016. At this conference, the barrister agreed to draft a notice of appeal and skeleton argument for the court of appeal hearing, for a fixed fee of £1,400. He confirmed this within a client care letter the same day, which [Client N] signed.

2.2.

The barrister's invoice dated 19 February 2019 shows that [Client N] paid £700 on 11 November and another £700 on 24 November for this work. This was in line with the fixed fee quoted.

2.3.

However, it also showed that prior to June 2018, [Client N] paid the following:

Date	Work carried out	Fee paid
20 February 2017	Court hearing fee	£700
28 February 2017	Drafting grounds of skeleton argument	£1,000
11 March 2017	Disbursements	£522
26 January 2018	Disbursements	£500
11 April 2018	Conference	£250
14 April 2018	Conference	£250

2.4.

This invoice isn't easy to understand as the charges aren't in date order and it's not clear which charges are fees, and which are disbursements. There are also handwritten notes on the invoice. In addition. I haven't been provided with any evidence of the barrister providing cost information for these charges.

2.5.

I have seen another client care letter dated 22 June 2018, nearly two years later, which said the barrister had been instructed to correspond on [Client N’s] behalf and give her legal advice regarding her court of appeal case. The letter explained that the fee for this was £500 per month, starting in June 2018, until the case was resolved. [Client N] didn't sign this letter and says she didn't receive it until November. I have dealt with this further under the following issue of complaint.

2.6.

Regardless, [Client N] understood she was to pay £500 per month for her court of appeal case from at least November 2018 onwards. However, the barrister's invoice dated 19 February 2019 shows that [Client N] paid three £500 instalments for the court of appeal case on 26 April, 1 June, and 24 July 2017, totalling £1,500. As these dates were before the cost information in June 2018, they weren't charged in line with the cost information provided.

2.7.

The invoice also shows that [Client N] paid £120 for a transcription disbursement on 4 July 2018. Again, 1 haven't seen this was quoted for.

2.8.

On 8 September 2018, the barrister sent [Client N] another client care letter which said that he had been instructed to draft the grounds for judicial review, assist in filing the claim form and prepare and submit the bundle. The barrister didn't provide a fee for this work. [Client N] signed and dated this letter the same day.

2.9.

The barrister's invoice dated 19 February 2019 shows that [Client N] paid a total of £992 on this date for two conferences and the court fee. Whilst this work was in line with the client care letter on 8 September 2018, no cost information was provided.

2.10.

The barrister sent [Client N] another client care letter on 31 December, agreeing to draft a further submission by 30 January 2019 for a fixed fee of £1,000. Whilst [Client N] didn't sign this letter, she paid the fixed fee on 31 December and therefore I am satisfied that she agreed to it.

2.11.

On 4 February 2019, [Client N] paid £400 in cash to the barrister. I understand this was to instruct the barrister in her ongoing immigration case because I have seen a notice of change of legal representative the following day. A client care letter of the same date shows that the barrister was instructed to represent [Client N] in her immigration case at an hourly rate of £500. [Client N] signed this on 11 February.

2.12.

On 13 May, the barrister sent [Client N] another client care letter to assist with the appeal application form and send it to the tribunal for a fixed fee of £1,000. The letter confirmed that the payment had already been received.

2.13.

[Client N] then paid £1,500 on 11 June for the barrister to assist her in filing an application for indefinite leave to remain and submit a Home Office transfer. I haven't been provided with any evidence of the barrister providing cost information for these charges.

2.14.

As explained under issue one, the Court of Appeal ordered the defendant pay [Client N’s] costs on 4 March 2020, for the application for permission to appeal in the amount of £16,348.50. I understand that the barrister kept this award once received, as payment towards his outstanding fees.

2.15.

On 19 March, the barrister wrote to the Court of Appeal, stated that his hourly rate was £450, and he had incurred £37,098 in fees since 17 February 2017 and £1,398 in disbursements, which should be paid by the defendant in full. The Judge didn't agree to these costs as he found them excessive.

2.16.

The evidence shows that the barrister provided client care letters setting out the scope of his work and the fee agreed. However, he then failed to charge in line with the agreed fee and failed to provide clear or regular invoices. This resulted in [Client N] being unaware of what she was being charged for and instead, she paid the barrister ad hoc charges as and when he requested them, regardless of what was agreed within the client care letters.

2.17.

Overall, the barrister failed to provide reasonable cost information throughout his instruction. I have therefore found the service unreasonable for this issue of complaint.”

The third head of complaint (backdating client care letters) was upheld in respect of the client care letter dated 5 February 2019:

“3.1.

[Client N] has said that didn't receive the client care letter dated 22 June 2018 until five months later, in November. She also stated that the client care letter dated 5 February 2019 was backdated to cover work from 10 November 2016.

3.2.

Based on the evidence I have seen; I am unable to say when [Client N] likely received the client care letter dated 22 June 2018. However, there is no dispute that she received it by November 2018. Whilst this letter isn't signed, [Client N] agreed to the terms of it by continuing to instruct the barrister from November onwards.

3.3.

In relation to the client care letter dated 5 February 2019, I have seen that it covers work carried out from 10 November 2016 at an hourly rate of £500. I therefore accept that this is a backdated client care letter.

3.4.

Whilst [Client N] signed this on 11 February 2019, I don't find the barrister were [sic] acting in her best interests by asking her to sign this backdated client care letter. This allowed the barrister to charge for their time between 10 November 2016 to 5 February 2019 at an hourly rate of £500, when this isn't what was agreed during this time. The client care letter doesn't reflect any agreement made prior to 5 February 2019 and therefore I find it unreasonable of the barrister to have backdated it.”

The fourth head of complaint (failing to inform Client N that the Court of Appeal had awarded her costs) was also upheld. Ms Logue said this:

“4.1.

I have seen that the court awarded [Client N] £16,348.50 in costs on 4 March 2020.

4.2.

I haven't been provided with any evidence of the barrister informing [Client N] of this award. However, she does accept that she attended the barrister's chambers prior to making a complaint on 20 July and was informed of the costs award.

4.3.

The evidence shows that it took the barrister up to four months to inform [Client N] that an award had been made by the court. There is no reason for this delay, and I have found the barrister's service unreasonable for this issue of complaint.”

Ms Logue then turned to the issue of remedy. She said she had taken into account Mr Sufian’s submissions on the outcome proposed in the Case Decision. She accepted the actual legal work was of a reasonable quality and recorded the service failings “all relate to the cost information provided”. When deciding what was fair and reasonable to direct in all the circumstances, she said she compared how much Client N reasonably expected to pay with how much she did pay and the total costs incurred. She also noted that Mr Sufian had agreed to a 50% fee refund for the Court of Appeal case.

Ms Logue assessed the amount of fees client N reasonably expected to pay was £16,650, setting out the components of this figure in a table. To this, she added disbursements in respect of a court fee and transcription costs (as these would always have to be paid) but excluded stationery as an unusual charge in respect of which there was no expectation. That totalled £17,298. In the course of so deciding, Ms Logue said:

“the barrister hasn't provided any evidence to show [Client N] agreeing to pay a fixed fee of £7,500 for the judicial review case. … Regarding the court of appeal work, the client care letter dated 22 June 2018 explained that the fee for this was £500 per month, not a fixed fee.”

Ms Logue next looked at what Client N actually paid. She calculated this as £10,862 paid to Mr Sufian, to which she added the £16,348.50 assessed by the Court of Appeal and received and retained by him. That made £27,210.50. This was against a total costs bill which she calculated at £44,598.

Ms Logue then determined as follows:

“The barrister received a total of £27,210.50, despite [Client N] only reasonably expecting to pay £17,298 based on the cost information provided. I have therefore considered proposing the barrister refund the difference of £9,912.50.

However, in an email to our office on 18 April 2023, the barrister informed us that they incurred £7,500 in fees for the judicial review case and the costs schedule shows that they incurred £37,098 for the court of appeal case, totalling £44,598.

If I were to direct the barrister [to] refund £9,912.50, this would result in him receiving a low proportion of his fees (approximately 39%). Putting this into the context of their actual legal work being of a good quality, I don't find this remedy fair.

Directed Remedy

I am directing that the barrister reduce their overall costs of £44,598 by 50%, meaning they can charge a total of £22,299. As the barrister has already received a total of £27,210.50, this results in a refund of £4,911.50 and a waiver of £17,387.50.

To clarify, I haven't proposed a lower refund because the barrister's cost information unreasonably led [Client N] to believe her costs would be approximately £17,298. I haven't proposed a higher refund because the barrister's actual legal work was of a reasonable quality.

Therefore, my Final Decision is that there has been unreasonable service that requires a remedy and direct that the barrister refund £4,911.50 in costs and waive all outstanding costs of £17,387. This makes a total remedy of £22,299.”

Client N was asked to indicate by 16 August 2023 whether the Final Decision was accepted by her.

On 17 August 2023, the Ombudsman wrote to Client N stating that as nothing had been heard, it was assumed that she did not want to accept the Final Decision. By a letter of the same date, the Ombudsman wrote to Mr Sufian to say that no response to the Final Decision had been received from Client N and the matter had therefore been closed. The letter continued as follows:

“In exceptional circumstances, the ombudsman may allow a complainant to accept a decision after the deadline for acceptance has passed. If this happens, we will let you know as soon as possible, as the ombudsman’s decision will then become binding and enforceable.”

On 21 August 2023, Client N emailed the Legal Ombudsman saying that she thought she had already accepted the decision. There was then communication between the Legal Ombudsman and Client N after which, on 25 August 2023, the Ombudsman made a decision to allow Client N to accept the Final Decision out of time (“the Acceptance Decision”). This was communicated to Client N and Mr Sufian by letter of the same day. The letter to Mr Sufian stated:

“I was contacted by [Client N] on 21 August 2023 to confirm that she has accepted the ombudsman’s final decision.

As you may be aware her acceptance has come after the deadline date. The ombudsman has reviewed the circumstances surrounding the late response and has, on this occasion, agreed to allow it …

The decision is now binding and enforceable, which means that your firm need to carry out the ombudsman’s final decision by 11 September 2023. If your firm do not do so, the decision can be enforced through the courts.”

Ms Logue’s witness statement explains how she reached the Acceptance Decision. She says she considered Rule 5.51 of the Scheme Rules which provides as follows:

“If the complainant does not tell the ombudsman (before the specified time) that he/she accepts the determination, it is treated as rejected unless:

a)

The complainant tells the ombudsman (after the specified time) that he/she accepts the determination; and

b)

The complainant has not previously told the ombudsman that he/she rejects the determination; and

c)

The ombudsman is satisfied that there are sufficient reasons why the complainant did not respond in time.”

Ms Logue explains Client N informed the Ombudsman service that she accepted the decision on 24 August 2023, before which there was no previous rejection. As for requirement (c), Ms Logue states that she determined there were sufficient reasons why Client N did not respond in time. These were that the complainant genuinely thought she had accepted the Final Decision (having previously accepted the investigator’s Case Decision, the findings of which were agreed with in the Final Decision) and that the delay in question was short.

Mr Sufian emailed the Ombudsman on 8 September 2023 indicating that he did not accept the decision. Pre-action protocol correspondence followed on 24 October 2023.

These Proceedings

Judicial review proceedings were commenced on 31 October 2023. Mr Sufian identified the Ombudsman’s Final Decision of 2 August 2023, and the Acceptance Decision of 25 August 2023 as the targets for the claim.

In the Statement of Facts and Grounds Mr Sufian advanced his complaints under a number of topic headings: (i) breach of human rights, in particular article 6 of the European Convention on Human Rights (“ECHR”); (ii) the decisions permit Client N to breach her contract with Mr Sufian; (iii) the decisions were unreasonable in the sense outlined in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223; (iv) the decisions were irrational; and (v) the decisions were procedurally improper. A number of those headings overlap and the sub-complaints raised under the headings did not always neatly correspond to the relevant topic.

The Legal Ombudsman filed its Acknowledgment of Service and Summary Grounds of Resistance on 24 November 2023. The Defendant contended the claim had been brought with excessive delay and denied that any of the grounds were arguable.

On 16 April 2024, the papers were considered by Dexter Dias KC, Deputy High Court Judge (as he then was). He granted an extension of time so that both the Final Decision and Acceptance Decision could be considered, but he decided permission should be refused.

Mr Sufian renewed his application for permission at a hearing on 18 July 2024 before Foster J. Permission was granted without limitation. A transcript of that hearing was before me. In her Order, Foster J observed:

“It is arguable that the Defendant has not understood the Claimant’s case (which it is fair to say is not put very clearly and should be set out in a clear annotated chronology for use by the Court) and that in the circumstances the size of the imposed financial penalty is arguably disproportionate given that no fault was found with the Claimant’s actual legal services.”

A chronology in partial compliance with the order made by the Judge was served on 15 August 2024. An extension of time was later granted for the service of a revised chronology, to include a list of documentary evidence sent by Mr Sufian to the Legal Ombudsman. That was filed on 3 January 2025.

As I shall explain further below, despite Foster J urging Mr Sufian to advance his case with clarity, it was unfortunate (to say the least) that some of the points he wished to advance remained opaque when the case arrived at final hearing before me.

The Applicable Law

Part 6 of the Legal Services Act 2007 (“the Act”) establishes the Legal Ombudsman Scheme. This is a statutory scheme for the determination of complaints against “authorised persons”. It is intended to provide quick, informal and independent adjudication of complaints, as is evident from section 113(1) of the Act:

“This Part provides for a scheme under which complaints which –

(a)

relate to an act or omission of a person (“the respondent”) in carrying on an activity, and

(b)

are within the jurisdiction of the scheme (see section 125),

may be resolved quickly and with minimum formality by an independent person.”

Scheme Rules (including Rule 5.51 which I have already cited), made pursuant to section 133 of the Act, govern the operation of the scheme: see section 115.

Schemes such as this are intended to be speedy and operated without undue formality or legalism. This principle has been emphasised on a number of occasions: see Maxwell v Office of the Independent Adjudicator [2011] EWCA Civ 1235 at §38 and Miller v HSCE [2018] PTSR 801 at §55. In Maxwell, the point was made that the schemes are not intended to be fully judicial or operated in accordance with civil law trial procedures, with the result that more flexible, constructive and acceptable outcomes can be produced.

Mr Davidson, who appeared for the Legal Ombudsman, also referred me to the Court of Appeal’s judgment in Belsner v CAM Legal Services Limited [2023] 1 WLR 1043. During the course of a detailed judgment concerning a dispute between a client and solicitor in relation to the costs of a low value personal injury claim in a road traffic accident, Sir Geoffrey Vos MR observed that the Legal Ombudsman scheme is a suitable way of dealing with client/solicitor costs disputes. At §15 the Master of the Rolls observed that:

“…it is also unsatisfactory that solicitors like checkmylegalfees.com can adopt a business model that allows them to bring expensive High Court litigation to assess modest solicitors’ bills in cases of this kind. The Legal Ombudsman scheme would be a cheaper and more effective method of querying solicitors’ bills in these circumstances, but the whole court process of assessment of solicitors’ bills in contentious and non-contentious business requires careful review and significant reform”

Section 137(1) of the Act sets out how complaints are to be determined by the Ombudsman:

“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”.

This test is mirrored in Rule 5.36 of the Scheme Rules. By Rule 5.37:

“In determining what is fair and reasonable, the ombudsman will take into account (but is not bound by):

(a)

what decision a court might take;

(b)

the relevant Approved Regulator’s Rules of Conduct at the time of the act/omission; and

(c)

what the ombudsman considers to have been good practice at the time of the act/omission.”

The provisions I have mentioned were explained by Popplewell J (as he then was) in R (Crawford) v Legal Ombudsman [2014] EWHC 182 at §20:

“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 criteria 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”.

One can add that the Legal Ombudsman is not bound by strict legal principles when making a decision – that is why she is not bound by the decision a court might take on a particular matter (although she “will” take that into account). In respect of a similar test applied by the Financial Ombudsman, the Court of Appeal explained in Options UK Personal Pensions LLP v Financial Ombudsman Service Limited [2024] EWCA Civ 541 that the ombudsman “is not required to determine a complaint in accordance with the common law” and that the test “creates a much wider jurisdiction… to reach an opinion about what is fair and reasonable in the circumstances of the particular complaint”: see per Asplin LJ at §73. See also R (Heather Moor & Edgecomb) v Financial Ombudsman Service[2008] EWCA Civ 642 at §§36ff.

The Ombudsman also enjoys a wide discretion to fashion suitable redress for the complainant, although no disciplinary action can be taken by the Ombudsman against the respondent to a complaint (see section 113(2) of the Act). Various permissive redress options are set out at section 137(2) of the Act. These include: a direction that the fees a respondent is entitled to in respect of the services to which the complaint relates are limited to a specified amount (section 137(2)(b)(i)); a direction that the respondent pay compensation to the complainant of such an amount as is specified in the direction in respect of any loss which has been suffered by, or any inconvenience or distress which has been caused to, the complainant as a result of any matter connected with the complainant (see section 137(2)(c)); and a direction that the respondent take, at his/her own expense, “such other action in the interests of the complainant as the direction may specify” (see section 137(2)(e)).

In Miller, the Court of Appeal recognised that the common law imported a duty of fairness on the Ombudsman. That duty falls to be applied in light of the statutory context (see §42). At §55 Ryder LJ emphasised:

“…it is important that this court does not import into the informal, non-judicial process of administrative and complaints adjudicators like the ombudsman the procedures of courts and tribunals. The adjudication process is an informal resolution of a complaint or problem where other remedies are not reasonably available or appropriate. The procedure is a matter entirely within the gift of the ombudsman provided that her decision making process is lawful, rational and reasonable.”

In relation to the scheme in Miller, the Court of Appeal held that fairness required the respondent to be provided with the gist of the allegations, given with sufficient particularity to enable the respondent to have a meaningful opportunity to comment (see §§42-3). In that case, a question arose about whether it was necessary for the respondent to see the actual letter of complaint, or whether the ombudsman’s reformulation was sufficient. At §47, Ryder LJ said (emphasis added):

“I agree that it is necessary for the allegations to be set out with the particularity with which the ombudsman intends to investigate them with the corollary that the particularity must be sufficient for them to be answered in a meaningful and focused way. I do not agree with the implication of the ombudsman’s submission that the ombudsman is entitled to re-craft the complaint. The ombudsman has no general power to investigate what she wants to or expand the complaint beyond its content: R (Cavanagh) v Health Service Comr for England [2005] EWCA Civ 1578; [2006] 1 WLR 1229, paras 16-18, 38-39. It would be better practice simply to disclose the complaint that has been made and identify that which is to be investigated. In this case, the lack of disclosure of the complaint letter or sufficient particulars of the allegations to accord with the duty of fairness was not remedied until the Draft Report was delivered to the doctors by the ombudsman.”

Underscoring the good practice of disclosing the initial complaint, his Lordship explained that “The words used by a complainant and sometimes the style of the complaint can speak volumes and there is no need to withhold the same from those whom it is proposed be investigated” (see §56a). Whilst disclosure of the initial complaint was regarded as good practice, the Court recognised that the minimum standards of procedural fairness could have been met had sufficient particulars of the allegations been provided before a decision was taken (see the emboldened words in the extract I have just cited above). The problem in Miller was that the claimants only had the opportunity to respond to sufficiently detailed allegations by means of responding to a draft of a report containing provisional findings; by that time, the Court found, the decision had been made (see §§17-18, 37, 44-46, 54).

It is also material to observe that, at §48, Ryder LJ held that there was no requirement that the respondents to the complaint be provided with all of the evidence the ombudsman considered. That is because the process is an inquisitorial one, nor an adversarial one: the “process should not be confused with that of the civil courts”. However, “it is an elementary component of procedural fairness that the substance of evidence that is contrary to the ombudsman’s provisional or final conclusions must be disclosed”.

In addition to ensuring that the Ombudsman adheres to minimum standards of procedural fairness assessed in light of the informal nature of the statutory scheme, the Court’s supervisory jurisdiction extends to substantive review of the Ombudsman’s decision. The limits of such review have, however, been emphasised in a number of authorities.

In R (Crawford), Popplewell J summarised the approach the Court will adopt (see §21):

“In exercising powers of review, this court does not put itself in the position of the Ombudsman and test the reasonableness of the decision against the decision the Court would make. It does not review the merits of the decision as if it were exercising the statutory powers itself. To do so would be to subvert the intention of Parliament in vesting the Ombudsman with the function of administering the scheme. His decision may only be overturned as unreasonable if it is unreasonable in the Wednesbury sense … There are a number of different formulations of this well-known and oft-applied test. A common modern formulation is that the decision must be outside the range of reasonable responses open to the decision maker (see e.g. Boddington v British Transport Police [1992] 2 AC 143 at 175H per Lord Steyn). This is a high threshold, particularly in the context of a scheme intended to resolve complaints swiftly and informally in which the decision maker is afforded a wide discretion to do what he thinks is fair and reasonable in all the circumstances. One way in which a decision may pass the threshold is if it is irrational in the proper sense of the word, that is to say if its reasoning is not logically capable of supporting the conclusion (see e.g. R v Parliamentary Commissioner for Administration, ex parte Balchin [1998] 1 WLR 1, 13E-F per Sedley J and R (Norwich and Peterborough Building Society) v Financial Ombudsman Service Ltd [2002] EWHC 2379 (Admin) at [59] per Ouseley J).”

When it comes to assessing the decisions of the Legal Ombudsman he continued (see §25):

“Decisions of the Legal Ombudsman are to be read with a degree of benevolence (see R (Siborurema) v Office for the Independent Adjudicator [2007] EWCA Civ 1365, [2008] ELR 209 at [79]) and should not be construed as if they were statutes of judgments, nor subjected to pedantic exegesis (see Osman v Camden LBC [2005] HLR 325 at [38(9)] per Auld LJ).”

In that extract the learned Judge referred to R (Siborurema) v Office of the Independent Adjudicator[2007] EWCA Civ 1365, in which, at §74, the Court of Appeal explained:

“The decision whether a complaint is justified involves an exercise of judgment with which the court will be very slow to interfere.”

Mr Sufian submitted that the Court could intervene if the Ombudsman made a material error of fact. He relied on E v Secretary of State for the Home Department [2004] QB 1044. In that case the Court of Appeal recognised that a mistake of fact giving rise to unfairness was a separate head of challenge. Analysing R v Criminal Injuries Compensation Board, ex p A [1999] 2 AC 330,Carnwath LJexplained (at §63):

“On analysis, the "unfairness" arose from the combination of five factors: (i) an erroneous impression created by a mistake as to, or ignorance of, a relevant fact (the availability of reliable evidence to support her case); (ii) the fact was "established", in the sense that, if attention had been drawn to the point, the correct position could have been shown by objective and uncontentious evidence; (iii) the claimant could not fairly be held responsible for the error; (iv) although there was no duty on the Board itself, or the police, to do the claimant's work of proving her case, all the participants had a shared interest in co-operating to achieve the correct result; (v) the mistaken impression played a material part in the reasoning.”

At §66, the Court crystalised the appropriate test as follows (emphasis added):

“…Without seeking to lay down a precise code, the ordinary requirements for a finding of unfairness are apparent from the above analysis of the Criminal Injuries Compensation Board case. First, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. Secondly, the fact or evidence must have been "established", in the sense that it was uncontentious and objectively verifiable. Thirdly, the appellant (or his advisers) must not been have been responsible for the mistake. Fourthly, the mistake must have played a material (not necessarily decisive) part in the tribunal's reasoning.”

Mr Davidson accepted that in principle mistake of fact was a ground on which the Legal Ombudsman’s decision could be reviewed (although he did not accept that it was properly raised in this claim: see below).

At one point during the hearing, Mr Sufian sought to persuade me that the Court could interfere on the Ombudsman’s decision on a wider basis than I have set out above – that it was disproportionate. He relied on Foster J’s observations at the permission hearing (see paragraph 54 above), as well as a number of cases in which the Court has conducted a proportionality analysis when applying articles of the ECHR or EU law (Footnote: ⁷) (see R (Quila) v Secretary of State for the Home Department [2011] UKSC 45; [2012] 1 AC 621:proportionality of interference with article 8 ECHR rights; Bank Mellat v Her Majesty’s Treasury (No 2) [2013] UKSC 39; [2014] AC 700: proportionality of interference with article 1 protocol 1 ECHR rights; Pham v Secretary of State for the Home Department [2015] UKSC 19; [2015] 1 WLR 1591: proportionality under EU law where a decision to withdraw nationality would mean loss of EU citizenship (Footnote: ⁸); and R (Lumsdon) v Legal Services Board[2015] UKSC 41; [2016] AC 697: proportionality under EU law where a quality assurance scheme for criminal advocates was challenged as contrary to regulations which implemented EU law).

During his submissions, Mr Sufian accepted, however, that proportionality did not constitute a freestanding domestic basis on which he could challenge the Ombudsman’s Final Decision. I agree; see, for example, R v Secretary of State for the Home Department, ex p Brind [1991] 1 AC 696; and R (Keyu) v Secretary of State for Foreign and Commonwealth Affairs [2015] UKSC 69; [2016] AC 1355 at §§131-133; 281-3, 304.

Nonetheless, Mr Sufian relied on his article 6 ECHR rights (Footnote: ⁹) and submitted that if they were infringed, any such interference would need to satisfy the ECHR’s proportionality test.

In the Summary Grounds of Resistance, the Ombudsman took the preliminary point that article 6 ECHR was not engaged because, as the opening words of the article make clear, it only applies “[i]n the determination of [a person’s] civil rights and obligations or of any criminal charge against him…”. The Ombudsman contended that there was no such determination because under the scheme the Final Decision is not binding unless the complainant voluntarily agreed to accept the conclusion. That argument was not pursued at the hearing. Mr Davidson instead focused on other submissions: that article 6 added nothing to the common law requirements of fairness, and that the procedure utilised in the present case was fair (see further below). I consider Mr Davidson was right not to pursue the preliminary point. The Court of Appeal accepted article 6 was engaged in respect of the similar Financial Ombudsman Service scheme in R (Heather Moor & Edgecomb) (see §42). The rationale seems to me equally applicable here. Whilst the complainant has the ability to choose not to accept the Ombudsman’s conclusion, that option is not available to someone in the position of Mr Sufian. Instead, the Ombudsman’s Final Decision was imposed involuntarily on Mr Sufian and had legal consequences for him.

That said, I do not consider that Mr Sufian’s reliance on article 6 ECHR, or his points on proportionality, advance his case. As I have explained above, the common law imposes minimum standards of fairness. Those standards seem to me to reflect the essential requirements of article 6. To the extent the minimum standards of fairness are not complied with the Court can and will intervene. In this regard, I note that the Court of Appeal found the similar Financial Ombudsman Service scheme to be compatible with article 6 and article 1 of protocol 1 ECHR in R (Heather Moor & Edgecomb).In these circumstances, the Court will not need to consider whether any infringement of article 6 rights are proportionate.

Analysis

The proper focus for this claim is Mr Sufian’s Statement of Facts and Grounds for judicial review. I shall address below the various complaints made in that document.

Mr Sufian raises a number of specific matters under headings of “Breach of Human Rights” and “Procedural Impropriety”.

First, Mr Sufian complained that the Ombudsman failed to disclose Client N’s original complaint despite his requests, and this prevented him from knowing the full nature of the allegations and preparing a complete defence. He said this amounted to a breach of natural justice. The Ombudsman, by contrast, denied this caused any prejudice to Mr Sufian’s defence; it relied on its letter setting out the scope of the complaint dated 13 February 2023.

As I have already explained, a similar point was advanced in the Miller case. There, the Court of Appeal considered that, in the context of the applicable scheme, it would have been good practice to have disclosed the complaint. I consider that this observation is equally appliable in this case. No good reason was advanced in the evidence before me as to why the originating complaint could not have been sent to Mr Sufian. As was explained in Miller, there were potential benefits to doing so: Mr Sufian would thereby have been able to see the words, style and tone of the complaint against him.

However, the question for the Court is not whether the Ombudsmen complied with good practice but whether the minimum standards of fairness were departed from. The issue here is similar to that in Miller: was the gist of the allegations given to Mr Sufian with sufficient particularity to enable him to have a meaningful opportunity to comment upon them before the decision was made?

In my judgment the answer to that question is that they were. In the present case the Ombudsman sent to Mr Sufian a detailed letter dated 13 February 2023 explaining the four matters that were going to be investigated and what issues arose under each. It sought relevant information in relation to each of the four matters in order to help Mr Sufian respond and the Ombudsman make a decision. In my view, this document put Mr Sufian on notice of the matters that were being considered by the Ombudsman. It followed a discussion between Client N and the Ombudsman during which the original complaint was clarified and the scope of the investigation set. In the context of an informal process of the type I have described, I consider it was open to the Ombudsman to meet the need to put Mr Sufian on notice of the issues of concern in this way. Unlike Miller, the letter was sent prior to any decisions being made by the Ombudsman. It was, in my view, a lawful, rational and reasonable way for the Ombudsman to proceed. I therefore conclude that there was no breach of the common law duty of fairness, or article 6 ECHR, in this respect.

Mr Sufian next argued that Client N’s complaint to the Ombudsman was presented outside of the time limit imposed by the Scheme Rules and should not have been considered. He argued no explanation for this course of action was provided.

Mr Davidson submitted that this ground of challenge was misconceived. He argued that Mr Sufian had not warned Client N of the six-month time limit contained in Scheme Rule 4.4 and therefore that time limit did not bite.

Scheme Rule 4.4 provides as follows:

“a)

This time limit applies only if the authorised person’s written response to a complaint included prominently:

• an explanation that the Legal Ombudsman was available if the complainant remained dissatisfied;

• full contact details for the Legal Ombudsman; and

• a warning that the complaint must be referred to the Legal Ombudsman within six months of the date of the written response;

b)

If (but only if) the conditions in (a) are satisfied, a complainant must ordinarily refer the complaint to the Legal Ombudsman within six months of the date of that written response.”

I agree with the Legal Ombudsman’s argument that Client N’s complaint was considered in accordance with the Scheme Rules and that the six-month time limit, contained within Rule 4.4, did not apply. Mr Sufian’s written response to Client N did not include the matters prescribed by Rule 4.4(a) and therefore the time limit in Rule 4.4(b) was not triggered. It follows that there was no requirement on the Ombudsman to explain consideration of the complaint outside of an applicable time limit.

Mr Sufian’s next argued that the Ombudsman had exceeded her jurisdiction in two ways:

In both respects, Mr Sufian objected to the Ombudsman having made rulings covering three separate cases in which he acted for Client N whereas her complaint to him, and to the Ombudsman, was limited to just one. Further, he added that Client N did not fully exhaust his complaints procedure in relation to the one case she did complain about because he had asked for details in his response and she did not reply.

The Ombudsman argued that this ground was misconceived. Mr Davidson submitted that the Ombudsman’s jurisdiction is inquisitorial not adversarial, and that the Ombudsman’s task is to deal with complaints as opposed to strict legal causes of action. He referred to Full Circle Asset Management Ltd v Financial Ombudsman Service[2017] EWHC 323 (Admin) in which this principle was stated, by reference to authority, at §53. In Full Circle the Court considered whether the Financial Ombudsman was confined to what had appeared in a complaint form when investigating a dispute. Nicol J held it was not. At §§54-55, the learned Judge held that the Ombudsman was entitled to look more widely at correspondence passing between the client and advisor. The Ombudsman was not confined to what appeared in the relevant box on the complaint form. Further, the opening paragraph of the Ombudsman’s determination “was no more than a summary and introduction to the determination; it set no limits on what the Ombudsman could properly do”.

Mr Davidson also referred to R (TenetConnect Services Limited) v Financial Ombudsman [2018] EWHC 459 in which Ouseley J held at §47 that:

“…[t]he Ombudsman Scheme is intended to be an informal, reasonably speedy procedure for the resolution and remedying of complaints, without the precise definition which pleadings are intended to bring to a legal claim. He [the Ombudsman] is ideally placed to reach a judgment on what the complaint is about and whether it falls within the scope of his jurisdiction”.

Finally, Mr Davidson relied on R (Rosemarine) v The Office for Legal Complaints [2014] EWHC 601 (Admin), in which HHJ Davis said this at §§69-70:

“69.

The claimant's case is that the Legal Ombudsman only has jurisdiction in relation to complaints made by the client about the lawyer which are covered by the Act and the rules. The claimant's case is that unless and until a complaint (defined by rule 1.6 as “an oral or written expression of dissatisfaction”) is made, and communicated both to the lawyer and the Legal Ombudsman, and unless and until the lawyer has had the opportunity to address it under the internal complaints procedure, the Legal Ombudsman has no jurisdiction. The claimant's case that these pre-conditions were not satisfied here in relation to the complaints handling complaint, with the result that the Legal Ombudsman had no jurisdiction and/or it was unfair for the Legal Ombudsman to determine it.

70.

Mr Cornwell's primary submission in response to this complaint, which I accept, is that neither the Act nor the rules requires the complaint to be set out formally, in the same way either as a statement of case in civil litigation or as a detailed series of allegations in disciplinary proceedings. Instead what is expressly required is a speedy and informal process, and the issue of fairness has to be considered in that context. The rules permit the complaint to be made orally or in writing, and to amount to no more than an expression of dissatisfaction. The Legal Ombudsman may, but is not obliged, to require a complainant to complete a complaints form. All of this demonstrates quite clearly in my judgment that subject to overriding considerations of fairness the court ought not to adopt too technical an approach to this question. I am satisfied that so long as the overall process was fair the Legal Ombudsman would be entitled to allow the ambit of a complaint to be extended to cover other matters of complaint raised by the complainant after the initial complaint, and connected or related to the subject matter of the initial complaint, whether or not they relate to matters arising before or after the date of the complaint.”

I accept the approach outlined in these authorities is applicable. In particular, it would be wrong to take a technical view of the way complaints are expressed to practitioners or to the Ombudsman. A complaint is not the same as a legal cause of action and can be raised more generally, and by necessary implication lead to other considerations. Nonetheless, there are limits as the Miller case underscores: the ombudsman is not entitled to re-craft a complaint that is made to her and has no general power to investigate what she wants to or expand the complaint beyond its proper content (see §47, set out above).

Having considered Mr Sufian’s points carefully, I consider they are not well founded.

Turning first to Client N’s complaint to the Ombudsman, this is set out on the complaint form. Client N refers to Mr Sufian’s services “on my Immigration cases”. She explained:

“He represented me until my case was decided at the High Court. He commenced representation in 2016 and would make my applications as though I were to be representing myself until 2018 when he found that I would win the case, then he requested the correspondences to be sent to his office. My case was in respect to Immigration status”.

Client N said the impact of Mr Sufian’s service was “Financial loss. Emotional Impact”. In another part of the form, Client N stated:

“I received financial compensation order from the court. I was coerced by [Mr Sufian] to request for the payment to be made directly to him. He manipulated me in his own interest and promised to return monies I paid to him once the financial order was approved. Immediately it was approved, he requested that I sign another financial request order different from the approved one and until that one is approved, he shall not give me back what I paid to him. He has intimidated me and has demonstrated this is how he has been treating his clients. His behaviour is such that has brought disrepute to the profession he should have held in high esteem.”

Later Client N continued:

“He represented me in immigration proceedings and compelled me to sign cost form without my costs being returned to me. [Mr Sufian] took all the monies awarded to me by the Court and did not return any of my expenses upon asking for it, he threatened me and I find that very criminally minded and unkind. I would like that this agency look into his actions, as he must be doing same with other clients.”

Mr Sufian sought to draw sharp dividing lines between the different matters or cases he was instructed to pursue on Client N’s behalf, and to limit the Ombudsman’s jurisdiction accordingly. In my judgment that is not the correct approach; it is not in line with the authorities I have described. In my view the complaint form completed by Client N plainly entitled the Ombudsman to look at Mr Sufian’s service across all of Client N’s immigration matters (indeed, the complaint expressly referred to her immigration cases over a period). Further, it would be wrong to take an overly technical approach to the subject matter of the complaints raised. That would be akin to requiring precise pleaded causes of action, whereas the process is intentionally more informal. Given what was raised in the complaint form, in my view the Ombudsman was entitled to clarify the scope of the complaint, and then to investigate, the matters identified in the letter of 13 February 2023. It is clearly important that Mr Sufian knew what was being investigated, but as I have explained, that information was given to him in the Ombudsman’s letter of 13 February 2023.

Nor, for similar reasons, do I consider that the contents of Client N’s internal complaint letters to Mr Sufian prevented the Ombudsman from investigating what she did. True it is that section 126(1) of the Act required Client N to use Mr Sufian’s complaint procedure “in relation to the complaint”, however this is not to introduce a requirement that there be technical correspondence between each and every precise matter raised with Mr Sufian and the Ombudsman before the latter has jurisdiction to investigate. To compartmentalise in this way would in my view run contrary to the informal process that Parliament intended.

As to the letters here, Client N’s 20 July 2020 letter to Mr Sufian referred to her dissatisfaction with an “immigration case which went up to Judicial Review” and that Mr Sufian had insisted on the costs award being paid to him. The subsequent 31 July 2020 letter was not provided to the Court. Mr Sufian’s reply to the letters made clear that he understood Client N to be complaining not only about the 2016 judicial review case, at first instance and which ended up in the Court of Appeal, but also the subsequent 2018 judicial review.

In all the circumstances, I am satisfied that Client N did use Mr Sufian’s complaint procedure in relation to her complaint. To conclude otherwise would in my judgment require the adoption of the over technical approach that is deprecated in the authorities. There was therefore no jurisdictional bar on the Ombudsman adjudicating as she did.

Mr Sufian had a supplemental point that Client N had not responded to requests he made in his reply to her complaint letters. Section 126(1) of the Act requires the complainant to “use” the respondent’s complaint procedures. It does not require the complainant to comply with requests made by the authorised person in response to that complaint as a pre-condition to subsequently complaining to the Ombudsman. I therefore unhesitatingly reject this argument.

A final point in relation to Mr Sufian’s jurisdictional challenge concerns his reliance, in the Statement of Facts and Grounds, on having emailed the Ombudsman indicating that she lacked jurisdiction. I do not consider there is anything in this point. When Mr Sufian intimated a lack of jurisdiction, the Ombudsman asked him (by email of 3 February 2023) to set out why he did not believe the complaint was within the Ombudsman’s jurisdiction. Mr Sufian failed to respond. Whilst I have nonetheless considered the point as advanced to the Court, I do not consider the Ombudsman can be criticised in light of Mr Sufian’s lack of response.

For all these reasons, this ground of challenge is not well founded.

Mr Sufian next complained the Defendant failed to follow its own procedures and acted unfairly by advising him on 17 August 2023 that the case was closed, only to reverse the position on 25 August 2023 in the Acceptance Decision. He argued that the Ombudsman did so by allowing Client N to accept the Final Decision out of time without providing any explanation of the “exceptional circumstances” that would be required to do so.

The Defendant denied any failure to follow procedure, or unfairness. It relied on the Scheme Rules (in particular Rule 5.51), and the rationale given by the Ombudsman in her witness statement. I have already set out both out above: see paragraphs 47 and 48.

The structure of Scheme Rule 5.51 is such that a final determination is treated as rejected unless three criteria are satisfied. The first two criteria are factual in nature and it is common ground in this case that they were satisfied: Client N told the Ombudsman after the requisite period that she accepted the determination, and she had not previously said she rejected it. The third criterion is that the Ombudsman must be satisfied that there are “sufficient reasons why the complainant did not respond in time”. Whether there are such sufficient reasons is expressly said to be a matter about which the Ombudsman must be satisfied. The decision is therefore primarily for the Ombudsman. The Court cannot interfere with an assessment unless the conclusion is irrational, or some other public law error can be established.

In the present case Ms Logue has explained why she was so satisfied in her witness statement: see paragraph 48 above. In my judgment she considered legally relevant factors and reached a conclusion that was perfectly rational.

It follows that I do not accept that the Ombudsman failed to follow its own procedures. It is clear that Rule 5.51 was followed and applied. I further do not consider that Mr Sufian can establish any other public law error in respect of the decision to allow Client N to accept the determination out of time. The letter of 17 August 2023 to Mr Sufian stated clearly that whilst the matter had been closed, in exceptional circumstances the Ombudsman may allow acceptance after the deadline and, were that to happen, the determination would then become binding and enforceable. Mr Sufian therefore knew it was a possibility that Client N could still be permitted to accept out of time.

For these reasons this part of the complaint is not well founded.

The final point raised by Mr Sufian is that the Defendant “made findings of facts which are not consistent with the material evidence”. This is a complaint of a different character and I deal with it below under the heading “Mistake of Fact”.

Standing back, I am satisfied that overall the procedure adopted by the Ombudsman met the minimum standards of fairness required in all the circumstances. The complaint, as clarified, was one that was open to the Ombudsman to investigate. The scope of that investigation was notified to Mr Sufian in a detailed letter which asked him to provide answers to specific queries and afforded him an opportunity to respond generally prior to a decision being taken. The investigator then took account of the submissions received and issued an initial Case Decision. Mr Sufian then had a further opportunity to consider and comment before a Final Decision was reached by the Ombudsman. It was open to the Ombudsman to decide, in accordance with the Scheme Rules, to allow Client N to accept the Final Decision late.

In his Statement of Facts and Grounds, Mr Sufian complained that the Final Decision of the Ombudsman permitted Client N to avoid the consequences of her contract with him. He argued it deprived him of his right to an equitable lien over funds recovered as a result of successful litigation: see Gavin Edmondson Solicitors Ltd v Haven Insurance Co Ltd[2018] UKSC 21; [2018] 1 WLR 2052 at §1.

Mr Davidson, for the Legal Ombudsman, argued that the ground was misconceived. The whole purpose of the scheme was to allow the Ombudsman to make an award which avoided or modified the effect of a contract between a lawyer and client and instead reflected what the Ombudsman considered a fair and reasonable resolution in the particular circumstances.

I agree this ground is without any merit. The test the Ombudsman is to apply is not one that is conclusively determined by the contractual position. What the Ombudsman considers fair and reasonable in all the circumstances may legitimately depart from pure contractual rights as the case law shows (see paragraph 64 above); it may similarly have implications for other rights which the parties might otherwise have between themselves.

No public law error is therefore established by the submission that the Final Decision of the ombudsman permits Client N to avoid the consequences of her contract with him. Indeed, that is the very point. The Ombudsman decided it would be a fair and reasonable outcome for the position to be modified given the findings in relation to costs information set out in the Final Decision.

At the hearing before me, Mr Sufian argued that the Ombudsman had made a number of mistakes of fact when reaching the Final Decision. Mr Davidson, for the Ombudsman, took objection to this line of argument. He argued mistake or error of fact was not identified as a ground of challenge in the Statement of Facts and Grounds, and the individual criticisms were not particularised there or in the chronology that had been ordered by Foster J for the purpose of clarifying the claim. He submitted that the authority relied on by Mr Sufian in relation to this point (E v SSHD) was not highlighted by him until 1am on the morning of the substantive hearing.

The pleading of Mr Sufian’s case in this respect was in my view unsatisfactory, and all the more so because at the permission hearing Foster J observed that the case had not been properly understood and underscored the need for it to be set out clearly. However, in the Statement of Facts and Grounds, Mr Sufian did plead an averment that “[t]he Defendant made findings of facts which are not consistent with the material evidence” (see §29f). Whilst that does not in terms refer to mistakes or errors of fact, it does seem to me to raise the essential issue. What is not pleaded however, is the particularisation of the points to be taken. Nor did the particularisation appear in the chronology ordered by Foster J.

In these circumstances I very carefully considered whether Mr Sufian should be permitted to advance these arguments at all. Where possible, it is desirable to decide cases on their merits rather than on technical points, particularly where the core of the complaint does feature in the pleaded case. That is part of deciding cases justly. However, there are other factors to consider. It is important to ensure procedural rigour and for the rules and orders (including that of Foster J) to be complied with. Here, it seems to me that the ordering of a chronology (as opposed to an amended pleading) led to confusion that the nature of the challenges (not only the factual background) had to be properly particularised. Of central importance to my decision was consideration of whether the Ombudsman would be prejudiced. I carefully considered whether the Ombudsman could fairly deal with the points raised by Mr Sufian. In the event I was satisfied that she could and Mr Davidson addressed me on them both orally and in a written post-hearing note. In these circumstances I do permit Mr Sufian to rely on the particularisation of this complaint advanced at the hearing. Any residual prejudice concerning the manner and timing of these points being raised seemed to me capable of rectification when dealing with the issue of costs.

The points taken by Mr Sufian were as follows:

I can deal with points (i) to (iii) and (v) quite summarily. In my judgment they plainly were of no consequence or materiality to the Final Decision reached by the Ombudsman. In relation to point (i), it was not relevant to the Ombudsman’s reasoning that the relevant costs decision was taken on the papers rather than at a hearing; and in any event the decision on the first aspect of the complaint was determined in Mr Sufian’s favour. As for point (ii), it made no difference whether the document in question was technically an invoice. The Ombudsman was plainly entitled to rely on it as an itemised list of charges. As for point (iii), whilst the evidence showed that Mr Sufian had supplied a signed copy of the client care letter of 22 June 2018 to the Ombudsman, the reference to the letter being unsigned did not materially affect the Ombudsman's decision. Importantly, there was no finding by the Ombudsman that this client care letter had been backdated. Indeed, at §3.2 the Ombudsman stated she was unable to say when Client N likely received it. The adverse finding in respect of issue 3 was confined to the 5 February 2019 client care letter. Finally, in connection with point (v), whilst the client care letter of 11 June 2018 did provide for a fee (cf §2.13 of the Final Decision), when determining the complaint the Ombudsman included that fee in the list of fees Client N reasonably expected to pay. At that point of the decision, therefore, she appears to have accepted that the relevant fee information was given.

I turn then to point (iv). During the hearing, and after having taken time to take instructions and consider the point, Mr Davidson informed me that the evidence pack used by the Ombudsman was missing a page of the client care letter of 8 September 2018. That had led to the Ombudsman erroneously concluding that the £7,500 fee had not been notified to Client N when it had. As I have explained at paragraph 25 above, I accept that Mr Sufian had supplied a full copy of this letter on 14 April 2023.

Addressing the test in E v SSHD, Mr Davidson accepted that this amounted to a mistake of existing fact which was uncontentious and objectively verifiable and that Mr Sufian had not been responsible for the mistake. The remaining issue was whether the mistake was material.

In addition to the way the test of materiality was expressed in E v SSHD, in written submissions prepared after the hearing, Mr Davidson referred me to a number of other authorities. These included R (March) v Secretary of State for Health [2010] EWHC 765 (Admin), in which Holman J described an error as material “because a different decision might (I stress, might) have been made…” (see §53; and also §20(iii)). In R (Bradbury) v Brecon Beacons NPA [2025] EWCA Civ 489; [2025] 4 WLR 58, in the particular context of considering section 31(2A) of the Senior Courts Act 1981, the Court of Appeal described the exercise of engaging with a counterfactual as involving “the focus [being] on the impact of the error on the decision-making process that the decision-maker undertook” (see §74). Mr Davidson also made reference to the factual determinations in R (Mitchell) v SSHD [2008] EWHC 1370 (Admin) and R (Islam) v London Borough of Haringey [2022] EWHC 3933 (Admin).

Whilst this review of authority has been helpful, in my judgment the most useful guidance remains that in E v SSHD itself. As is clear from §66 of the judgment, the requirement will be satisfied where the mistake played a material, even if not necessarily decisive, part in the reasoning.

In this case I am satisfied that the erroneous statement that no fee was notified in the client care letter of 8 September 2018 was material to the Ombudsman’s conclusions on the second aspect of the complaint and in relation to the remedy imposed. My reasons are as follows:

Accordingly, I find this aspect of Mr Sufian’s challenge made out.

Mr Sufian’s remaining complaints are that the Ombudsman’s Final Decision was irrational or Wednesbury unreasonable in a number of respects. As I have set out above, the correct approach to these issues is that explained in R (Crawford).

Mr Sufian argues that the Ombudsman’s finding (within issue 3 of the complaint) that he asked Client N to sign a “backdated” client care letter dated 5 February 2019 was irrational.

The client care letter of 5 February 2019 was before the Ombudsman. On its face it stated that Mr Sufian “will” (viz in the future) carry out work; yet the work was said to commence on 10 November 2016. The Ombudsman noted the date of the letter and the scope of the work described at §3.3 of the Final Decision. She also recorded Client N’s position that the letter had been backdated (§3.1). She ultimately concluded that Client N was correct (§3.3) and that Mr Sufian had not acted in Client N’s best interests by asking her to backdate the letter. This allowed him to charge £500ph from 10 November 2016 to 5 February 2019 when that was not what was agreed. She found the letter did not reflect any agreement made prior to 5 February 2019 and therefore it was unreasonable for the barrister to have backdated it.

Mr Sufian’s position was that this was irrational because the letter was in fact a review of past work. In my judgment that submission has no merit. There is nothing on the face of the letter to suggest it forms part of a review. By contrast, there was ample evidence on the face of the letter itself, and particularly when combined with Client N’s stated position, to entitle the Ombudsman to reach the conclusion she did.

I therefore reject the suggestion that the Ombudsman’s conclusion was outside the range of reasonable responses open to her on the material she had gathered. The decision was for her to take, and the weight to attach to the competing explanations, in light of the terms of the letter, were for her.

Next, Mr Sufian argued that the determination that he had given “poor service” was irrational because he achieved successful outcomes for Client N and the Ombudsman found the quality of the legal services provided was not substandard. He argues there was a failure to specify how the service was poor or what test was applied to reach this conclusion.

I have little hesitation in dismissing this argument. As Mr Davidson submitted, and as is clear from the Final Decision, the poor service related to the costs information provided by Mr Sufian, not the legal services he provided. The Final Decision specifies the way in which “poor service” was provided. The relevant findings corresponded to the second, third and fourth issue raised for investigation. The Final Decision therefore did set out what amounted to the poor service and gave adequate reasons for doing so. I see nothing irrational about those conclusions.

Mr Sufian then argued that the Ombudsman’s Final Decision was inconsistent with Client N’s statements to the Court of Appeal confirming the reasonableness of the costs he had charged (see paragraphs 26 to 28 above). He submitted this demonstrated Client N had given informed consent for the fees charged. This was a point he had developed before Foster J at the renewed permission hearing and which appears in the transcript of that hearing particularly at pages 7-9.

I do not accept Mr Sufian’s argument. It is clear from the Final Decision that Client N’s letter to the Court of Appeal dated 8 April 2019 was considered by the Ombudsman: see §1.2 of the Final Decision. The Ombudsman stated that the letter indicated that Client N accepted the costs schedule and had agreed for any costs award to be paid directly to Mr Sufian. It cannot therefore be maintained that it was “ignored”. I agree with Mr Davidson that the weight that fell to be attached to different pieces of evidence before the Ombudsman (such as these communications) was for the Ombudsman to determine and that it is not for the Court to substitute its own view or to subject the reasons to a pedantic or exacting review.

In any event, there is in my judgment nothing inconsistent between the letter of 8 April 2019 (and the subsequent copy with the handwritten endorsement) and the findings of the Ombudsman. The communications to the Court of Appeal asserted, after the costs had been incurred, that the costs in the appeal proceedings were reasonable. The communications do not provide evidence of Client N being given adequate costs information prior to such costs being incurred.

It follows that there is nothing irrational about the Ombudsman’s conclusions in light of the communications with the Court of Appeal.

Finally, Mr Sufian argued the remedy of a 50% reduction in his total fees was illogical, irrational and disproportionate in response to a complaint about a single case.

Putting aside the error of fact that I have found substantiated, I am satisfied that Mr Sufian’s argument is without merit for the following reasons:

It follows that Mr Sufian’s irrationality challenge is not well-founded.

Conclusion

Accordingly, whilst the vast majority of Mr Sufian’s challenges to the Final Decision fail and fall to be dismissed, I consider the Ombudsman’s conclusions (i) in relation to the second issue on the complaint, and (ii) in relation to the remedy imposed were materially impacted by a clear mistake of fact. I shall quash those aspects of the Final Decision and direct that the Ombudsman reconsider those two matters.

Mr Sufian’s challenge to the Acceptance Decision fails and is dismissed.