Appeal No: IMS/204/019/RCD
IN THE IMMIGRATION SERVICES TRIBUNAL
TOTAL OF LEGAL SERVICES
APPELLANT
-v-
THE IMMIGRATION SERVICES COMMISSIONER
RESPONDENT
This is an appeal by TLS against a Determination by the Respondent (OISC) dated 2 September 2004. The Determination related to breaches of a number of the Codes of the Commissioner’s Codes of Standards. The investigation and Determination arose from complaints by Ms Mavis Muchereti (the complainant) in relation to services provided by TLS to her in respect of her application for political asylum in the United Kingdom.
We will deal with the specific Determinations in our Conclusions. They arise however from the history of the relationship between the complainant and TLS to which we now turn.
THE BACKGROUND
In her statement in respect of the appeal the complainant stated that she had first contacted TLS on 8 August 2002. She had been recommended by friends to contact Mr Tony Upwa-Otto (Mr Otto) who worked for TLS. She explained to him that she wished to apply for asylum and an appointment was made for 10 August 2002 at the Battersea branch of the firm. She attended that appointment and there met Mr Otto. We will return to certain matters of substance relating to the complaint and appeal arising from this meeting shortly, but at this stage simply recite the next steps that were taken in order to identify those members of TLS who came to deal with the complainant’s case. In a letter dated 10 August addressed to the complainant and signed by Mr Otto, she was advised that Mr Francis Enahoro (Mr Enahoro) would be responsible for handling her case. In the event it would appear that the instructions taken by Mr Otto were in fact passed to Mr Lawal Olayemi Olateju (Mr Olateju). Mr Olateju and Mr Enahoro are partners in TLS. Mr Otto describes himself in a witness statement dated 30 October 2004 as the branch manager for TLS in their branch office at Battersea Park Road, London.
THE WITNESSES AT THE HEARING
At the appeal hearing the court heard evidence on behalf of TLS from Mr Olateju, but not from either Mr Otto or Mr Enahoro.
It would appear that the appellants had decided not to call Mr Enahoro in circumstances where he would have been available.
We note that Mr Enahoro never met the complainant nor had any direct communication with her whatsoever.
We note that Mr Enahoro is alleged to have carried out work on the file of the complainant, including drafting the letter to the Immigration Authorities.
Given that time was charged in the account eventually furnished to the complainant for the work carried out by this gentleman and that he was at the meeting with the investigating officer for the OISC and contributed to the representations made on behalf of the firm during that investigation, we find it strange that he did not give evidence. We will return to the position regarding the charging of fees for his time at a later point in this judgment.
A number of issues surrounding the interview with OISC and subsequent steps arose at the hearing, and the attendance of this gentleman would certainly have assisted.
The Tribunal heard from Mr Olateju. He indicated that he had supervised the file in the office, although no documentation confirming either his time or the way in which he spent that time was produced either to the Respondent or to the Tribunal. Reasons were given for this to which we will return. We will comment on Mr Olateju’s evidence at each stage of the judgment. However we note again that Mr Olateju never met or spoke directly to the complainant.
We did not hear from Mr Otto. We have referred to the witness statement dated 30 October 2004 which was with the appeal bundle. We were advised by letter from Mr Otto, produced shortly before the hearing started, that he was unable to attend as he felt that it would potentially put him into conflict with the OISC - and that he was therefore concerned about his personal business. He had left the employment of TLS and had either set up his own company or was engaged and registered with another company in the area of immigration advice. It was agreed that Mr Otto’s statement could be taken by the Tribunal and given what weight it considered proper.
We would record however that we regard his non-attendance as totally unsatisfactory and that we are highly dubious as to the reason given.
This gentleman is now registered for the purpose of giving advice. There is no reason why he should not be able to attend the Tribunal arising from any perceived concern as to his own dealings with the Respondent.
This matter was listed originally for hearing in early December 2004 and this gentleman appears to have been more than willing to set out the position regarding his dealings with this complainant in a statement prepared and signed by him a matter of weeks before that hearing. His position then with the OISC could have been no worse than it is at the present time, given that he has been registered with them for some time.
His absence is an important lacuna in this case. It became clear that TLS seek to blame him for the inactivity and the failure to accord this complainant the sort of service which we believe she was entitled to receive and most certainly did not receive. His evidence would be relevant to many of the issues before the Tribunal. He was the person who the complainant saw on 10 August 2002, and would therefore have been an important witness as to representations made at that time in relation to many aspects of the application, but in particular one to which a complaint has been made and upheld by the Tribunal in relation to the advising on the level of fees, and in particular a fee of £100 sought for an interview with Immigration Services which was stated by letter to have been arranged and which quite patently was not arranged.
Another important aspect of the evidence was an allegation by TLS that in November 2002 the complainant stated that she did not wish to proceed at that time, although this changed in the evidence of Mr Olateju to a call requesting a “suspension”. This was denied by the complainant. Therefore we again did not have the opportunity of directly hearing from the person who made the allegation against her.
In February 2003 the complainant received a letter advising that the Battersea Office would be shutting. We will deal with the terms of that letter in due course, but at this point we note that Mr Otto remained in these premises for some time after the date of that letter, that TLS continued to occupy the premises at that time and would have had full knowledge of Mr Otto’s attendance in the offices. Again the allegations and representations on the part of TLS surrounding this particular period and any representations made to the complainant were not the subject of evidence or amenable to the cross-examination of Mr Otto.
We regard the reason put forward by Mr Otto as without foundation.
The complainant gave evidence. We record at this point that we regarded her as a reliable witness and a witness of truth. We accept in its entirety the evidence that she gave in respect of all central and fundamental issues in this matter. Where her evidence conflicts with that of the statement of Mr Otto, we accept her evidence and reject that of Mr Otto.
THE EVIDENCE
This was a lady who was extremely vulnerable. She had come to this country lacking in any experience and understanding of the ways of this country and her legal standing within this country. Whilst Mr Otto may well have been the person whose name was given by her friends, at all times it is quite clear that she was the client of TLS. The correspondence written to her was on TLS heading: her payments were made to TLS and her attendances were at the offices of TLS. The responsibility for providing services to her lay with TLS and from the start it was made clear that the person in charge of her file was a partner of the company – see the letter of 10 August 2002.
Attempts were made during the course of the hearing to suggest that Mr Otto acted as some sort of independent advisor, if not at the start then at some later stage. We reject that argument in its entirety. The complainant was entitled throughout to proceed on the basis of this firm acting for her. The picture painted by Mr Olateju as to events in and around the closing of the Battersea Office in February 2003 was at best confusing to members of the Tribunal. Indeed some of the representations made to the investigating officer as to where papers were kept, and those made to the Tribunal were contradictory.
While there clearly were problems between the partners of TLS and Mr Otto the complainant was in no way advised of such problems, nor was she advised of any parting of the way between Mr Otto and TLS. Any suggestion that she should have known of any change in that relationship would frankly be absurd.
In his evidence Mr Olateju stated that TLS made a decision in February 2003 that if no response was heard to the February letter regarding the taking of business back to the Lewisham Office, that would result in them assuming that the complainant did not wish them to act. We regard such a decision to fall well short of the service she deserved and reflects poorly on the appellant.
The February letter was vague and ambiguous. Her response in contacting the Battersea Office was natural and there she found Mr Otto. We are totally satisfied that at all stages this lady had every reason to believe that after February 2003 she remained a client of the appellant company.
No attempt was made by the partners of TLS to contact this lady after the six-week period referred to in the letter. That could very easily have been done by writing to her or telephoning her. Her address and telephone numbers at that time had not changed from the date of her instructions, and the statements in paragraph 8 of Mr Otto’s statement are clearly wrong and reflect some attempt to excuse the inexcusable.
No attempt was made to repay money which would have been due to this lady until very much later, and then in our view only under pressure from the investigation by the Respondent. There is nothing on the file whatsoever to indicate that any attempt would ever have been made to repay this lady – indeed the files apparently had been put into safe keeping.
The Tribunal was faced with a paucity of documentation which could have evidenced the steps taken by the appellant during the time that they were giving service to this particular lady. The reason given for this at the Tribunal was that these documents were missing. This had not been mentioned to the investigating officer, nor had it been raised at any stage in the witness statements prepared for the purposes of this appeal, including that of Mr Olateju dated 3 November 2004. Part of the blame for this again was placed at the door of Mr Otto. We were advised that he had on occasions not complied with directions allegedly given to him by the partners as to the preparation of forms and the taking of instructions in the proper way and on the necessary forms. What we do know is that in this particular case instructions were taken by Mr Otto and, on the argument of the appellant, would have been taken in the form of which they disapproved. These however were passed to Mr Olateju. There is no evidence that at that point any step was taken by him, or any other partner, to correct that position so that the paperwork would be in order, and there is certainly no evidence of any supervision or control of the files, which would have allowed for these papers to be available. Instead we are advised that perhaps they had fallen out of the files at some point.
The Tribunal would be entitled to be highly sceptical of such an explanation. This is compounded by the evidence given by the investigating officer, Ms Cooper, and by Mr Olateju, regarding papers sought by OISC at the meeting. We were first advised that Mr Olateju telephoned the Battersea office to get copies of the documents faxed to their Lewisham offices, but at a later stage he stated the documents were in fact in that office. If they were in the office they could well have been produced.
We have been inevitably led to the conclusion that an attempt has been made to obfuscate and hide the position that there was no proper documentation, no proper system of recording or control of information as to the steps being taken.
We are satisfied, having accepted the evidence of the complainant, that she telephoned on many occasions and that her calls were not returned. There has been a finding in this matter that she was treated with disrespect. It was argued that this meant that she had been treated rudely. She herself accepted that was not the case – indeed, apart from one or two telephone calls from Mr Otto, her main contact appeared to have been with junior staff who we have no doubt acted in a courteous manner. However disrespect has many meanings including being discourteous and showing a lack of regard.
This was a lady in a powerless and vulnerable position. The very reason she sought the services of TLS demonstrated this more than any words. She needed guidance in every respect of her application and the mechanics of the process. It was an inherent and fundamental duty on TLS in all of these circumstances to keep her informed, to return her calls, and to seek to alleviate her fears. She was ill served by TLS in every single respect of that general obligation. Given the professional relationship between her and TLS, we regard her as having been dealt with discourteously and with a total lack of respect.
Against this background we turn briefly to the evidence of Ms Cooper and her colleague Ms Jolly who attended the meeting as note taker in respect of this investigation. We accept their evidence in full, as to the way in which the meeting was conducted, the manner in which it was conducted and the period of time over which it was conducted. Attempts to minimise the degree of their investigation are rejected, as is an attempt to say that an indication was given by Ms Cooper at the end of that interview that if the complainant got back some of her money (that is after deduction of reasonable fees), that would be an end of the matter. A reading of the file and the correspondence following that meeting shows that if Mr Olateju and Mr Enahoro gained such an impression, it was a sadly mistaken one. In the event we find it hard to see any ground as to why they should ever have thought that it would be an end to the matter.
CONCLUSIONS
We can now deal briefly with the individual Determinations in this matter.
Breach of Code 9(c) – the obligation to explain in writing to a client with regard to any additional costs likely to be incurred or to which the client may become liable. We uphold this determination. This lady was given a figure of £500 as the estimated fees for the services of TLS. However in evidence we were advised that this figure did not cover outlays or expenses. An indication as to the level of what those might have been would have been essential. The attempt to charge £100 for an interview (which turned out not to be an interview) was totally inappropriate and, given that it would appear on the evidence of Mr Olateju to be a natural step in the process, should have been pointed out to the complainant at the outset in writing. In the event it was not paid but that in no way undermines the breach of this obligation.
Breach of Code 10 – failure to keep the complainant regularly informed at least every six months on the progress of the case and in particular of any significant event. This lady became a client at the beginning of August 2002. She has never been informed of the progress of her case except perhaps in the early days to advise her that there was no progress. The Tribunal has rejected the argument that she was not client after February 2003, and in those circumstances the appellants are quite clearly in breach of this Code.
Code 29 – The advisor must keep clear, orderly and accurate records of contacts and dealings. Little documentation was produced. For the reasons we have given we are satisfied that proper records were not kept.
Code 50(a) – The advisor must at all times show due respect to the client, courts and the legal system. For the reasons that we have stated we believe that the complainant was shown little respect as to her rights or her concerns. We uphold this determination.
Code 16 – The advisor must not charge for work that has not been undertaken. We have commented on the request for the payment of £100 to attend at an interview (non interview). Whilst the money was not paid a charge was asked for and this is a breach of the Code. We uphold this determination.
Finally we turn to the question of the costs in this matter.
Whilst the correspondence between the parties referred to the payment by the complainant of £500 (£250 on 10 August 2002 and £250 on 21 September 2002) she in fact paid £550 as there appears to have been a consultation fee of £50 also paid at the first interview on 10 August. We were given no satisfactory explanation as to why this should be seen as a one off fee and should not be considered to be part and parcel of the payment made by this complainant to TLS for their services. We therefore intend to proceed on that basis.
We have already referred to the question of the repayment that was eventually made, but this was based on a deduction from the figure of £500 calculated on a reconstructed bill, which Mr Olateju sought to justify during the hearing. No time sheets were available and no records were available to identify the time spent. It is of some concern to note his explanation that time charged included time advising Mr Otto as to how to conduct the interview and what questions to ask. No client should ever be asked to pay for such time. We note of course that no charge appears to be made at that stage for Mr Otto, but even if time were allowed in respect of his attendance on the complainant, it would have been at a substantially lower rate than that charged. Given that the time of three and a half hours in the bill is attributed not to the work of Mr Otto but of the other two partners, we must record that at most it should cover only the time taken in drafting the original letter.
Mr Olateju argued that he had spent time from time to time looking in the Internet for development of events in Zimbabwe. We find nothing to record that time, and we found nothing which informs any step taken by TLS based on any knowledge acquired. With the effective abandonment of this client, any such knowledge gained can only have accrued to the benefit of Mr Olateju, and certainly not to the benefit of the complainant - who should not have to pay for it.
The bill also included three telephone calls at £15.00 which, it became clear, referred to telephone calls with junior members of staff. We see no reason or justification for the payment of any such amount particularly as at that time little if any information was given, or could be given by these particular ladies. The complainant had been pursuing the TLS for information. To suggest that she should then have to pay for what she was told by junior staff is inappropriate.
The final charge was for Mr Otto, for an interview on 21 September prior to the so-called interview with the Immigration Services. No record was kept of this. Given the context in which such consultation would have taken place, namely to go along and see if an interview could be brought forward (on the evidence of Mr Olateju) we see no reason why this lady should pay for an interview for half an hour in respect of something that could have been dealt with on the telephone. In any case the hourly charge for Mr Otto was that of a partner, which would be inappropriate.
We therefore record at this stage that the Tribunal simply do not accept the bill which has been produced on behalf of TLS as an accurate record of either the time spent, who spent that time, and whether that time was properly spent on the provision of proper services to the complainant. To the extent that the original letter was written and instructions taken for it we accept that a modest amount could be charged but we would put that at no more than £150. However that it not an end to the matter.
This lady paid the money for a particular objective; an objective acknowledged by TLS in their letter of instruction dated 10 August. In the first paragraph it states:
“Thank you for instructing us to act on your behalf in your immigration matter. We shall do out best to ensure that everything proceeds as smoothly as possible and to obtain a successful outcome to your case.”
In our opinion the work which this lady should pay for is work directed in the context of an entire contract to see this through to an end, unless some supervening act took place such as the withdrawal of instructions or some act whereby this lady no longer required their services. It is clear to us that the only step taken was to write a letter. No further steps were taken to follow up that letter, let alone to provide any further service for this lady. Effectively the file was put to one side and no active steps were taken to pursue the matter, even to find out what was happening. This lady was eventually left in circumstances where she had to go to another firm of solicitors who effectively had to start from scratch. We see no reason why she should pay for the opening letter which should not be seen as a piece of work in its own right, but as a first step in a series of steps that they were obliged to take and for which payment was dependent on carrying out all of those steps.
Therefore we have concluded that TLS has not satisfied us that they are entitled to payment of any fees in this particular matter. There has been a total failure of consideration on their part to provide the services for which payment was made, and by their failure they should repay the full amount of £550. To the extent that that has not been repaid, the balance sum should now be repaid no later than 21 days from the date of this ruling.
We uphold the Determination made by the Respondent in respect of all of the breaches contained in the Notice of Determination, and confirm that these breaches be recorded and considered when TLS next apply for their registration to be continued.