Partial success for immigration barrister in challenge to Legal Ombudsman decision

A barrister has succeeded in arguing that the Ombudsman made a mistake of fact in its decision on a former client’s complaint, but the majority of his grounds for judicial review were rejected by the High Court. The Ombudsman will now need to remake some elements of its decision, to include consideration of the information it previously omitted. The case is R (Sufian) v Legal Ombudsman [2026] EWHC 28 (Admin).

Background

The claimant is a barrister who specialises in areas including immigration and who does direct access work. Between 2016 and 2020 he carried out work for a client “N” including two oral permission hearings, preparation of an appeal to the Court of Appeal (conceded with costs by the Home Secretary), an application for indefinite leave to remain and the subsequent unsuccessful appeal to the First-tier Tribunal, and a judicial review challenge to removal directions (also settled with costs by the Home Secretary).

On 20 and 31 July 2020, N complained to the claimant’s chambers claiming that he had “financially abused” her and was no longer answering her calls. The complaint was not upheld, with the response setting out the work that had been done and saying that N still owed outstanding fees. N had complained that the costs that had been awarded in the Court of Appeal matter had been paid directly to the claimant, but the response letter said that N had authorised this and it had been used as part settlement of the fees owed.

Legal Ombudsman

On 15 November 2020 N complained to the Legal Ombudsman. On 9 December 2021 the claimant was told that a complaint had been received. On 3 February 2023 the complaint was allocated to an investigator. She emailed the claimant explaining that she would be speaking to N to get a full understanding of the complaint and after this she would contact him.

The claimant replied the same day, saying that he was planning to issue proceedings in the County Court for the outstanding fees owed to him by N. He suggested that the matter was not within the Ombudsman’s jurisdiction and that it should be left to the County Court to decide. The investigator also replied the same day and asked for explanation of his assertion on jurisdiction but no response was received.

On 13 February 2023, after speaking to N, the investigator emailed the claimant a letter detailing the complaints N had asked to be investigated. These were:

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).

A response was requested by 28 February 2023 and was provided by the claimant ahead of this deadline. The investigator then asked for further information regarding the fees received from N and from the Home Office as well as copies of the communications with N regarding disbursements. The claimant was also asked to clarify the amount that N still owed, including how it had been calculated. The claimant sent further information and evidence.

On 12 May 2023 the investigator made her decision, concluding as follows:

(1) Client N had signed an agreement authorising the costs awarded by the Court of Appeal to be paid directly to her barrister. It had been reasonable to do so because the sum awarded was to cover his costs. Mr Sufian’s service had been reasonable in this respect.

(2) After reviewing the costs information provided, it had been difficult to tally up the sums in the client care letters and the various schedules provided. As the retainer progressed, things had become less clear. It was unsurprising that Client N did not understand what she was being charged for and when, and therefore the service had been unreasonable.

(3) Whilst Client N had maintained a number of client care letters had been backdated or ‘made up’, it was only possible to reach a conclusion in respect of one: the letter of 5 February 2019. That had covered work already completed and there was no reason in the client’s benefit to create the letter after the event. The service was considered unreasonable in this respect.

(4) Finally, Mr Sufian’s service had not been reasonable in that it fell to be inferred from the information available that he had not informed Client N about the Court of Appeal’s decision to award her costs of £16,348.50 on/around 4 March 2020 when the Court had made that decision.

It was proposed that the claimant refund £4,911.50 to N and waive the outstanding costs she owed him. N accepted the decision but the claimant did not and so the matter was passed to the Ombudsman for a final decision.

On 2 August 2023 the Ombudsman upheld the same grounds of complaint as the investigator and directed the same remedy. The Ombudsman said:

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.

Again, N accepted the decision and the claimant did not. A pre action letter was sent on 24 October 2023 and judicial review proceedings commenced on 31 October 2023.

The judicial review

Permission was refused on the papers on 16 April 2024 but then granted following an oral permission hearing on 18 July 2024, with the judge making the following observation:

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.

Despite this, the High Court commented that some of the points the claimant wished to advance “remained opaque when the case arrived at final hearing before me”. The claimant argued several grounds, including that there had been a breach of his article 6 rights and that the decisions were irrational and procedurally improper.

The court said that it would have been good practice for the Ombudsman to disclose a copy of N’s original complaint to the claimant, but that the failure to do so did not breach the minimum standards of fairness given he was sent the details of the allegations.

The claimant also tried to argue that N’s complaint had been time barred, but this was rejected by the court on the basis that he had not warned her of the six month time limit and this failure meant the normal time limit for complaining to the Ombudsman did not apply.

The claimant submitted that the Ombudsman had exceeded her jurisdiction by investigating matters that N had not included in her complaint. He also said that N’s complaint to the claimant covered just one of the cases in which he had acted for her. The court found that the complaint form completed by N for the Ombudsman was broad enough and also that the claimant’s response to N’s complaint made clear that he understood her to be complaining about more than one case.

The claimant also complained that the Ombudsman’s decision allowed N to “avoid the consequences of her contract with him”. The Ombudsman said that this ground was misconceived and that 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”. The court agreed.

Other grounds including there irrationality, unreasonableness and unsubstantiated finding of poor service were also dismissed. The irrationality point involved a client care letter dated 5 February 2019 which said that it was to cover work that the claimant “will” carry out, starting from 10 November 2016. N had said this letter had been backdated and the Ombudsman agreed. The claimant said “that this was irrational because the letter was in fact a review of past work”. The court rejected this.

The claimant did succeed in arguing that the Ombudsman had made a clear mistake of fact that was material to the decision. The Ombudsman’s evidence pack that they used in considering the matter was missing a page of a client care letter dated 8 September 2018.

The court accepted that the claimant had provided this letter in full to the Ombudsman and found that the omission led to an erroneous conclusion that a £7,500 fee had not been notified to the claimant when it had. The court concluded that this error was material both to the Ombudsman’s findings on the second ground of the complaint as well as to the amount of the remedy awarded to N.

The Ombudsman was ordered to reconsider those two elements of its decision.

Conclusion

I think the thing that jumped out at me the most here is those timescales for the investigation at the Legal Ombudsman. They are presumably significantly under-resourced, but these things taking years to resolve is very bad news for both client and lawyer.