Holgate: No irrationality in LeO decision
The Court of Appeal has reinstated a Legal Ombudsman (LeO) decision that a law firm failed to adequately assess a client’s capacity and should pay her £15,700 in compensation.
The court said deputy High Court judge David Pievsky KC had stepped “beyond the proper bounds of judicial review” in quashing the finding.
London family law firm Aina Khan Law (AKL) acted for ‘CXV’ in sensitive proceedings in 2020. The following year the client complained to LeO about poor service.
The ombudsman found that the firm had not adequately assessed CXV’s litigation capacity and its costs were excessive.
She set the compensation at £51,200, made up of a £35,500 refund of the costs paid – “as a remedy for the impact of the firm’s poor service relating to costs” – and a further fee reduction of £15,700, 20% of the net fees paid by CXV, over the capacity issue.
AKL sought a judicial review. While he upheld the refund, Judge Pievsky last year quashed the fee reduction on multiple bases, including that the ombudsman conflated indications of mental health conditions with those of a lack of capacity, and failed to take four other relevant considerations into account.
LeO was granted permission to appeal but AKL was refused permission to cross-appeal the decision on the refund.
Lord Justice Holgate, giving the unanimous decision of the Court of Appeal, found no irrationality “of any kind” in the ombudsman’s reasoning and decision.
“I must respectfully disagree with the judge. I consider that the ombudsman was entitled to reach the conclusions she did on the materials before her and that she gave legally adequate reasoning.”
Holgate LJ said that, in his conflation finding, Judge Pievsky failed to read “the relevant parts of the decision as a whole”.
“[The ombudsman] had said that she was considering mental capacity and also the broader context of vulnerability through mental health issues. This in turn was related to the potential need for family support and the adequacy of the service provided by AKL,” he said.
“The ombudsman’s decision contains no language conflating the two and no indication that she misunderstood the law relating to mental incapacity.”
The court went on to dismantle the rest of Judge Pievsky’s reasoning, which included that there was “no evidence” the ombudsman had addressed the four specific points.
“It is trite law that a decision-maker is not to be taken as having failed to take a relevant consideration into account merely because he did not mention it in his reasoned decision…
“In any event, a decision-maker does not fail to have regard to a relevant consideration unless he was obliged to take it into account… There was no legal requirement for the four points to be addressed by additional reasoning in the ombudsman’s decision.”
The judge’s approach was “selective and illustrates the risks of the court stepping beyond the proper bounds of judicial review and becoming drawn into factual issues and merits which were for the ombudsman”.
Holgate LJ stressed too that the ombudsman was not exercising a judicial role in a court.
“Her duty to give reasons did not require her to meet the standards required of a judgment… Instead, she was giving reasons for her decision in accordance with an inquisitorial, non-adversarial scheme for the resolution of complaints about legal services ‘quickly and with minimum formality by an independent person’.
“The judge’s approach… would impose an excessive and unnecessary burden on ombudsmen to give reasons, which would be incompatible with the terms and purposes of the statutory scheme.”
As a result, Holgate LJ set aside the order quashing that part of LeO’s decision and also the limited costs order Judge Pievsky made in favour of AKL.
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