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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Haley, R (on the application of) v Solicitors' Disciplinary Tribunal & Ors [2008] EWHC 1576 (Admin) (20 May 2008) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2008/1576.html Cite as: [2008] EWHC 1576 (Admin)

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

		Royal Courts of Justice Strand London WC2
		20th May 2008

1. SIR GEORGE NEWMAN: On 6th February 2007, having considered this case on the papers, I granted the claimant, a solicitor, permission to apply for judicial review. I granted permission because, upon consideration of the terms of a decision dated 9th July 2003, I was persuaded that there was an arguable case and a case that merited consideration because of an apparent lack of clarity surrounding the decision, made by the Legal Services Ombudsman under the Courts and Legal Services Act 1990.
2. The short and essential chronology of events is as follows. The claimant was admitted a solicitor in August 1973. In 2000 Mr Spiteri (the complainant) had an interest in buying a property belonging to a Mrs X. The claimant referred a proposed sale of the property to a Mr Y to the Office of the Public Trustee. The Public Trustee replied to the claimant's referral and it led to an exchange of the contracts for sale of Mrs X's property.
3. Mr Spiteri lodged a complaint to the Law Society, alleging that the claimant had acted improperly in her acceptance of the instructions and the use of her power of attorney in connection with the transaction.
4. The matter was considered, first, on 26th April 2002 by Mr Lymbury, a Law Society adjudicator, who dismissed the complaint. He gave reasons and comments, and concluded in his decision that no further action should be taken. He indicated to Mr Spiteri that he had a right to apply for a review of the decision not to find any professional misconduct in the case, which right had to be exercised within 14 days of the date of the notification of the decision.
5. Mr Spiteri exercised his right to apply for a review and the matter was considered by the Adjudication Panel of the Law Society. A decision was made on 25th October 2002. The Adjudication Panel reached a different conclusion. It concluded that the claimant had acted in breach of the rules and principles laid down to prevent solicitors acting where a conflict of interest existed. The review panel resolved to reprimand the claimant severely for her conduct.
6. The Adjudication Panel observed that:

"... the complainant may ask the Legal Services Ombudsman to review the case. It is open to the Ombudsman to recommend that the matter, including this decision, be reconsidered."

7. The Legal Services Ombudsman was engaged and the complaints of the claimant begin with the events that followed upon that decision. In a letter dated 9th July 2003, addressed to Mr Spiteri, the Ombudsman stated as follows:

"I recommend, therefore, in accordance with section 23(2)(a) of the Courts and Legal Services Act 1990 that the OSS reconsider their decision to close their file in order to provide you with an explanation as to why they chose not to refer Mrs Haley's conduct, together with the criticism from the Master of the Court of Protection, to the SDT. I would remind you, however, of my earlier comment, namely that even if the SDT became involved, they are unable to award compensation for a complainant, whatever their findings."

8. The issue to be decided as a result of the terms of that decision concerns the ambit of the powers of the Legal Services Ombudsman when acting under sections 21 to 26 of the 1990 Act. The claimant, for reasons which I understand, feels aggrieved by this course of events. She has been part of a process, commenced by a complaint to her professional regulating body, namely the Law Society, in respect of her conduct which received consideration, at the first stage, in her favour. At the second stage although not entirely in her favour, she received a severe reprimand. The third stage resulted in what she would no doubt have seen as a deviation from what had occurred in the past, although not a substantial deviation, because, given that there had been misconduct, she was prepared to accept the severe reprimand. Finally, in her view, all that was being sought by the Ombudsman in discharge of her responsibilities and statutory duty was an explanation as to why another course, namely reference to the Solicitors' Disciplinary Tribunal, had not been taken. If that was done the complainant would understand fully why the Adjudication Panel had not taken the course which was open to it and her position would not change.
9. These events are plainly capable of giving rise to a sense of grievance but they have to be correctly understood. The court is concerned, where the conduct of a professional person concerning the discharge of their professional responsibilities is in issue, to be alert to issues of fairness, propriety and due legality. However, the real issue, concerns what action was open to the Legal Services Ombudsman. Importantly, whether the Legal Services Ombudsman could, by the terms of a recommendation limit the nature of a review which in any instant case was being recommended. The matter is plainly of some importance generally, not only to the Law Society but to the Legal Services Ombudsman. It is obviously important that solicitors who are subject to these processes should understand clearly what is taking place and what the processes involve. It is obviously too in the interests of everybody involved that where decisions are reached, they are expressed in terms which, so far as possible, do not give rise to a misunderstanding.
10. The nature of the misunderstanding, as I am content to take it to be, is that in the course of the decision the Ombudsman observed as follows:

"I turn now to the substantive decisions made by the OSS. I assume, from your letter to me, that you are in agreement with the findings of the Adjudication Panel but believe the penalty imposed to be too lenient. For the avoidance of doubt, I should make it clear that I take the view that it was reasonable for the Adjudication Panel to conclude that Mrs Haley had acted in breach of Principle 15.04 and had also breached Practice Rule 1 and Principle 17.04.

I should make it clear that any finding by the OSS of misconduct on the part of a solicitor will not result in compensation for the complainant but in a disciplinary finding against the solicitor in question. The Adjudication Panel imposed the most severe penalty they had available to them, which was that Mrs Haley received a severe reprimand. Whilst you clearly disagree that this penalty was appropriate, you should bear in mind that this is a significant finding, and would be viewed as such by any solicitor. It will remain on Mrs Haley's record, which would be available to (and considered by) any panel considering any further complaint about her behaviour.

That said, the Adjudication Panel is able to refer matters of misconduct to the Solicitors Disciplinary Tribunal (SDT) if they consider the matter to be sufficiently serious to warrant such a course of action. I am concerned that, given the circumstances, they did not provide you with an explanation as to why they did not consider this course of action appropriate in the circumstances. [Mrs X] was an elderly and vulnerable client and was entitled to the highest level of professionalism her solicitor could provide. Whilst neither I, nor the OSS, expect a solicitor to offer a perfect service, it is clear that the level of service Mrs Haley provided for her client gave cause for serious concern and attracted criticism from a Master of the Court of Protection. The Adjudication Panel may well have considered referral to the SDT, but I am concerned that they failed to explain to you why this option was deemed not to be appropriate."

11. There then followed the passage to which I have already referred, namely the terms of the recommendation, which I emphasise included this in the terms of the letter:

"I would remind you, however, of my earlier comment, namely that even if the SDT became involved, they are unable to award compensation for a complainant, whatever their findings."

12. The only other part of the letter to which I think I ought to make reference is on page 2, under the heading "Assessment", where the Ombudsman stated:

"It might assist if I explain at the outset that my primary role is to oversee the manner in which the various professional bodies deal with complaints about lawyers, with a view to ensuring that they follow proper procedures and that they reach decisions that fall within the bounds of reasonableness. It is only in exceptional circumstances that I consider it appropriate to investigate the original complaint about the lawyer. Such circumstances are not present in your case and I have therefore confined my review of the matter to a consideration of the OSS's handling of the complaint."

13. With that as the essential factual framework giving rise to this case, it is necessary to refer to the statutory scheme which involves the Ombudsman.
14. Section 21 of the 1990 Act provides for the appointment of a person for the purpose of conducting investigations, namely the Ombudsman. The Ombudsman's functions are in section 22, subsection (1) being to the following effect:

"Subject to the provisions of this Act, the Legal Services Ombudsman may investigate any allegation which is properly made to him and which relates to the manner in which a complaint made to a professional body with respect to —

(a) a person who is or was an authorised advocate, authorised litigator, licensed conveyancer, registered foreign lawyer, recognised body or duly certificated notary public and a member of that professional body; or

(b) any employee of such a person,

has been dealt with by that professional body.

(2) If the Ombudsman investigates an allegation he may investigate the matter to which the complaint relates."

I will not refer to the other subsections. They have no particular bearing on the arguments in this case.

15. Section 23 is obviously critical. Section 23(1) provides:

"(1) Where the Legal Services Ombudsman has completed an investigation under this Act he shall send a written report of his conclusions to —

(a) the person making the allegation;

(b) the person with respect to whom the complaint was made;

(c) any other person ...

(d) the professional body concerned.

(2) In reporting his conclusions, the Ombudsman may recommend —

(a) that the complaint be reconsidered by the professional body concerned;

(b) that the professional body concerned or any other relevant disciplinary body consider exercising its powers in relation to —

[then various persons are stipulated];

(c) that —

(i) the person with respect to whom the complaint was made;

(b) any person who, at the material time, was connected with him,

pay compensation ...

(d) that the professional body concerned pay compensation of an amount specified by the Ombudsman ...

(e) that the person or professional body to which a recommendation under paragraph (c) or (d) applies make a separate payment to the person ..."

16. Subsection (2A) was not in the original Act but was included in the Act by amendment in 1999, and section (2A) reads:

"If after completing any investigation under this Act the Ombudsman considers that, rather than recommending the taking of any action by any person or professional body under paragraph (c), (d) or (e) of subsection (2), he should make an order requiring the taking of that action ..."

17. The materiality of that is not directly in point, but the full argument of Mr Falkowski has involved drawing a distinction between recommendations and directions or making orders.
18. It is right, as Mr Marriott for the Law Society pointed out, that the power to make an order added by way of amendment relates to what could be broadly described as the compensation provisions, and the position in relation to recommendations remains, as it was in the Act originally, under subsections (8) and (9), where the Ombudsman has some powers of publicising and making it plain that there has been a failure to comply.
19. I accept, however, that so far as an issue such as this is concerned, namely the process whereby complaints of professional misconduct are concerned, that it would be inconceivable that the Law Society, having received a recommendation under the provisions of this Act to take a certain course of action, would do anything other than follow the recommendation of the Ombudsman. It therefore does not surprise me that the recommendations are not ones which are required by the statute to be in form or even available to be made by way of an order or direction. They are ones which plainly are material if what you are seeking to do is to enforce a direction to pay compensation.
20. So the issue, going back to what I have already described as the critical provision, is, as it was put in the detailed grounds for contesting the claim put in by the defendant, did the Legal Services Ombudsman make a recommendation in accordance with section 23(2A) of the Courts and Legal Services Act 1990?
21. The answer provided by all parties here, save of course Mr Falkowski on behalf of the claimant, is in unison, "Yes". The Legal Services Ombudsman did make such a recommendation. Indeed, Mr Falkowski submits that there was a recommendation, but his argument stands or falls upon whether he is right in submitting that it was within the powers of the Legal Services Ombudsman to make a recommendation, in accordance with section 23(2A) that a complaint be reconsidered by the professional body concerned, in terms other than terms which follow the Act itself and the terms of the Act. It is notable that the Act does not confer an express power upon the Ombudsman to refer some particular aspect of the matter under complaint. It confers no express power upon the Ombudsman to limit the ambit of the future review or reconsideration which the Act envisages will fall to the regulatory body, namely the Law Society. The essence of the case for all parties but for the claimant is that the Legal Services Ombudsman made a perfectly lawful recommendation and that, properly interpreted, it did not do anything or suggest anything which was outwith the powers of the Ombudsman to recommend.
22. The cause of the difficulty, however, arises because, in addition to stating that there would be a recommendation within the provision of the Act, the Ombudsman went on to invite that a reason be given for the decision to close the file:

"... in order to provide you with an explanation as to why they chose not to refer Mrs Haley's conduct, together with the criticism from the Master of the Court of Protection, to the SDT."

23. So it is that Mr Falkowski submits that it was perfectly proper for the Ombudsman to take the view that there was no cause for reconsideration of any other aspect of the decision of the Adjudication Panel, other than that Mr Spiteri had been denied a satisfactory explanation as to why a more significant decision had not been reached. He can pray in aid that to a certain extent the Ombudsman had emphasised her role in overseeing the "manner" in which the various professional bodies deal with complaints and that it was only in exceptional circumstances that it was considered appropriate to investigate the original complaint. So the argument for the claimant runs, "Here is the Ombudsman making it plain that the substance of the matter had not caused the Ombudsman concern. It did not give rise to any need for reconsideration. It was the manner, namely when particularised the failure to explain why the Panel had come to the conclusion to which it came."
24. Against that, it has to be said, in the passage or short sentence which is also part of the letter (see paragraph 11 above), it would appear it must have been in the mind of the Ombudsman that one result of making the recommendation could be that the Solicitors' Disciplinary Tribunal might become involved.
25. I am not impressed by attempts to overcome this plain inference by reference to grammar. It cannot have been a reference to that which had not occurred in the past. It seems to me it was plain it must have been a reference to what could take place in the future. I am bound to say, that the grammar does not assist the position and it could have been better expressed. But that could be said of many things said by many people who make public statements.
26. However, it does seem to me that if it was necessary to look upon this as a public law decision which was under review in this court as a reasons challenge, it would appear, on balance, that although it was unhappily phrased for the purposes of the legal analysis to which it has been subjected, it was nevertheless sufficiently plain that what the Ombudsman did have in mind was that the matter which had exercised her particularly was that the Adjudication Panel may have considered referral to the Solicitors' Disciplinary Tribunal and that the matter ought to be reconsidered completely to determine whether or not reconsideration should lead to a different result.
27. But that seems to me to be but one way of resolving or going some way to resolve the difficulties to which this letter has given rise. In my judgment, whatever interpretation one gives to it, I am wholly persuaded that the position so far as the powers of the Ombudsman are concerned, as expressed in sections 21 to 26 of the 1990 Act (as amended), do not empower the Ombudsman to make a form of recommendation under section 23(2A) which is qualified or limited to some particular aspect of a matter which has been considered by the Ombudsman. That would, as in effect the argument advanced before me has suggested, bring about a position in which the Ombudsman was being given parallel powers in the public interest to determine matters which are for the Law Society in the discharge of its statutory duties as a regulator in connection with the profession. The Ombudsman, in my judgment, is not in that substantive area of determination. The Ombudsman is in a position, as the Act makes plain, to see that the manner in which and the result in any particular matter under enquiry has received what in the Ombudsman's judgment reflects the proper level of investigation and conclusion. If there is something there which calls for the matter to be looked at again because of concern on either the manner or underlying merits and impact of what has been considered, then that matter inevitably must go back to the Law Society for it to discharge its functions and thereafter the process to commence again.
28. The argument for the claimant has involved, regrettably, a considerable amount of attention being addressed to various authorities in connection with functus officio, autrefois convict, autrefois acquit, and other matters of general fairness in relation to final determinations and decisions. The challenge to the matter has been broad indeed. For example, the submission was, as originally advanced, that even if the Ombudsman had recommended that the complaint effectively be reopened and considered afresh, that would not be a recommendation that would have been open to the Law Society Ombudsman to make. That was wholly misconceived. It plainly was part of the scheme that it is open to the Ombudsman. Indeed, it is, when exercising a power under section 23(2A), it is the power that they do exercise to order a review for the reasons that I have already given. But it has meant that there has been a journey through a great number of authorities and a lot of common law principles, all done with a view to establishing that somehow or other these processes, and the outcome of these particular processes in the case of this particular claimant, have resulted in injustice and unfairness.
29. One realises, sitting in this court and many other courts over years, that there are those who are very sensitive; not unsurprisingly, professionals are very sensitive to criticisms which are made of their professional conduct. But it has long also been decided and considered by this court on many occasions that the processes which the Law Society has established through regulation and practice effectively provide for just and fair considerations of complaints of professional misconduct. If there is a sound case, or even an arguably sound case, this court is always available in order to ensure that fairness occurs. At this stage, unusually, the court was persuaded that it should, in light of the decision letter, consider what was an early decision. Early decisions by way of interruption in these disciplinary processes are very rare indeed. They are not part of the normal practice of this court. The processes must continue.
30. I have no doubt that the processes must continue in connection with this case. My regret is that it has taken so long for this matter, even from the date when I granted permission, to come before this court. My regret is that the matter relates to so many years back. But the processes must continue. If there is unfairness, if there are disadvantages, if there is prejudice, or whatever may arise in connection with the delay, they are always matters which are open for anybody to canvass before the relevant body. There are all the protections which the common law and our law generally requires for representations to be made.
31. I am satisfied that this matter fails, in so far as there is a challenge to the decision of the Solicitors' Disciplinary Tribunal, which was to the effect that they had jurisdiction to continue it, and in so far as there has been any form of challenge to the exercise of power by the Legal Services Ombudsman.
32. This application for judicial review is therefore dismissed.
33. MR HOPPER: My Lord, costs. Can I explain that generally the Tribunal does not appear on judicial reviews of its interlocutory orders, or if it does so, it does so with very small interjection and in a very neutral way. In those circumstances, it is not its practice to see costs, recognising that it can be judicially uncomfortable for there to be (inaudible) orders for costs against an unsuccessful claimant. Normally issues are joined between claimant, solicitor and the Law Society as the primary interested party, with the Tribunal standing aside. This case has not been like that. It has been considered appropriate for the Tribunal to be more actively involved and, of course, thereby to expose itself to an adverse costs order if matters should have gone in another way.
34. Because it has been necessary for the Tribunal to become involved and, in our submission, because this case has involved matters of general importance and an attack on the Tribunal's jurisdiction, we take the position that this is a case in which, firstly, we should have been involved actively and, having taken the risk of becoming involved actively from the costs point of view, we seek costs to follow the event.
35. SIR GEORGE NEWMAN: I am looking to see who has put in schedules and who has not.
36. MR HOPPER: We should all have done. I have provided one. If your Lordship has not immediately --
37. SIR GEORGE NEWMAN: I have a little clutch here which is Gorvins, that is the Law Society's.
38. MR FALKOWSKI: What my Lord is looking — if it assists, I do not challenge an application for costs from Mr Hopper.
39. MR HOPPER: I am grateful. Thank you.
40. As to quantum, I can tell your Lordship that I come in below everybody else.
41. SIR GEORGE NEWMAN: Do you?
42. MR HOPPER: It is just my natural diffidence.
43. SIR GEORGE NEWMAN: It may be just as well, having regard to some of the totals I have seen.
44. MR HOPPER: Have you managed to find one from me?
45. SIR GEORGE NEWMAN: I have not found yours yet. Where do you come in at?
46. MR HOPPER: I come in just below £14,000, my Lord. So I am well in....
47. SIR GEORGE NEWMAN: Oh yes. All right. We have applications for orders for costs all round.
48. MR MARRIOTT: I make an application on behalf of the Law Society, my Lord. I do not know whether that is opposed.
49. MR FALKOWSKI: Yes, it is. I rely on the general rule that there should only be one set of costs. Essentially, all of the points that, with variation with respect to my friends, all of the points that have been made on behalf of the interested parties, the judgment really has to a large extent followed Mr Hopper, the basis of the points that Mr Hopper has made. So if the Law Society and the Legal Services Ombudsman have appeared, they appear due to the phrase as volunteers rather than conscripts. So I say the normal rule ought to apply.
50. SIR GEORGE NEWMAN: Thank you.
51. MR FALKOWSKI: I have brought along the authorities, I believe --
52. SIR GEORGE NEWMAN: No, I am familiar enough with the authorities.
53. MR FALKOWSKI: I am sure my Lord is.
54. SIR GEORGE NEWMAN: Yes.
55. MR MARRIOTT: My Lord, I do challenge that. At the end of the day the claimant was actually attacking the powers of the Law Society to refer Mrs Haley to the Tribunal, effectively to do anything other than to wash their hands and say, "You remain with a severe reprimand." My Lord, can I refer you — I have only just picked this point up because I had not realised this was going to be a point of attack — to volume 1 of the current White Book at page 1552.
56. SIR GEORGE NEWMAN: Yes.
57. MR MARRIOTT: It is the paragraph headed "costs", 54.16.7. I accept the premise that Mr Falkowski has set out, except for of course towards the bottom, where it says:

"The courts do not, generally, order an unsuccessful claimant to pay two sets of costs, i.e. the defendant's costs and any interested party ... The courts may award two sets of costs...."

58. I suppose the court may be invited to order three sets of costs in this case:

"... may order two sets of costs where the interested party deals with a separate issue not dealt with by the defendant or where the defendant and the interested party have separate and distinct interests which require separate representation ..."

59. It is my submission that this case falls into that category. The very fact that the SDT were engaged, the Solicitors' Disciplinary Tribunal was engaged, was because of a positive act by the Law Society, i.e. the referral under their statutory powers. It is the case that the Law Society's position has always been identifiable and distinct. Again, I defer to Mr Hopper when he says that usually the Tribunal try not to become involved in interlocutory matters such as this. But this is a case where the claimant, and you found against the claimant, has attacked the very root of the authority of the Law Society to act in the public interest to refer a person to the Tribunal.
60. SIR GEORGE NEWMAN: Could not Mr Hopper have done that for you?
61. MR MARRIOTT: Well....
62. SIR GEORGE NEWMAN: He was here for the Tribunal.
63. MR MARRIOTT: He was here for the Tribunal.
64. SIR GEORGE NEWMAN: And the Tribunal is.... It is part and part of the process. It would not have been difficult for him to be instructed, would it, in order to deal with the case on behalf of the Law Society. There would not have been a conflict, would there?
65. MR MARRIOTT: There does not on the face of it appear to be a conflict, my Lord, because, as you have seen, all three defendants were taking very much the same position.
66. SIR GEORGE NEWMAN: Very much the same line.
67. MR MARRIOTT: But it is the case that initially the letter of claim was attacking the very process, whereby which the Law Society brought the case to the SDT. Therefore, in my submission, I do not think it would be right for Mr Hopper, acting for the SDT, to take the partisan line of acting for the prosecutor as well. Because that is what effectively he would have had to do. So, my Lord, I do seek an order for costs, which come in slightly above his.
68. SIR GEORGE NEWMAN: They come in very high, do not they, yours? 14, is it?
69. MR MARRIOTT: No, my Lord. £14,797 compared with the claimant just shy of £20,000 and the LSO similar.
70. SIR GEORGE NEWMAN: I have not seen the claimant's.
71. MR MARRIOTT: It is £19,579, my Lord.
72. SIR GEORGE NEWMAN: The claimant is, broadly speaking, £20,000. You are rounding it up, £14,800 and the Ombudsman are just under £20,000.
73. MR MARRIOTT: Yes, my Lord.
74. SIR GEORGE NEWMAN: Okay. Thank you.
75. Now Mr Coppel.
76. MR COPPEL: Yes. My Lord, the Ombudsman was added as an interested party by my Lord as you are aware and in my submission entirely properly, because the claimant's case has turned, and has always turned, on a construction of the Ombudsman's statutory powers and jurisdiction, both as to the ambit of her recommendation, but also in relation to the common law points made by the claimant in relation to functus and autrefois and so on. Those points posed a fundamental challenge to the Ombudsman's jurisdiction. On that issue, my Lord, you will have seen that we felt obliged to respond in some detail and to go into the legislative background, the Green Papers, the White Papers and so on and so forth, in order to maintain the Ombudsman's jurisdiction as she had always perceived it.
77. As my Lord has recognised in your judgment, the latter common law points really were wholly misconceived and should not have been brought, and they put the Ombudsman in particular to a great deal of expense which could and should be avoided. We had a distinct interest in defending our jurisdiction, as it were, and this is a case where in my submission it would be appropriate for the claimant to bear the costs of that jurisdiction being defended.
78. You have our schedule, my Lord.
79. SIR GEORGE NEWMAN: I have your schedule, Mr Coppel.
80. MR COPPEL: My Lord, all I will say about that is that there was a considerable amount of research that went into the summary grounds in the exposition of the legislative background, both as to material which ended up in the grounds and as to material which did not. But, my Lord, those are my submissions.
81. SIR GEORGE NEWMAN: There are obvious comments that can be made about the level of fees, but we will see what Mr Falkowski --
82. MR HOPPER: May I make one further point based on your exchange with Mr Marriott. That is that I think I would have been uncomfortable about accepting instructions from the Law Society directly, or indirectly through solicitors, for this reason. It is very important at this stage that the Tribunal on anything related to the facts, as opposed to the jurisdiction issues, should be seen to be absolutely neutral and not to be aligned with the Law Society. Because the consequence of your Lordship's judgment is that this matter will continue and will come to a hearing before the Tribunal, and it is very important that by no means at all do the Tribunal, through me, give any impression that the claimant would not have an absolutely fair trial. So I would have felt that there would have been some discomfort about having two sets of instructions, despite the fact that the legal arguments are aligned. It is as much about impressions as anything else, but it would have been a matter that would have concerned me had the issue arisen.
83. SIR GEORGE NEWMAN: Yes.
84. MR FALKOWSKI: To respond. First of all, the principle, I doubt that my Lord has the judicial review handbook --
85. SIR GEORGE NEWMAN: I do not have it, but read it to me.
86. MR FALKOWSKI: Nature of separate interest, quoting the case of Bedford v London Borough of Islington. The point that in my submission is being missed is that the question is, it is not is there a separate interest, it is, "Is there a conflict?" They are all saying precisely the same thing. Nature of separate interest. Developer not awarded costs commenting that:

"It does have a separate interest but it was not at the time a conflicting interest. But the entitlement to separate representation, and an interest separately to protect, does not of itself warrant the grant of a second set of costs. It is, if I might say so, almost inevitable that the interested party ... will be able to make a significant contribution to the argument and that the interested party will be able to make significant contribution to the evidence."

So that is R (Bedford) v London Borough of Islington [2002] EWHC 2044 (Admin).

87. Now so far as Mr Coppel saying the amount of time that is devoted to the autrefois convict acquit point, it is dealt with in their written argument in two paragraphs of the Legal Services Ombudsman. Of course, I do not shy from the fact that I have spent a considerable amount of time researching the point; I could not say otherwise. But we see it at page 102 of the Legal Services Ombudsman's submissions, two pages -- sorry, two paragraphs. Paragraph 16 — I am sorry, yes.
88. Mr Coppel corrects me, it actually starts at 101 and goes from there to paragraph 18.
89. MR COPPEL: No, it goes to paragraph 25.
90. MR FALKOWSKI: Can I....
91. He then deals with a Green Paper at 19. Now the Green Paper and this research on it, in my submission, is — first of all, it did not appear to be pursued and in any event this is dealing with what is meant and what is the ambit of the power under 23(2A), which I accept my Lord has found against me, but this is not, in my submission, solely dealing with that. The point is dealt with in one paragraph of the Law Society's grounds, which is at page 65, paragraph 35. It is dealt with on page 51 by the defendant, in two paragraphs. In my submission, what is being said by the others is simply the same as what Mr Hopper has said. In my submission, this does not meet the test for departing from the normal rule, that there should simply be one set of costs. This is a challenge to the Solicitors' Disciplinary Tribunal, not to the other bodies. So I resist the application for the other two parties to be given any costs order. That is my submission as to the matter of principle.
92. SIR GEORGE NEWMAN: What do you want to say about quantum?
93. MR FALKOWSKI: Dealing firstly with Mr Coppel's costs schedule, I am informed by my instructing solicitor that the hourly rate that the Supreme Court Costs Office would say is appropriate for the charge would be, he tells me, £183 per hour. That is appendix 2 of the 2007 Supreme Court Costs Office, appendix 2, and so the hourly rate is challenged there, in so far as it is the work done on documents. So the hours are not challenged, but the rate that is applied is challenged. This is a Glamorgan practice, I understand.
94. So far as Mr Marriott's bill is concerned, I understand that the same rate, £183, Milton Keynes, would be the appropriate hourly rate. Of course, a large number of hours is shown as work on documents, but then Mr Marriott appears as advocate, so of course he has spent a large number of hours preparing it. So the rate per hour is challenged, but not the time spent.
95. So far as the Legal Services Ombudsman is concerned, the hours that are spent, one sees three different fee earners, one of whom appears here today but does not appear to have done anything else in the case at all, but is the highest charging rate of £210. So that is a query, first of all.
96. But the total number of hours that it comes to by my addition is 53 hours. In my submission, this is excessive. My Lord will.... The claimant's bill comes to approximately £19,000, but of course we have brought the claim, we have dealt with all the other parties, so one would expect the other parties to come in considerably lower. Bearing in mind the time that is spent, this work is largely done at a C Grade, £145, whereas the work done on my side has been done by a partner in Outer London at £240 an hour, but our bill is approximately the same and we have obviously had the expense of bringing it. So I challenge the number of hours that have been taken in respect of this bill.
97. So those are my submissions on this bill.
98. SIR GEORGE NEWMAN: Thank you.
99. MR HOPPER: It is somehow a little demeaning, almost, but if I might explain my position, my Lord. I am the equivalent of standing counsel to the Tribunal. The consequence is that the rate that is being applied is a compromised rate, between work of a solicitor and work of Queen's Counsel, and because I am in that capacity and have some knowledge of this area of practice, the amount of time that I spent is extremely economic. You might have noticed that my attendance on my client is limited to (inaudible) of an hour, by comparison with the multiple hours that other people have to spend with those instructing them. So it is swings and roundabouts, and at the end of the day I come in cheapest by reason of that. That is the only thing I wish to add.
100. SIR GEORGE NEWMAN: Thank you very much.
101. Does anybody else want to say anything? Mr Marriott.
102. MR MARRIOTT: My Lord, simply this, two points. I urge the court to grant a second order. It is clear that there is a necessity for separate representation by the Law Society, prosecutor and the court, and that is been endorsed rightly by the representative for the court.
103. On the hourly rate, my Lord, I think there is no challenge to the amount of time, just the hourly rate. All my friend has done is to quote a guideline. I have conducted cases — and you can see there is no claim for travel in this claim — where the Supreme Court Costs Office have very happily awarded the rate that I charge, namely £230, for solicitor advocate.
104. MR COPPEL: Two points from me, my Lord. The first point is that the entirety of the section in the Ombudsman's grounds relating to the legislative history of the Act and the jurisdiction was there to meet the autrefois and functus argument, not the section 23(2A) argument, and that runs is eight or nine pages through to 107 of the bundle.
105. Secondly, on the bill it is in my submission to the credit of the Ombudsman that the vast majority of the work on this case was done at a very low hourly rate, at £145 per hour, and it is only the attendance of today where somebody more senior has been employed.
106. SIR GEORGE NEWMAN: There are applications from the defendant and the two interested parties in connection with costs. I regard the position of the defendant, the Solicitors' Disciplinary Tribunal, to be essentially straightforward.
107. So far as they are concerned, Mr Hopper QC has attended. He has in substance advanced the submissions, which effectively as accepted by the court, disposed of the principal argument for the claimant and it left counsel for the Law Society and the Legal Services Ombudsman in a position where they were content to adopt the argument. Had that been the clear position on the principal argument of the claimant, the situation could probably have been dealt with by Mr Hopper attending and addressing oral argument and the position of the Law Society and the Legal Services Ombudsman resting, as it sometimes does in cases, upon the detailed grounds of defence or argument.
108. The real cause of what seems to me to be an excessive situation in costs which has arisen stems from the wide target of attack which the claimant adopted. Rather than confining the claimant's case to the essential point as the court has determined it today, the claimant undertook a complete onslaught on the disciplinary processes and the range of powers and procedures available in these circumstances in order to achieve a result.
109. The terms of the permission as granted might have been a clue to what was the reason why permission was being granted, which were limited to the tolerably straightforward point that we have had to deal with today.
110. All that said, I am deeply concerned that a claimant is in effect faced with a bill of costs which, if my rough mathematics is correct, if all parties receive their costs in accordance with the schedules, of something like £50,000. The court inevitably must stand back and look at the position as best it can. This is not an exact science. It is doing its best to ensure that those who have incurred expense in the discharge of their very important public functions are recognised for having in some way or another for having done what they have done, but without receiving, as it seems to me, complete recompense for all costs involved, when it must have been plain to those concerned, namely the defendant and the interested parties, that, despite the misconceived adherence to the arguments in respect of functus officio and autrefois acquit and convict, there was nothing in those arguments and it was an occasion where a confident stand could be taken that they did not require development.
111. I am satisfied too, the matter may also impact upon my thinking processes, that whilst this is not meant to censure the Legal Services Ombudsman in any way, I am bound to say that the trouble has been caused in this case by the terms of the decision letter. But for the terms of the decision letter, we would not be where we are today. In those circumstances, it seems to me that there are reasons why the claimant should be relieved of carrying the whole burden of costs of everybody present. I am equally persuaded that it would have been quite difficult for Mr Hopper to be formally here representing the Law Society. But as I have said, the Law Society might have taken the position, in the light of the way in which the argument were being canvassed, that attendance by an advocate was not necessary, and that detailed written submissions, supported as they would inevitably be, impliedly, by Mr Hopper's argument, would be sufficient.
112. It seems to me that the way in which justice is met is that the Solicitors' Disciplinary Tribunal should recover their costs in the sum of the schedule, namely £13,912, which sum includes VAT. I am not persuaded that the level of remuneration which has been sought, either by way of hourly rate or by way of brief fee and work on Mr Hopper's behalf, was any way so unreasonable that I should intervene so as to reduce it. It seems to me, having seen the level otherwise available to counsel in the case that leading counsel, Mr Hopper, has been remunerated in a way which is demonstrably reasonable if the benchmark is taken from other counsel in the case.
113. So that being the position, in round terms, the claimant must be responsible for £14,000 in costs. The question is: what else should be recovered? Doing the best I can, it seems to me the Law Society must recover some of their costs. It has been necessary for them to identify their particular interests in this piece of litigation, and to do so without any possible suggestion of connection with the Disciplinary Tribunal. Independent representation, as I would have envisaged and hoped, by way of legal submissions in writing would have been sufficient. But then there is the nagging question of the wide range of argument which was being taken up by the claimant. Again, I think a robust attitude by way of response to that could have been adopted, and it was one which in any event which Mr Hopper was in some position to deal with.
114. I propose, so far as the Law Society are concerned, to award them £5,000 in costs, which will more than cover what I believe would be the normal detailed grounds of defence and will go some way to covering the period of time which has been devoted by those in the Law Society and Mr Marriott.
115. So far as the Legal Services Ombudsman is concerned, having regard to the point I have already made, but nevertheless the need, as a result of the point I have already made, for that which I had to order, namely that there should be some response from the Legal Services Ombudsman. Having regard to the Legal Services Ombudsman, whilst faced with what could be seen as an important challenge to the powers of the Ombudsman, nevertheless would have been in a position to take some confidence in the other representation which was being made in the case, I have concluded that only a lesser sum than the Law Society should be made available to the Ombudsman. It was essential, in view of the challenge, that the Ombudsman make a case. That is why I ordered it. It was the Ombudsman's decision which gave rise to the difficulties. I will not comment any more about the scale of fees for the Ombudsman, but they are plainly such as involve an immense amount of overlap with what has otherwise been done by others in the case. In my judgment, doing the best I can, a figure of £3,000 should be paid to the Ombudsman in respect of costs.
116. Thus the total amount as I have awarded is a total award of a figure just short of £14,000 for the Disciplinary Tribunal, £5,000 for the Law Society and £3,000 for the Ombudsman.
117. MR MARRIOTT: Those figures, my Lord, you mentioned VAT for the SDT. I assume it is inclusive of VAT?
118. SIR GEORGE NEWMAN: Inclusive of VAT. Thank you all very much. I have to say, since we have no associate, I hope this is not going to put.... I need to ask you to draft the order. Now I do not want any high scale of fees to be charged in respect of this, but somebody has to do it.
119. Mr Hopper, as the senior member....
120. MR HOPPER: It looks like it, my Lord.
121. SIR GEORGE NEWMAN: Could you do that? Draw up an order, circulate it among the others, and when you have agreed it, submit it to me, it will probably have to come to me in the end, will it not? It will so via the office. It will get to me eventually anyway. Thank you very much indeed.