The court said ombudsman decisions should be read in a straightforward, down-to-earth way that avoids excessive legalism
The Court of Appeal has reinstated a Legal Ombudsman award of £15,692.60 against Aina Khan Law Limited after finding that the High Court wrongly quashed part of the ombudsman’s decision.
In Aina Khan Law Limited v Legal Ombudsman, Lord Justice Holgate, with whom Lord Justice Baker and Lord Justice Coulson agreed, allowed the Legal Ombudsman’s appeal against an order made by David Pievsky KC, sitting as a deputy High Court judge.
The case arose from complaints brought by an anonymised former client, CXV, who had instructed the family law firm in September 2020 after the breakdown of her marriage and the start of family proceedings. She sought advice on divorce, arrangements for the children and a freezing injunction against her husband’s assets.
The Legal Ombudsman had upheld complaints that Aina Khan Law failed to adequately assess CXV’s litigation capacity and had charged excessive costs for the work completed. It directed the firm to pay total compensation of £51,192.60, made up of £35,500 relating to costs and £15,692.60 relating to the capacity issue.
Aina Khan Law brought judicial review proceedings challenging the ombudsman’s decision. The High Court rejected the challenge to the £35,500 costs award but accepted the firm’s irrationality challenge in relation to the capacity complaint, quashing the £15,692.60 part of the award.
The Legal Ombudsman appealed, arguing that the High Court had approached the decision with excessive legalism and imposed too onerous a standard when assessing the ombudsman’s reasons. The Court of Appeal agreed.
Holgate LJ said the ombudsman scheme is intended to resolve complaints quickly and with minimum formality, with complaints determined by reference to what the ombudsman considers fair and reasonable in all the circumstances. He said the ombudsman is not limited to deciding whether a solicitor has been negligent.
The court held that the High Court had wrongly treated the ombudsman’s reasoning as if it had to satisfy an unduly strict legal analysis. Holgate LJ said decisions of this kind should be read in a “straightforward down-to-earth” way, avoiding excessive legalism.
The Court of Appeal said the ombudsman had not conflated mental health issues with mental incapacity. Instead, she was entitled to consider whether there were sufficient indicators that CXV was vulnerable and required additional support during the retainer.
Holgate LJ said the ombudsman’s decision should be read fairly and as a whole. Read in that way, it referred to evidence that CXV had mental health difficulties from the outset of the retainer and that the firm should have considered earlier whether she required additional support, including from family members.
The court found there was no irrationality in the ombudsman’s reasoning. Holgate LJ said the ombudsman was entitled to reach the conclusions she did on the material before her and had given legally adequate reasons.
He added that the High Court’s approach risked drawing the court into factual issues and merits that were for the ombudsman. The judge’s criticisms of the ombudsman’s reasoning were, he said, unjustified.
The appeal was allowed, the High Court’s quashing order was set aside and the £15,692.60 award was restored. The Court of Appeal also set aside the High Court’s costs order.