Court rejects ombudsman’s ‘perverse’ costs award
Topics: Costs, fees and funding
The High Court has sharply criticised the Legal Ombudsman for meddling in matters beyond its own jurisdiction when handling a complaint against a barrister.
The Honourable Mr Justice Coulson said the ombudsman’s decision to award costs to a former client of direct access barrister John Stenhouse was made in breach of the rules of natural justice.
The £2,609 costs were incurred in the county court during proceedings – stayed until the outcome of this judgment – ongoing between Stenhouse and his client over fees. The issue was not even part of the client’s original eight-point complaint against Stenhouse, yet the ombudsman ruled that Stenhouse should meet the costs triggered by his behaviour.
‘Here, the LO’s findings were irrational and perverse, and therefore should never have been made,’ said Coulson. ‘No authority has been cited to me as to how or why the LO could decide a costs issue which is a matter within the sole jurisdiction of the county court.’
However the judge upheld a £600 award to the client, named as Lucy De La Pasture, to compensate for Stenhouse acting in a ‘discourteous and aggressive manner’ towards her.
The court heard that the barrister knew his client had a brain injury, and in his response to her complaint he suggested her letters were ‘the product of a muddled mind created by your condition’.
In Stenhouse v The Legal Ombudsman & Anor, Coulson said the ombudsman had made the ‘basic’ fault of setting out complaints but then not dealing with each in a clear way. The judge said the ombudsman’s determination was ‘sloppy’ and forced the court to ‘engage in a deconstruction exercise to try and work out’ what was being expressed.
Nevertheless, Coulson upheld the element of the complaint related to Stenhouse’s manner, saying the ombudsman had jurisdiction to make a finding on the issue and was not prejudiced by earlier exchanges between the parties.
The judge added: ‘For the LO, the claimant’s defence of himself exceeded the boundaries of acceptable robustness, and in my view, that was a conclusion which the LO was plainly entitled to reach.
‘In the context of the letter as a whole, it is very difficult to read it as anything other than offensive.’
A theme of the judgment was Coulson’s dismay at the conduct of all parties and even at the case being brought at all.
He explained that the case required three volumes of correspondence and other material, and three volumes of authorities.
‘This is a sorry saga and one from which nobody emerges with any credit,’ said Coulson. ‘No possible stone has been left unturned by both the claimant and the LO.
'The costs and the time devoted to the LO’s complaint process and these resulting proceedings are out of all proportion to the sums at stake. Some may regard it as one of the great glories of the English legal system that so much effort and public money can go into a claim worth at most £3,000. It is not a view that I share.’
No costs order was made, as both parties had been successful in one element each of the case.