Practice and Procedure


PUBLISHED June 17, 2003

The Office for Supervision of Solicitors had jurisdiction to reopen a complaint by a client of a solicitor where the solicitor was in breach of an agreement entered into with the client to settle the complaint against him.Application for judicial review of the decision of an adjudicator of the Office for the Supervision of Solicitors ('OSS'). The applicant ('H') was a solicitor. A dissatisfied client ('S') made a number of complaints about H starting in 1996. In 2000 an agreement was reached and approved by the Law Society that required H to return to S all S's files which H still held. H broke the agreement by not returning the files. In May 2001 the OSS therefore reopened S's complaint and an adjudicator found the complaint proved in two respects: that H had broken the agreement by failing to return S's files and that H had moved S's files without permission when H had changed firms. He ordered H to pay compensation to S in the maximum sum of ?5,000. H appealed and the decision was upheld by the adjudication panel. H applied for judicial review arguing that the OSS had no jurisdiction to entertain the renewed complaint because it related to conduct occurring after the termination of his retainer by S in August 1998. Alternatively the award of compensation was irrationally severe. The judge dismissed the application but the Court of Appeal granted permission to apply for judicial review.HELD: (1) Under Sch.1A Solicitors Act 1974 the OSS had jurisdiction to consider any matter in which the solicitor or his firm had at any time been instructed. The jurisdiction embraced professional services provided by the solicitor in connection with any matter in which he or his firm had been instructed and that included the agreement in this case with S to compromise his complaint. The agreement was made in connection with matters in which H was instructed and was an agreement for a professional service, namely the return of documents held by him as solicitor. Moreover a solicitor's services were required to include provision for dealing properly with complaints. (2) The OSS was entitled as a matter of law to conclude that both the failure to return the files as had been agreed and the failure to obtain S's authority to move his files from one firm to another represented the delivery of sub-standard professional services, even if they might also amount to professional misconduct, a disciplinary offence carrying much more severe penalties. (3) The OSS should reconsider the award of compensation because the adjudicator was mistaken on a particular important fact. (4) There was no room for a purely punitive element in an award under Sch.1A of the 1974 Act but there was room for compensation which reflected not only the stress and inconvenience caused by the misconduct but its persistence and contumacy. Such elements were present here. (5) It was not necessary to decide whether the imposition of the maximum award was wrong in principle. (6) Each side should bear its own costs.Judgment accordingly.

[2003] EWCA Civ 788