Deputy Chief Ombudsman, R (on the application of) v French

Neutral Citation Number: [2012] EWHC 113 (Admin) IN THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION THE ADMINISTRATIVE COURT CO/10808/2011 Royal Courts of Justice Strand London WC2A 2LL Wednesday, 18 January 2012 B e f o r e: MR JUSTICE WYN WILLIAMS - - - - - - - - - - - - - - - - - - - - - Between: THE QUEEN ON THE APPLICATION OF DEPUTY CHIEF OMBUDSMAN Claimant Defendant v FRENCH - - - - - - - - - - - - - - - - - - - - - Computer-Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7404 1424 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr A Rich (instructed by In-house Legal Ombudsman) appeared on behalf of the Claimant The Defendant appeared in person - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. 2. 3. 4. 5. 6. JUSTICE WYN WILLIAMS: These proceedings are brought under section 149 of the Legal Services Act 2007. They are brought by Mr Gary Garland, the Deputy Chief Legal Ombudsman, against the defendant, Mr French, who is a solicitor, but currently suspended. It is unnecessary to explain the statutory framework with which the court is concerned in respect of these proceedings. I say that, since the relevant statutory provisions are fully detailed and explained in the reserved judgment of Lindblom J in Legal Ombudsman v Young [2011] EWHC 2923 Admin. That said, there is one point relating to the statutory provisions to which I will return later in this judgment. The relevant background circumstances can be set out shortly. On 9 February 2008, the mother of a lady, who I shall describe in this judgment as Mrs B, died. Under the terms of the deceased's will, Mrs B was the executor. Shortly after the death, Mrs B retained the defendant's firm of solicitors to act for her in her role as an executor in order to assist her in administering the estate. I am told, and have no reason to doubt, that at the time of death the estate in question had an approximate value of £230,000. In the initial stages of administration matters proceeded smoothly. However, in 2009 and 2010, it became clear that the administration was not proceeding smoothly. In part, at least, I am prepared to accept that that was because the day-to-day conduct of the administration was in the hands of a probate clerk employed by the defendant and that clerk retired on 31 March 2010. However, on any view by late 2010, proper progress had not been made in relation to the administration of the estate. On 9 December 2010, Mrs B wrote to the Legal Ombudsman to complain about the defendant's firm. I have used the expression defendant's firm, I hope, correctly; the actual name of the firm at the material time was Michael French and Booth Hearn. Shortly after that complaint, the Legal Ombudsman notified Mrs B that it was first appropriate that she should complain to the firm itself. Mrs B accepted that advice. On 31 December she complained in writing to the firm and sent a copy to the Ombudsman. Nothing immediately followed in response to her complaint. On 21 February 2011, the Solicitor Disciplinary Tribunal conducted a hearing into complaints about Mr French. It decided on that day to suspend Mr French from practice indefinitely. Whether Mrs B knew that or not matters not. It suffices to say that, nothing having occurred following her complaint to the firm on 31 December, she complained again to the Legal Ombudsman on 7 March. On this occasion, her complaint was accepted for investigation. On 14 April 2011, the investigator employed by the Legal Ombudsman to investigate the complaint against the defendant e-mailed his firm requesting a response to the contents of the e-mail by 21 April; no response was received. On 21 April, the investigator telephoned the firm; no substantive progress was made. On the same day, the investigator resent the e-mail to a different e-mail address; still no response. Accordingly, on 4 May 2011, the investigator telephoned the firm again; a conversation took place in which the investigator agreed an extension of time until 6 May for a response to her e-mails. By 11 May, the investigator had received no response. She sent another e-mail; still, no response of any kind to the telephone calls or e-mails to which I have referred. 7. 8. 9. On 10 June 2011, the investigator made a conduct referral to the Solicitors Regulation Authority. In so doing, she was acting in accordance with section 143 of the 2007 Act. No doubt totally frustrated by the inactivity and/or inaction on the part Mr French, the investigator issued a notice under section 147 of the 2007 Act on 18 July 2011. A copy of the notice is in evidence before me. It is addressed to the defendant personally. It notifies him that it comes from the Deputy Chief Legal Ombudsman for England and Wales. It sets out a number of matters, including a recital of the Ombudsman's relevant powers and it informs Mr French that he is required to provide specified information to the Ombudsman by no later than 4.00 pm on 29 July 2011. The specified information was set out in Schedule 1 and Schedule 2 to the notice. Schedule 1 specified various documents which were to be produced. Schedule 2 required Mr French to explain why it was, if it was the case, that he was unable to provide such documentation. Notwithstanding the service of that formal legal document upon the defendant, and notwithstanding that it informed him in clear terms that a failure to comply with it might render him in contempt of court, Mr French did not respond to the notice. On 4 August 2011, in response to the defendant's failure, the Ombudsman made a conduct referral to the Solicitors Regulation Authority. The complaint was that the defendant had failed to comply with the notice under section 147 of the 2007 Act. On 6 September 2011, the Solicitors Regulation Authority contacted Mr French giving him 14 days to respond. On 22 September 2011, the Solicitors Regulation Authority contacted the Legal Ombudsman to confirm that Mr French had failed to respond to the notice sent on 6 September 2011. Consequently, on 12 October 2011, a further letter was sent, as I understand it, by the Ombudsman, and an e-mail, concerning Mr French's continued failure to comply and informing him that he had until 19 October to respond. In fact, on 17 October, the Solicitors Regulation Authority ordered that an intervention should take place in relation to Mr French's firm and that had the effect, obviously, of involving another solicitor or firm of solicitors in the affairs of Mr French's firm. 10. As it happens, the Legal Ombudsman was unaware that the Solicitors Regulation Authority had taken the step of intervening. So it was that on 8 November 2011, the claim form in these proceedings was issued. As I have said, at that stage, the Legal Ombudsman was unaware of the intervention. The Ombudsman became aware of the intervention shortly after the proceedings had been instituted. Within days, the firm that had intervened on behalf of the SRA was able to provide most if not all of the documents which had been sought in the notice served as long ago at 18 July 2011. 11. These proceedings are supported by a claim form and relevant evidence. It is unnecessary to refer in any detail to the evidence served since in the main it describes the chronology of events to which I have just referred and it exhibits the relevant documents, for example the section 147 notice. 12. Under section 149 of the 2007 Act, if a court is satisfied that the solicitor in question has defaulted in complying with a notice served under section 147, it may enquire into that failure and it may deal with the defaulter if it decides to enquire and finds that the default proved. It is common ground that in the vent that a court finds a default proved it may deal with the defaulter as if he was in contempt of court. SMITH BERNAL WORDWAVE 13. In this case there can be no doubt that it is appropriate to enquire into the default alleged. Having done so, it is clear that the default is proved; indeed it is admitted by Mr French. Equally clearly it is appropriate for this court to deal with the default. Mr French has said nothing which suggests to the contrary. Ultimately therefore the issue for this court in this case is what sanction should be imposed by the court for the admitted default on the part of Mr French in complying with the notice served upon him under section 147 of the 2007 Act. 14. Before dealing with the issue of sanction, however, I should deal shortly with one point which was raised by counsel on behalf of the claimant in respect of my jurisdiction. As I have recorded in the chronology set out earlier in this judgment, the defendant was suspended from practice in February 2011, that is, before these proceedings were commenced. Does that impact upon the jurisdiction of this court to deal with his default? In my judgment, the answer to that question is that it does not. The jurisdiction of the Ombudsman is defined by section 125 of the 2007 Act. That provides that jurisdiction is conferred upon the ombudsman if the solicitor in question comes within section 128. The defendant is within section 128 because the acts and omissions about which Mrs B complained occurred at a time when the defendant was not suspended i.e. in 2009 and 2010 - see section 128(1) and 128(7). I have no doubt that the proper interpretation of section 128 of the 2007 Act confers jurisdiction upon the ombudsman in this case and, accordingly, this court has power to take action in respect of the defendant's failure to comply with the notice served by the Ombudsman. 15. Let me turn therefore to the question of sanction. In the skeleton argument presented on behalf of the Ombudsman, there are passages which set out the matters which are said to be relevant to the defendant's culpability in this case. It is said that the defendant's refusal to comply with the section 147 notice caused severe prejudice to his former clients because, as he should have appreciated, the absence of the relevant information and documents seriously hampered the Ombudsman's investigation of a legitimate complaint. Secondly, it is pointed out that the defendant could easily have complied with the request. As I have said, the solicitor's firm which intervened was able to produce most if not all of the relevant documentation literally within days. The defendant is a solicitor and an officer of the court and owes a duty to the court in that capacity. His actions, submit the Ombudsman, in totally ignoring legitimate requests for information were entirely inappropriate for an officer of the court. The defendant’s conduct was totally unbefitting a solicitor and officer of the court. 16. It is also pointed out that at the time of his default the defendant was under investigation by the Solicitors Disciplinary Tribunal; he had actually been suspended from practice and it appears to me that Mr Rich is correct when he submits that the defendant, during the course of a Solicitors Disciplinary Tribunal hearing, at least impliedly represented to the Tribunal that the relevant documentation, ie the documents relevant to Mrs B's complaint, was not in his possession, when palpably that was not true. 17. All these matters, submit Mr Rich, demonstrate that there is significant culpability on the part of the defendant. SMITH BERNAL WORDWAVE 18. Mr Rich also points out that the defendant's failure to comply with the notice should be seen in the context of his appearances before the Solicitors Disciplinary Tribunal. There have been two such appearances and one of those appearances has resulted in a fine being levied against the defendant in the sum of £8,000, together with an order for costs. 19. Yesterday, the defendant filed an affidavit in response to these proceedings. He has appeared before me. The substance of his affidavit and what he has said orally to me today can be summarised as follows. First, he unreservedly apologises for his conduct, which he accepts is totally unacceptable. Second, he offers no excuse for his conduct, save to suggest that by 2010 in particular, the pressures in his personal and professional life were such that, to use a colloquialism, he was unable to cope. He tells me that his professional and personal life is seriously damaged. The defendant is currently suspended, but he accepts that inevitably he will be struck off. Personally, he is engaged in matrimonial proceedings with his wife. He is a man who is nearly 65 years of age. He finds himself in the unhappy position of living in the matrimonial home with his estranged wife, essentially because neither of them can afford to find alternative accommodation. In due course, however, the likelihood is that the defendant will have to find alternative accommodation at a comparatively late stage of his life at a time when his finances are poor. I say that because obviously given that he is suspended he is in no position to earn any kind of substantial income. His resources are limited to a pension, though I note that his wife has a pension-sharing agreement in force in respect of the pension, and he has £1,000 as I understand it in a bank account, and the prospect of about £14,000 being paid to him in respect of overpayment of income tax. On any view, however, his financial position, judging as I do that Mr French is being frank about it, is somewhat precarious. I also accept the inevitable prospect that obtaining substantial gainful employment at his age and given that he will be struck off in due course, will prove to be extremely difficult. 20. What then am I to do in these circumstances? I say without hesitation that the defendant's default is such that a sentence of imprisonment would be justified. It is simply not acceptable for a solicitor to behave in the way that Mr French did in this case. To repeat, he ignored reasonable requests for information in respect of a perfectly legitimate complaint, then he failed inexcusably to deal with a notice served upon him under statutory provisions when that notice informed him that to fail to respond might constitute a contempt of court. Such behaviour by an officer of the court cannot be tolerated by the court. To repeat, in my judgment, a sentence of imprisonment would be justified to bring home to Mr French and to other solicitors who might find themselves in his position that they should not wilfully ignore matters of such importance. 21. I am persuaded, however, that I should suspend the sentence of imprisonment which I regard as appropriate. I say that essentially because of the personal mitigation available to Mr French as I have detailed in this judgment. The main features of the mitigation are that over very many years he practised successfully and with propriety as a solicitor, his age and his continuing personal difficulties which I am sure are not at an end. As I say, taking account of all the factors which are essentially personal to him, I take the SMITH BERNAL WORDWAVE view that it is appropriate to suspend the sentence of imprisonment which is appropriate in this case. 22. As to the length of the sentence, I have had regard to the summary of the cases put before me by Mr Rich. It seems to me that for a default of this kind, but taking account of the fact that it is an admitted default with a full apology, the appropriate sentence of imprisonment would be one of 4 months. Accordingly, I propose to impose a sanction of 4 months' imprisonment, but suspended for 12 months. I see no reason why I should deprive the claimant of any part of their costs. Unless Mr French is very persuasive in any submissions he wishes to make in respect of costs, I propose to make an order that the defendant should pay the claimant's cost assessed in the sum claimed. As I have said, if Mr French wishes to argue strenuously about the amount, now is his opportunity. 23. THE DEFENDANT: My Lord, not at all. 24. JUSTICE WYN WILLIAMS: In that event, as I have said, the order is that the defendant should pay the claimant's cost to be assessed in the sum claimed. Anything else? 25. MR RICH: No, my Lord, I am most grateful for your Lordship's judgment. 26. JUSTICE WYN WILLIAMS: Thank you. 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