Deputy Chief Legal Ombudsman v Howard Robert Gillespie Young
| Jurisdiction | England & Wales |
| Judge | Mr Justice Lindblom |
| Judgment Date | 14 November 2011 |
| Neutral Citation | [2011] EWHC 2923 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 14 November 2011 |
[2011] EWHC 2923 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Lindblom
Philip Havers QC (instructed by General Counsel, Legal Ombudsman) appeared on behalf of the Claimant
Mr Young appeared in person
Hearing dates: 10, 13, 27 May; 7 Oct; 14 Nov 2011
Introduction
In these proceedings the claimant, the Deputy Chief Legal Ombudsman for England and Wales, Mr Gary Garland, ("the ombudsman") requested the court, (i) under s.149(3) of the Legal Services Act 2007, to inquire into the case of the defendant, Mr Howard Young, a solicitor who practised at one time in the firm of CMG Law in Bolton and later at Stirling Law in Oldham, and (ii) under s.149(4) of the 2007 Act, to "deal with" the defendant for his alleged default on the requirements of a notice issued by the ombudsman under s.147 of the 2007 Act, as if he were in contempt of court. At a hearing on 7 October 2011, having considered all the evidence and submissions on either side, including the defendant's mitigation, I was able to conclude my inquiry into his case. I dealt with him for his default, imposing on him a fine of £5,000, which is to be paid by 4 January 2012, and to pay the ombudsman's costs, in the total sum of £15,550, by 7 December 2011. I now give my full reasons for granting the ombudsman's application.
Background
The ombudsman has had to investigate a complaint about legal services provided by the defendant to Mr and Mrs W. The complaint was made by Mr and Mrs W in October 2010. By the notice he issued under s.147 of the 2007 Act the ombudsman required the defendant to produce specific documents, files and bills, which the ombudsman considered were necessary to enable him to determine the complaint. The defendant failed to comply with that requirement. On 24 January 2011 the ombudsman submitted a report to the Solicitors Regulation Authority ("the SRA") under s.s 143, 145 and 148(2) of the 2007 Act, stating, among other things, that he believed the defendant had failed to comply with the requirements imposed on him by the s.147 notice. The documents required were still not produced. The ombudsman considered the defendant to be a defaulter, as defined by s.149 of the 2007 Act, and duly certified that he had failed not only to provide the information he had been required to provide and to produce the documents he had been required to produce but also to give any good reason or excuse for that failure.
Mr and Mrs W's complaint
The complaint that had been made against the defendant was described in paras 12–20 of the ombudsman's report:
"12. [Mr and Mrs W] complained to [the ombudsman] on 15 October 2010. They told [the ombudsman] that they had complained to [the defendant] on 1 September 2010, but had had no reply. What follows in paras 13–19 is a summary of the facts and information they provided.
"13. Their complaint was that they had been dealing with [the defendant] at his practice at a firm called CMG Law in respect of two cases: an employment tribunal case and an insurance matter. CMG Law's address was 94 Chorley New Road, Bolton, …
"14. The tribunal case had been running for around 18 months. A hearing had been due on 13–15 September 2010. Owing to a sudden death in the family they had instructed [the defendant] to apply for an adjournment. They were informed by [the defendant] that the adjournment had been granted and that they should wait a few weeks and then contact him again.
"15. They did as advised, but when they tried to get back in touch they got no response. They complain they tried for a month, calling every day, sometimes leaving messages. They also sent e-mails which again received no response.
"16. During one call made, as they thought to CMG, they realised that they were speaking to a firm called BYL. That firm told them that CMG were not in practice any more and that [the defendant] was working there at BYL. In a later call BYL informed them [the defendant] no longer worked there and that BYL held no forwarding address for him. A person at BYL identifying himself as Mr Goldstone explained that [Mr and Mrs W]'s papers were not held at BYL and that he did not know where they were.
"17. [Mr and Mrs W] had paid [the defendant] £500 on account. They have not received a bill, and are concerned as to where the money is or how it has been spent.
"18. The second case handled by [the defendant] on their behalf was a claim on an insurance policy that they had instructed [the defendant] to make. They were told that after a certain period of time he could commence litigation to get the money they were owed under the policy. This time period has expired and they believe no litigation has begun, and that little if anything has been done to progress their claim …
"19. [Mr and Mrs W] were and are very concerned about the situation. They need their papers back urgently so they can progress the employment tribunal case and insurance claim (which appears to me to be likely to be some sort of mortgage protection insurance). They were and are relying on the insurance payment to service the mortgage on their home. The delays and stress are causing them sleepless nights.
"20. Of course if the papers show that [Mr and Mrs W]'s position in either of the employment case or the insurance claim has been adversely affected by the delay and failure in communication they will, I anticipate, seek a remedy for that."
The ombudsman's investigation
The ombudsman's report then described the steps which had been taken in the investigation of the complaint.
From the outset, progress was hampered by a persistent lack of response from the defendant to messages and requests in which the ombudsman sought his co-operation. Once the ombudsman had satisfied himself that the complaint fell within his jurisdiction, he tried to get in touch with the defendant. This proved difficult. At this stage the SRA said that it thought CMG Law was still operating and that the defendant still held a valid practising certificate. However, when a member of the ombudsman's staff spoke to a Ms Lord, the practice manager at BYL Law, she said that CMG Law was no longer operating, and that the defendant had worked at BYL Law as a consultant for about four or five weeks but had left on 11 October 2010. Ms Lord also said that the defendant had told BYL Law that he had notified the SRA of what he was doing and that he had told BYL Law he was going to join another firm. The ombudsman's staff also recorded that Mrs W had said that she had been unaware of any of this until she was told it by BYL Law. It seemed clear, however, that the defendant had files belonging to Mr and Mrs W which he had not released.
On 12 November 2010 the ombudsman told the SRA what he was doing and asked the SRA what it was doing about the defendant's activities. The ombudsman decided, however, that Mr and Mrs W's complaint ought still to be dealt with, even though the defendant had now been reported to the regulator. Therefore, on 16 November 2010, the defendant's case was allocated to Ms Caroline Sansoy, an investigator in the Ombudsman's Resolution Centre. Ms Sansoy's task was to investigate the complaint, to obtain the defendant's observations and to get hold of the necessary factual information and documents. If she could, she would help both sides to reach an amicable and informal resolution of the complaint. If this was not possible her task was to prepare a report on her investigation, give both sides an opportunity to make representations, and then submit those representations and her report to the ombudsman. The ombudsman would then be able to make a decision on the complaint. Ms Sansoy needed the relevant papers and preferably the defendant's observations on the complaint if she was to make progress with his case. She discovered that the defendant was now working at Stirling Law at Greengate Business Park in Oldham. She telephoned Stirling Law, and left messages asking the defendant to contact her. The defendant did not respond. On 18 November 2010 Ms Sansoy sent a message to the e-mail address which had been given to her by Stirling Law, marking it for the attention of the defendant and asking him to get in touch with her. In her e-mail she explained who she was and what she was doing. Again the defendant did not respond. On 30 November 2010 Ms Sansoy tried again to get in touch with the defendant, both by telephone and by sending another e-mail to Stirling Law. This time she used a personal e-mail address for the defendant. Again she received no response. On 8 December 2010 Ms Sansoy spoke to a member of Stirling Law's staff, requesting that the defendant call her back without delay. She asked whether the defendant had taken Mr and Mrs W's file with him from CMG Law to Stirling Law, but the person she spoke to could not answer that question. No return call came from the defendant. On 14 December 2010 Ms Sansoy sent a letter to the defendant reminding him of what he had to do to co-operate with the ombudsman's investigation and asking him to respond within seven days. The defendant did not respond.
On 17 December 2010 the Chief Legal Ombudsman, Mr Adam Sampson, wrote personally to the defendant seeking to impress on him the need to respond and warning him of some of the possible consequences of his continuing to fail to communicate with the ombudsman. On the same day Mr Sampson also wrote to Mr Glynn Willmott, the senior partner of Stirling Law. Although the ombudsman's...
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