Popplewell J acknowledged that the court could not put itself in the position of the Ombudsman and test the reasonableness of the decision against any decision the court would have made, he also said that it could not review the merits of the decision as if it were exercising those powers.
The applicant needed to get over a “high threshold, particularly in the context of a scheme intended to resolve complaints swiftly and informally in which the decision maker is afforded a wide discretion to do what he thinks is fair and reasonable in all the circumstances”. His conclusion that in this instance our reasoning was not “logically capable of supporting the conclusion” and therefore was “Wednesbury unreasonable” was clearly based on the facts. We have taken on board everything in the judgment.
As the judge said, our approach is to strive for a speedy, informal resolution of complaints, which places fairness at its heart. It is of benefit to all concerned that we continue to operate in this way.
Our expectations of direct access barristers
It is true that judicial reviews offer some opportunity to learn lessons. For the Ombudsman, they present an opportunity to refine our process, acting as a quality control mechanism. For professionals, they offer recourse to the opinion of a judge and assurance that there is somewhere to turn if you believe a decision has been unreasonably made.
However, as the threshold for overturning an Ombudsman decision is set so high, a judicial review can often be a dead end for those bringing them. Given that we are seeing an increase in the number of complaints about services provided by public access barristers, it is timely, therefore, to set out our expectations of the sort of service elements which they should provide, together with some discussion as to how we approach complaints about them. In doing so, we should also be clear that we are not attempting to supplant the formal regulatory structure created and policed by the Bar Standards Board, or the guidance it has issued. Rather, we feel some broad guidance setting out our approach would be useful to consider when providing a service and when dealing with any complaints, should your client be unhappy for any reason.
We would normally expect public access barristers to be clear in their marketing and positioning material about what sort of work they offer and what they don’t. For instance, you should be explicit about what work you undertake (criminal, family, immigration, etc) and what sort of services you are willing to provide (advice, advocacy, conduct of litigation etc).
In cases where some sort of continuity of service is envisaged beyond a single contact, we would normally expect to see you explain how you can be contacted and when. In addition, we’d usually expect to see that there were satisfactory administrative arrangements in place and that any reasonable adjustments required made to support the provision of the service to the client. The fact that you were busy on other work, for example, would not necessarily excuse the failure to provide a timely response to an enquiry.
Client care letter
Public access barristers are required to send a client care letter as soon as possible after an initial engagement meeting. We’d expect to see in that letter details about what services you will provide, on what timescale and at what cost. The more detail the better.
Many of the complaints we see are about unexpected costs or insufficient costs information. Therefore, you should pay particular attention to the level of costs information you provide.
We have guidance on the subject of costs information on our website; but, broadly speaking, you should give clear information about charging methods (hourly costs, fixed fees etc); provide initial estimates, updated as matters develop; provide regular costs updates; and consult clients at key times when additional costs are likely to be incurred, providing them where possible with financial choices about alternative ways of how the case might be progressed.
Correspondence and communication
One of a barrister’s best qualities is their detailed and expert knowledge of the law. However, not all barristers are as gifted in expressing that knowledge in a manner which is easily understandable by their clients. Part of the role frequently fulfilled by solicitors is to interpret what barristers are saying for the benefit of their lay client.
Where there is no solicitor involved, there is a greater obligation on you to express yourself in a manner which meets the needs of your client.
In cases involving solicitors, the duty to keep a proper record of events is normally discharged by the solicitor. In the absence of a solicitor, that obligation falls on you, the barrister. This can create some issues.
In some of the cases we have investigated, there was some dispute about what had taken place during meetings between public access barristers and their clients. The subject of the disputes will vary: for instance, the manner of the barrister; the content and quality of the advice given; the topic of the meeting; and the information which was given and exchanged.
Our view about what has happened in such meetings can be critical to decisions about whether the service was appropriate, or if your work provided value for money. As a result, it is good practice to document meetings and keep hold of any notes that might give clarity. While we don’t necessarily consider the failure to keep contemporaneous records poor service in itself, the absence of record-keeping may be taken into account in the more general assessment of the adequacy and professionalism of the service overall.
Similar issues arise with the provision of advice. Specialist legal advice is one of the most common services offered by public access barristers. However, one of the things people frequently complain about is the adequacy and accuracy of that advice. When this happens, our investigations often turn on different accounts of what advice was actually provided. While there may be circumstances where oral advice only is sufficient, it will inevitably help with our investigations if you have provided at least a written summary of key points to the client and kept a copy for your records.
Try and resolve any issues before they get to the Ombudsman
We talked about good complaint handling in a recent edition of Counsel so I won’t go on about it too much here. Suffice to say, there is a regulatory obligation on you to inform clients of how they can make a complaint and how they can contact our scheme if they are unhappy with your response.
Where no solicitor has been involved in the case, it’s essential that you step up and meet this obligation. You can find lots of useful information on our website from effective complaints handling to good costs practice. And you can also sign up for one of our continuous professional development courses on complaint handling and earn yourself some CPD points while you’re at it.