Solicitors and false statements when responding to pre-action protocol letters

[LRanger]

Hello everyone,

I am extremely concerned that some solicitors are getting away with murder when responding to pre-action protocol letters. I believe that there are occasions where it is reasonable for the solicitors in question to know that what they have stated in letters of this kind is false and/or misleading, and I suspect some of them know that they are being brazenly dishonest. I appreciate the intention to act in the best interests of their clients, but, in my opinion, that should not give them licence to make false statements in response to pre-action protocol letters. I understand that the Solicitors Regulation Authority (SRA) considers dishonesty as an act of serious professional misconduct, but I note that there is very little stated in this regard in their Code of Conduct for Solicitors, RELs, RFLs and RSLs other than as follows:

"1.4 You do not mislead or attempt to mislead your clients, the court or others, either by your own acts or omissions or allowing or being complicit in the acts or omissions of others (including
your client)."

Could anyone perhaps kindly shed some light on when the line gets crossed? I appreciate that a person who knowingly makes a false statement in a pre-action protocol letter or other document prepared in anticipation of legal proceedings may be subject to proceedings for contempt of court, but I am interested in exploring this from purely a professional misconduct perspective.

Sincere thanks.

[LRanger]

It seems the test is set out in Twinsectra Ltd v Yardley and Others [2002] UKHL 12, in particular the test set out by Lord Hutton at paragraph 27 of the Judgment in which it is stated as follows:

"Thirdly, there is a standard which combines an objective test and a subjective test, and which requires that before there can be a finding of dishonesty it must be established that the defendant's conduct was dishonest by the ordinary standards of reasonable and honest people and that he himself realised that by those standards his conduct was dishonest."

It also seems that one has to prove dishonesty beyond reasonable doubt (the criminal burden of proof), which is perhaps excessive.

[atticus]

What causes you to have this concern? Can you please give examples.

Speaking for myself, I would not make an assertion in correspondence on behalf of a client that I did not believe could be supported.

[LRanger]

What causes you to have this concern? Can you please give examples.

Speaking for myself, I would not make an assertion in correspondence on behalf of a client that I did not believe could be supported.

In my honest opinion, one recent example of this, although perhaps not an obvious one, is in relation to a proposed judicial review challenge against the Local Government and Social Care Ombudsman ("the Ombudsman") in relation to a social housing matter. Two of the issues were whether it was, in the circumstances of that case, congruent with the Ombudsman's guidance ("the guidance") titled Medical assessments for housing applications for the Council in question to automatically accept the advice provided to it by its independent medical advisers, regardless of whether that independent medical adviser considered all the evidence or not, and whether the Council itself considered all the evidence. The guidance states as follows:

"independence: councils should make their own decisions about medical needs, taking into account all the evidence, and not automatically accept the view of the independent medical adviser"

And as follows:

"When considering their request, councils may seek advice from external independent medical advisers or ask their own occupational therapist (OT) to carry out an assessment.

But the decision about whether the applicant qualifies for priority, and at what level, is for the council to make based on its allocation scheme and all the evidence provided."

And as follows:

"made its own decision and made this clear in its decision letter. For example, it should not be saying "its medical adviser has decided". The council may set out the independent medical adviser's view, but we would expect it to go on to explain its reasons for the decision reached"

So, in short, the guidance makes plain that a) independent medical advisers can advise the Council, but that the Council should make the decision and b) the Council should consider and weigh up all the evidence, and not just defer to the advice sought from its independent medical adviser, who may or may not have considered all the evidence.

When I challenged this, the response that I got back from the respective solicitors was as follows:

"...the criticism that the Ombudsman should have considered whether the Council automatically accepted the Medical Advisor's opinion is a mischaracterisation of the Ombudsman's Good Practice Guidance. The Ombudsman's Good Practice Guidance does not prohibit local authorities from relying upon independent medical advice; rather when read fairly the publication makes clear that the expectation is that authorities will consider all relevant evidence:

"we expect to see the council has considered all the medical evidence the applicant provided, as well as the independent medical adviser or OT's assessment"

"a common fault we find is where councils simply accept the view of the independent medical adviser and fail to record or explain how they weighed any conflcting evidence from the health professionals involved with the family, and their own medical advisers."

The counterargument was then that because the Council's independent medical adviser (who was not employed by the Council in this case, so therefore cannot be reasonably regarded as 'the Council') allegedly considered all the evidence shortly before the Council automatically accepted it, on that basis, there was no departure from the guidance. I consider that statement brazenly disingenuous and arguably deceitful, not least because a) it is plain that that arrangement essentially means that the independent medical adviser was, for all intents and purposes, the decision-maker and b) the Council itself did not consider all the evidence in accordance with the guidance or at all; rather, its independent medical adviser allegedly did. I find it very hard to believe that the respective solicitors did not know that that their statements made in that regard were not false and/or misleading.

It then gets worse, when the Ombudsman made the decision I challenged on this issue, it was made plain that but for the fact that I was rehoused, the Ombudsman would have asked the respective Council to make a fresh decision, which, in the circumstances, implies it was accepted by the Ombudsman that there was a departure of the guidance of the kind set out above, as the other faults identified by the Ombudsman would not have resulted in the Ombudsman taking any further action in this respect. When I pointed this out, the respective solicitors argued that there were no other faults identified by the Ombudsman in this case other than the faults identified that would not have resulted in the Ombudsman taking any further action, which, of course, begs the question as what was to be reconsidered by the Council but for that fact that I was rehoused. Again, I consider that statement brazenly disingenuous and arguably deceitful and/or misleading.

[HariSeldon]

Your post is not very clear, can you clarify explicitly which statement is false and is evidence of the solicitor being brazenly dishonest?

[LRanger]

Your post is not very clear, can you clarify explicitly which statement is false and is evidence of the solicitor being brazenly dishonest?

Essentially, in my honest opinion, it was reasonable for the respective solicitors to know that the statement they made in terms of the respective Council's conduct not being a departure from the guidance I have alluded to was false. Their statement in this regard were essentially sophistry. I have similar concerns relating to the fact that the Ombudsman made an implied finding of fault in respect to the same, and, based on the facts, it was reasonable for the respective solicitors to know that their statement in that regard was false. I honestly believe that when one considers both those issues, it is reasonable to conclude that the conduct of the respective solicitors was dishonest. If one makes a statement that one knows is false, then one is, for all intents and purposes, being dishonest. As I say, I appreciate the intention solicitors have to act in the best interests of their clients, but, in my opinion, that should not give them licence to be dishonest. At what point is a line crossed? Can sophistry amount to dishonesty, and should it? I suspect solicitors would argue that it shouldn't be given a fear of being struck off for making routine legal "arguments", and I suspect the SRA could well take the same view. That's what I am grappling with.

[HariSeldon]

To be blunt, your response is very wishy-washy - "essentially", "alluded to", "implied", "all intents and purposes".

If you are unable or unwilling to quote verbatim the statement that is false and/or is evidence of the solicitor being brazenly dishonest then I cannot see you getting the answers you want from the SRA or for that matter from anyone here either.

[LRanger]

To be blunt, your response is very wishy-washy - "essentially", "alluded to", "implied", "all intents and purposes".

If you are unable or unwilling to quote verbatim the statement that is false and/or is evidence of the solicitor being brazenly dishonest then I cannot see you getting the answers you want from the SRA or for that matter from anyone here either.

I did make plain in post 4 that the dishonesty was not obvious, but that's not to say that, in my honest opinion, that there was no dishonesty of the kind described. I suggest you have another read of my posts.

[atticus]

I have continued to watch this thread, reading every post carefully. Notwithstanding post #8, I agree with HariSeldon.

LRanger: you may have an opinion that is honestly held, but you have not helped us to understand what has been said by solicitors that is false and dishonest. If you cannot explain this, then it will be difficult to take the discussion further. Are you able to take the statements in question apart, demonstrating the sophistry?

[LRanger]

I have continued to watch this thread, reading every post carefully. Notwithstanding post #8, I agree with HariSeldon.

LRanger: you may have an opinion that is honestly held, but you have not helped us to understand what has been said by solicitors that is false and dishonest. If you cannot explain this, then it will be difficult to take the discussion further. Are you able to take the statements in question apart, demonstrating the sophistry?

I hear you. It's somewhat difficult, though, to do without going into a forensic analysis, which I will nonetheless try to do, but in short, I would argue that, in my honest opinion, it was dishonest for the respective solicitors to state, quite brazenly, that, in the circumstances, there was no departure from the guidance I have alluded to. In my honest opinion, at the very least, I think it would be right to be very suspicious of dishonest conduct in this case.

In terms of background:

I applied to join the respective Council's housing register, which operates on a points system. According to the respective Council's Housing Register and Allocation Policy, points are awarded depending on an applicant's circumstances, with the total points allocated indicating the housing need.

The respective Housing Register and Allocation Policy provides that if there are medical circumstances that are affected by the applicant's current accommodation, and need to be taken into account, then the applicant can complete a medical form as part of their housing application, whilst submitting medical evidence in support of the same, such as letters from their GP and consultant. The respective Council then forward that information on to their independent medical advisor, who should provide no more than advice in response. However, this particular Council asks its independent medical advisor to recommend how many point to award using a pro forma, and any response it gets it automatically accepts, even by its own admission, and then it simply relays that decision, which is essentially the decision of its independent medical advisor, to the applicant. Indeed, in response to a complaint I raised in this regard, the Council made plain as follows:

"If the independent Medical Advisor provides advice of the basis of their knowledge as a doctor, while the decision to award additional points is [the Council's], the Housing Options Team will accept the advice of the independent doctor."

With this concern in mind, amongst others, I escalated my complaint to the Local Government and Social Care Ombudsman ("the Ombudsman"), who, in my honest opinion, bent over backwards for the Council. In my honest opinion, I also do not accept that the Ombudsman is as impartial as it purports to be, and I note that the reasons it provides are, in my honest opinion, deliberately extremely brief, and in some cases not provided at all, but I won't digress.

The Ombudsman decided as follows:

"The Council said when considering this complaint, they asked the medical advisor if the second letter from the doctor would have meant the advisor would have recommended more medical points. The medical advisor said the additional medical detail on the second letter would not have altered the decision.

Mr X has now moved to a property in another Council's area.

Mr X has referred to the Ombudsman's guidance on medical assessments for housing applications. The guidance says that the Council should consider all the evidence provided by the complainant and make decisions, without delay.

The Council was at fault, it failed to consider a letter from Mr X's doctor and delayed reviewing its decision on Mr X's medical points. So, I now have to consider what injustice this caused to Mr X. The Council has said the delay in increasing Mr X's medical points after the review did not mean he missed out on an offer of housing. And, the second letter from Mr X's doctor would not have changed the decision on his medical points. So, the outcome has not changed for Mr X.

Mr X has explained that he now has housing in another Council's area so there is no reason for the Council to reconsider his medical housing points. Mr X says he has been distressed and caused outrage by the delay and the Council has offered a symbolic payment of £50 for this injustice.

A remedy to a complaint about failure to properly consider evidence would usually be to ask the Council to review its decision, to ensure all the evidence was properly considered. However, as Mr X has moved and no longer requires housing in the Council's area this is not needed. From the information I have, it seems unlikely Mr X has missed offers of housing due to the delay, so the remedy already offered by the Council of an apology and symbolic payment is in line with our guidance."

The Ombudsman's statement that the "medical advisor said the additional medical detail on the second letter would not have altered the decision" is quite remarkable, as it essentially states that the Ombudsman accepts that the respective medical advisor was making the decisions, as indeed was the case.

As set out above, the Ombudsman then states that, but for the fact that I was rehoused, that the Ombudsman would have asked the Council to review its decision because, of course, the Council departed from the guidance for obvious reasons.

The Ombudsman further stated as follows in a separate letter in response to my criticisms of its draft decision:

"I would normally ask the Council to reassess your housing application but in this case, as you are now rehoused in another Council's area this would not serve any purpose."

Quite clearly, in my honest opinion and in terms of the Ombudsman findings, there was an abdication of decision-making responsibility (all the evidence was not properly considered by the Council), which would have needed addressing in terms of a review but for the fact that I had been rehoused. In the circumstances of this particular case, that could only have been a departure from the guidance, which makes plain as follows:

"When considering their request, councils may seek advice from external independent medical advisers or ask their own occupational therapist (OT) to carry out an assessment.

But the decision about whether the applicant qualifies for priority, and at what level, is for the council to make based on its allocation scheme and all the evidence provided."

It could not be any clearer that the Council should make the decision, and it should have regard for all relevant information when it does so (congruent with public law principles). That, of course, includes all the medical evidence the applicant submits.

Consequently, I served a letter before claim on the Ombudsman on judicial review grounds.

In response to my letter before claim, the respective solicitors stated as follows:

"...the criticism that the Ombudsman should have considered whether the Council automatically accepted the Medical Advisor's opinion is a mischaracterisation of the Ombudsman's Good Practice Guidance. The Ombudsman's Good Practice Guidance does not prohibit local authorities from relying upon independent medical advice; rather when read fairly the publication makes clear that the expectation is that authorities will consider all relevant evidence:

"we expect to see the council has considered all the medical evidence the applicant provided, as well as the independent medical adviser or OT's assessment"

"a common fault we find is where councils simply accept the view of the independent medical adviser and fail to record or explain how they weighed any conflicting evidence from the health professionals involved with the family, and their own medical advisers."

The material before the Ombudsman demonstrated that the Medical Advisor considered the evidence provided by Dr [X], and the Council in turn considered the Medical Advisor's recommendations within the framework of the Housing Register and Allocation Policy. Although the Council only considered one of Dr [X]'s letters when making the initial Medical Points Award due to the oversight, it has also been clear that this would not have changed the Medical Points Award. The Ombudsman was entitled to conclude that, notwithstanding the identified fault, this did not amount to any abdication of decision-making responsibility alleged by you. You also had to opportunity to submit further evidence and indeed later received a points uplift for other evidence."

In essence, the respective solicitors stated that provided that the respective Council's independent medical adviser has considered all the evidence (notwithstanding the fact that they were not even employed by the Council), there has been no departure from the guidance in terms of the respective Council automatically accepting the advice of its independent medical adviser. That, in my honest opinion, is sophistry, if not brazen dishonesty. The guidance makes plain that the Council should make the decision regardless (the Council automatically accepting its independent medical adviser's advice is, of course, not making the decision itself, notwithstanding the fact that the independent medical adviser allegedly considered all the evidence), and it should consider all information relevant to that decision, which, of course, is not limited to any advice provided to it by its independent medical adviser.

Moreover, I consider the following statement to be false:

"Although the Council only considered one of Dr [X]'s letters when making the initial Medical Points Award due to the oversight, it has also been clear that this would not have changed the Medical Points Award."

In truth, it was not the Council that considered the respective letter, but rather its independent medical adviser, the distinction being obviously very important. Similarly, in my honest opinion, the respective solicitors acts of referring to the Council's independent medical adviser as "the Council" more generally, and in the way that it did, was also a form of sophistry. It essentially states that if the Council's independent medical adviser has considered medical evidence, it follows that the Council itself has considered the same when making the decision. That statement, is, of course, false. I also find it very hard to accept that the respective solicitors did not know that that statement was false.

In my honest opinion, it then gets worse, as when I asked the respective solicitors for a fuller explanation in regards to the basis on which the Ombudsman would have asked the Council to review my housing application had I not been rehoused, the response that I got back was as follows:

"We have considered your concern regarding the statement in the Final Decision that the Ombudsman would ordinarily have recommended a reassessment of your housing application had you remained within the Council's area. You have asked on what basis the Ombudsman would have asked the Council to reassess your housing application and set out every fault identified in this respect. The Final Decision has already explained the faults identified by the Ombudsman, specifically at paragraph 15 the Ombudsman found "the Council was at fault, it failed to consider a letter from Mr X's doctor and delayed reviewing its decision on Mr X's medical points." The Ombudsman then went on to explain why, in the circumstances of your case, a reassessment was not recommended. The reference to what would ordinarily occur in another case was not intended to suggest there were additional findings of fault beyond those set out in the Final Decision. Rather, it reflected the Ombudsman's view that where relevant information had not been properly considered during a housing assessment, a fresh assessment will often be an appropriate remedy depending on the individual's wider circumstances. The Ombudsman's findings are fully set out in the Final Decision and no further clarification is required."

In my honest opinion, that statement was misleading, if not dishonest. It was plain that the Ombudsman took the view that not all relevant information was considered by the Council in this case, in accordance with the guidance, but went on to take the view that a review was not necessary given that I had been rehoused in this case.

I see the SRA provides more guidance here, but that leaves a lot to be desired in terms of when dishonesty is made out in cases such as this:

https://www.sra.org.uk/solicitors/gu...al-dishonesty/

Arguing that the respective solicitors were acting in a manner that was knowingly misleading may be a stronger argument, or perhaps the following requirement applies:

"You only make assertions or put forward statements, representations or submissions to the court or others which are properly arguable."

Incidentally, I subsequently complained to the Ombudsman stating that, if there was any truth in what their solicitors have stated, the guidance could be clearer, so I proposed making it clearer, but they cynically responded by stating that they are refusing to accept that as a complaint.