Struck-off solicitor loses costs claim against client who thought he was still in practice

Retainer: draft was never formalised

A struck-off solicitor has seen his £4,500 costs claim against a client he represented in an employment tribunal disallowed because he failed to correct her belief that he was acting as a practising solicitor.

Robin Oliver has his own small regulated claims management business, Robin Oliver Legal, in Colchester and acted for a Mrs Gooding in her unsuccessful employment tribunal claim.

He was struck off as a solicitor “many years ago”, according to the ruling by Employment Judge JM Wade, sitting in Middlesbrough.

In his draft retainer – which was never finalised – Mr Oliver said he had two alternative payment regimes: one saw him charge £65 an hour, plus £10 an hour for travelling time and £0.45 per mile for using his own car; the other saw him take 35% of the amount recovered, plus reasonable expenses.

“I have the option to choose which of these limbs is the more beneficial for me,” he told her.

Crucially, at a later stage in the claim, Mrs Gooding wrote to Mr Oliver saying that she had not received meeting notes from her three disciplinary hearing and asked: “In your capacity as my solicitor are you able to request them?”

Mr Oliver did not correct her impression that he was a solicitor – an omission the judge specifically criticised – and she only became aware of it during the hearing, some months later, when the judge identified his capacity “as part of the general housekeeping”.

The claim was dismissed and Mr Oliver sought the balance of fees and disbursements said to be due from Mrs Gooding after payments on account, some £4,459. Mrs Gooding then applied for a wasted costs order against Mr Oliver.

Judge Wade said: “[Mr Oliver] told me that he always identifies himself as a consultant on attendance sheets at the tribunal, which is entirely proper: in doing so he informs both the tribunal and the ushers that he attends and represents not in the capacity of either counsel or solicitor.

“The subtlety of that information is not navigable to a lay client unless it is explicitly communicated. The use of the trade name ‘Robin Oliver Legal’ and the use of e-mail and text communication with a letterhead that repeats simply that trade name and regulation by the Claims Management Regulator, is not such as to convey to a lay client that there is a difference between the individual advisor’s capacity and that of a solicitor.”

This was “made worse” by the absence of any information about his capacity in the draft retainer letter and related e-mails.

The judge said: “Mrs Gooding confirmed her willingness to proceed on the terms as she had understood them. Implicit in those terms as she understood them, and as a result of the failure to make it clear that Mr Oliver did not act as a solicitor, was his capacity as her solicitor…

“I also take into account that the claimant’s circumstances included the wish to assert constructive dismissal, which often involves complex facts, and it is not a matter which lay people undertake with potential considerable cost, lightly.

“It was an unreasonable omission in my judgment for Mr Oliver not to make Mrs Gooding aware that he acted and practiced not in the capacity as a solicitor, nor regulated by the Solicitors Regulations Authority in these circumstances. I am satisfied that the omission… was a cause of the claimant incurring costs going forward.”

The “just order” was to disallow the balance of fees and disbursements due, he concluded.

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