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Immigration firm wins judicial review against Law Society

18 May 2010

Immigration specialists Malik Law Chambers in Bethnal Green, East London, have won a judicial review against the Law Society.

The firm accused the society of failing to learn lessons from Lord Ouseley’s review in 2008, which found that the society could be “open to the charge of institutional racism” if it did not improve its record on diversity and equality.

Giving judgment in R (on the application of Malik Law Chambers Solicitors) v The Law Society [2010] EWHC 981(Admin), Mr Justice Saunders said the dispute began when an immigration client, Thandie Tobo, failed to pay a £600 bill for legal work, and instead paid only an initial £100.

The firm retaliated by exercising a lien over her documents, including her passport, meaning that Tobo was unable to claim benefits on behalf of herself or her three children.

Tobo complained to the Legal Complaints Service, the court heard. A caseworker rejected her complaint and told her that the firm was entitled to exercise the lien.

However, after Tobo submitted further information, the file was reopened and allocated to an adjudicator at the LCS.

The adjudicator found that Malik Law Chambers had provided inadequate professional services and ordered the firm to release the documents and pay Tobo just over £7,500 in compensation.

Mr Justice Saunders said the adjudicator accepted that the firm was entitled to exercise the lien, but “decided that it was unreasonable in all the circumstances of the case for the claimant to exercise a lien on the passports and the other documents that the interested party needed to make her claim for benefit”.

Saunders J went on: “In my judgment, there may well be circumstances where it would be unreasonable to exercise a lien, even bearing in mind that the more valuable the property withheld then the more likely it is that payment would be obtained.

“The mere fact that it is legal for the solicitor to exercise a lien does not mean that it cannot be unreasonable to do so nor is there any reason why the defendant should not regulate those occasions.”

Despite this, Saunders J said: “It seems to me that it was incumbent on the adjudicator to indicate when it became unreasonable for the claimant to exercise a lien over the documents and why.”

He quashed the adjudicator’s decision. Imtiaz Ali, partner at Malik Law Chambers, said: “The Law Society has yet again laid itself open to the charge of institutional racism.

“The present attitude of the Law Society displays a patent failure to recognise the concerns expressed by the former chairman of the Commission of Racial Equality, Lord Ouseley.

“Lord Ouseley, in his review published in August 2008, reminded the Law Society that urgent change was needed to policy, procedure and practice if the authority that regulates the solicitors’ profession was to avoid a charge of institutional racism.”

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