ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00040398
Parties:
| Complainant | Respondent |
Parties | Tinka Zapryanova | Legal Services Regulatory Authority |
Representatives | In person. | James Daly BL instructed by Ms Maeve Griffin, Fieldfisher Solicitors. |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 | CA-00051683-001 | 14/07/2022 |
Date of Adjudication Hearing: 14/06/2023
Workplace Relations Commission Adjudication Officer: Jim Dolan
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 25 of the Equal Status Act, 2000, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The Complainant alleges that the Respondent discriminated against her on the basis of her nationality in the manner in which it dealt with a complaint made by her to the Respondent in respect of her former solicitor. The Respondent is the statutory authority responsible for receiving complaints in relation to legal practitioners.
This complaint was received by the Workplace Relations Commission on 14th July 2022. |
Summary of Complainant’s Case:
Introduction
Submissions
11. The provisions of s. 70 (12) LSRA 2015 required the Divisional Committee to give reasons for their determination. The decision from 2nd February 2022 did not address all the issues clearly stated in the Complaint submitted on 18th June 2021. The reasons stated by the Divisional Committee were vague and without supporting evidence.
12. If no fees were pursued and no payment requested, then why the Divisional Committee not address the issue about the legal file being withheld between 10th July 2020 and 7th February 2022 against the Complainant’s wishes without any legal grounds for doing so?
13. Under what legal grounds a counsel could instruct a solicitor how to proceed with a case in respect of a client, if none of them were authorized to act on behalf this client? Counsels are instructed by solicitors to work on legal cases, not vice versa. Members of the Committee being legal professionals were fully aware what the appropriate way to instruct a solicitor or counsel is. A ‘legal practitioner A’ was not authorised to act on the Complainant’s behalf after 10th July 2020. Therefore, he could not have been in position to instruct counsel to deal with the case in the first place and to obtain any instructions from the counsel subsequently. Both ‘legal practitioner A’ and the counsel had no right to represent me and to make a decision on my behalf behind the Complainant’s back. It was evident, that misrepresentation had taken place and the Divisional Committee chose to turn a ‘blind eye’ on this fact by considering the Complainant a ‘lower class’ citizen, unable to establish the wrongdoing committed.
14. If the Divisional Committee assumed the ‘legal practitioner A’ issued the Personal Injury Summons on 16th February 2021 out of good intentions, it is unexplainable why they ignored that he did not notify the Complainant immediately about the filing of the Personal Injury Summons, the record number given by the High Court and why he did not furnish the Complainant with a copy of the Personal Injury Summons.
15. It was the responsibility of Legal firm A and particularly of ‘legal practitioner A’, who dealt with the Complainant’s case, to notify her about the planned dissolution of Legal firm A and to return the legal file to the Complainant. The Divisional Committee knew about this responsibility as prescribed in the Solicitor’s Guide for Professional Conduct. However, this issue was not addressed in their decision from 2nd February 2022, because it would have proved the Complainant right. Obviously, the Divisional Committee was prejudiced and could not allow a foreign person to be justified, regardless of the fact that the same foreign person was unfairly treated.
Conclusion
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Summary of Respondent’s Case:
The Respondent is the statutory authority responsible for receiving complaints in relation to legal practitioners where the person making the complaint considers that: a. the legal services provided to the person making the complaint by the legal practitioner were or are of an inadequate standard, b. an amount of costs sought by the legal practitioner in respect of legal services provided to the person making the complaint by the legal practitioner was or is excessive, or c. an act or omission of the legal practitioner constitutes misconduct.
2. The Complainant alleges that the Respondent discriminated against her on the basis of her nationality in the manner in which it dealt with a complaint made by her to the Respondent in respect of her former solicitor. 3. The Respondent denies the allegation and submits that the Complainant has not proffered any evidence of discrimination such as would even establish prima facie case to answer. Background: The Complainant’s complaint against the Respondent 4. In her ES1 form received by the Respondent on the 1st of April 2022, the Complainant alleges that on the 2nd of February 2022 at 2 p.m., the Respondent discriminated against her on the basis of her national origin in the provision of a service to her.
5. The Complainant alleges that on the 2nd of February 2022, she was notified by email about a decision taken at a meeting of the Respondent’s Divisional Committee. She alleges that a Determination was not issued in respect of her complaint pursuant to the Legal Services Regulation Act, 2015. She alleges that the decision was prejudiced against her complaint, did not take into account all facts and evidence furnished, and ignored the way she was mistreated and intimidated by the solicitor against whom she made the complaint.
6. The Complainant alleges she “personally was unfairly treated, intimidated and discriminated by the Divisional Complaints Committee on 2nd February 2022, at their meeting at 2 pm on the grounds of my national origin.” The Complainant alleges that her complaint was determined to be admissible by the Respondent on the 15th of October 2021 in respect of nine allegations for insufficient services, fees and misconduct. She alleges that only four of these issues were addressed at the meeting of the 2nd of February 2022, which was provided to her on the 23rd of February 2022. She alleges that the minutes were not signed by the members of the Divisional Committee.
7. The Complainant alleges that she was not afforded the right to fair procedures by the Divisional Committee. She alleges that in making its decision, the Committee relied upon an email received from the solicitor acting for her former solicitor on the 2nd of February 2022 at 1:58 p.m. She alleges that she was not notified about this email or given the opportunity to give her position in respect of the statements made therein. She alleges that she was informed of the said email on the 9th of February 2022 by the Committee Secretariat, which notified her of the decision of the Divisional Committee. The said email stated as follows: “Dear Sirs, We acknowledge receipt of your email below and now wish to provide the following information for the assistance of the committee, 1. The Personal Injury Summons and PIAB Authorisation have been provided to the complainant by registered post and she has acknowledged receipt of same to this office via email dated 29th January 2022. 2. The Complainant has also been provided with her full file in this matter inclusive of files from two other solicitors who had also previously engaged her. These files were also sent by registered post in accordance with the wishes of the complainant and confirmation of receipt is awaited from the complainant. If we can be of any further assistance, please let us know. Kind regards”
8. The Complainant alleges that there was no proof of delivery of the documents allegedly posted to her. She alleges that the registered post-delivery receipt confirms that the package was posted after 5:30 p.m. on the 1st of February 2022, sorted in the Dublin Mail Centre at 23:58 p.m. on the 2nd of February 2022 and delivered a few days after that.
The Complainant alleges that the following facts were confirmed with relevant sufficient evidence, but were completely ignored by the Committee, who discriminated in favour of her former solicitor and ignored that she was mistreated: a) Her former solicitor commenced business as a sole legal practitioner on the13th of July 2020. A copy of his professional indemnity insurance was published on the Law Society’s public website. The Complainant alleges she was only informed of this on the 23rd of December 2020. b) Her former solicitor demanded from her on numerous occasions to pay legal costs to him without any lawful grounds for such payment, without a proper bill of costs being issued. c) The Complainant had to discharge a solicitor (her former solicitor’s new firm) whom she never appointed to represent her before the High Court. d) Her former solicitor misappropriated and withheld her legal file and personal legal documents without any lawful grounds and without her consent from the 13th of July 2022 to the 7th of February 2022, thereby preventing her proceeding with the litigation process and giving rise to a risk of the same being discontinued. e) The Personal Injuries Summons was issued in the High Court without her consent, and it is unclear whether it will be possible to amend it without damaging her best interests.
10. In the Request for Other Information in her ES1 form, the Complainant asked the following questions: a. Why was there no Determination issued in respect of Complaint 21/5353? b. Why was I not notified if the decision taken at the Divisional Committee meeting on 2nd February 2022 is the final outcome in respect of Complaint 21/5353? c. Why was not I notified if I could appeal the decision of the Divisional Committee and within what timeframe? 11. The Respondent replied comprehensively by letter dated the 28th of April 2022, which can be summarised as follows. 12. The Respondent advised that the Complaints Committee was established by the Respondent in accordance with section 69 of the Legal Services Regulation Act, 2015 and is independent of the Respondent in carrying out its functions. It advised that in accordance with section 69(5), it acts in divisions called Divisional Committees. It advised that section 70(1) provides that a Divisional Committee shall consider and investigate complaints referred to the Complaints Committee by the Respondent. It advised that complaints of misconduct against legal practitioners are referred by the Respondent to the Complaints Committee under section 68.
13. The Respondent advised that in accordance with its statutory duty under section 57 of the Act, it conducted a preliminary review of the Complainant’s complaint, which it described as a screening process to determine the admissibility or otherwise of a complaint by reference to specific statutory criteria for inadmissibility set out in section 58 of the Act. It advised that if none of those criteria is applicable, the complaint will be determined to be admissible. The Respondent confirmed that on the 15th of October 2021, the Complainant’s complaint was deemed to be admissible.
14. The Respondent advised that on foot of the complaint being deemed admissible, it was referred to the Complaints Committee for investigation under section 68 as it was a complaint of misconduct. It advised that in accordance with section 70(1), it was considered and investigated by the Divisional Committee assigned to it.
15. The Respondent advised that a meeting was held by the Divisional Committee on the 2nd of February 2022 to consider and investigate the Complainant’s complaint in accordance with the Act. It advised that the Divisional Committee had due regard to the information furnished to it in accordance with section 70, and on foot of its investigation, determined that the act or omission the subject of the complaint did not warrant the issuing of a direction or the taking of a measure in relation to the solicitor the subject of the complaint.
17. 16. The Respondent noted that the Complainant had not provided any basis for her claims of unfair treatment, intimidation and discrimination on the grounds of national origin at the meeting on 2nd of February 2022 and that each such claim was categorically denied. Further, the Respondent noted that as the Complainant was not in attendance at the meeting on 2nd of February, it was difficult to understand and respond to the Complainant’s claim of intimidation by the Divisional Committee on that date. 18. 19. 17. The Respondent noted that by letter dated the 9th of February 2022, the Complainant was notified of the determination and the reasons therefor. 20. 21. 18. The Respondent stated that the email of the 2nd of February 2022, which had been sent to the Divisional Committee, was sent to the Complainant for the sake of completeness. It stated that the email set out factual matters, which do not appear to be disputed by the Complainant. It stated that the email specifically stated that confirmation of receipt of the Complainant’s file was awaited from the Complainant. It stated that in any event, the reasons for the Divisional Committee’s determination do not refer to reliance having been placed on the contents of the email. 22. 23. 19. The Respondent noted that the Act does not provide for an appeal of the determination of the Divisional Committee. Further, it noted that whereas the Complainant was not informed of this in the letter to her dated the 9th of February 2022, on foot of further correspondence by her she was subsequently informed by the Secretary to the Complaints Committee by letter dated the 4th of April 2022 that whilst she does not have a right of appeal, she is entitled to complain to the Ombudsman.
20. The Respondent replied to the questions set out in the Request for Other Information in the Complainant’s ES1 form as follows. Question: Why was there no Determination issued in respect of Complaint 21/5353? Reply: “As set out above, a determination did issue in respect of your complaint. You were provided with that determination by letter of the Secretary of the Complaints Committee of the 9 February, 2022.”
Question: Why was I not notified if the decision taken at the Divisional Committee meeting on 2nd February 2022 is the final outcome in respect of Complaint 21/5353? Reply:“In the letter of the Secretary to the Complaints Committee to you of the 2 February 2022, you were informed that ‘The Complaints Committee has concluded its consideration of this complaint’. Accordingly, you were informed that the determination of the Divisional Committee was the final outcome of its investigation of the complaint lodged by you. You were also informed that “The Divisional Committee’s decision is without prejudice to the complainant’s legal rights.”
Question: Why was not I notified if I could appeal the decision of the Divisional Committee and within what timeframe? Reply:“The Act does not provide for an appeal of the determination of the Divisional Committee by the complainant under section 70(12) of the Act. Accordingly, there is no timeframe within which an appeal can be lodged. Although you were not informed of this in the letter to you of the 9 February 2022, on foot of further correspondence by you, you were subsequently informed by the Secretary to the Complaints Committee by letter of the 4 April 2022 that while you do not have a right of appeal, you are entitled to make a complaint to the Ombudsman.”
21. In her Complaint Form received by the WRC on the 14th of July 2022, the Complainant further complains that her name “is not an Irish name” and that she was therefore perceived by those investigating her complaint “as a ‘lower classcitizen’”. She complains that those investigating her complaint should have requested information from the Law Society/LSRA registers in respect of the date of cessation of her former solicitor’s former firm but either failed to do so or deliberately withheld it from her. She alleges that she furnished a screenshot from the Law Society’s website confirming that the professional indemnity insurance of her former solicitor’s new firm commenced from the 13th of July 2020, but that this evidence was ignored by the Divisional Committee. She alleges that those investigating her complaint advocated for her former solicitor by suggesting to her that she had the option to pay her former solicitor’s legal fees on a “without prejudice” basis should she need her file released quickly. She alleges that those investigating her complaint disregarded the fact that her former solicitor’s new firm were not properly authorised to act for her and that any payment to them would have subsequently been regarded as her approval for their past actions. She alleges that those investigating her complaint never advised her former solicitor that he had the option to apply for adjudication of legal fees by the Chief Legal Costs Adjudicator or the High Court. She alleges that had she followed the advice to pay her former solicitor’s fees on a “without prejudice” basis, her interest could have been “irrevocably damaged”. She alleges that those investigating her complaint failed to investigate the legal grounds upon which her former solicitor had the right to demand payment from her and if he had furnished a proper bill of costs. She alleges that those investigating her complaint failed to investigate the legal grounds giving her former solicitor the right to exercise a lien on her file. She alleges that those investigating her complaint failed to investigate whether her former solicitor’s new firm held an authorisation from her to act on her behalf. She alleges that the Respondent failed to act expeditiously in processing her complaint in circumstances where time was running out to serve her personal injuries proceedings. She alleges that she was forced to complain to the Ombudsman on the 21st of December 2021 in relation to the delay.
22. The Complainant alleges that the Respondent assisted her former solicitor and intentionally put her under tremendous pressure, revealing its unwillingness to grant her justice because of her national origin. Law: Burden of Proof 23. Section 3(1)(a) of the Equal Status Act, 2000 (as amended) provides that discrimination shall be taken to occur: “where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) or, if appropriate, subsection (3B), (in this Act referred to as the ‘discriminatory grounds’) which— (iv) exists, (ii) existed but no longer exists, (iii) may exist in the future, or (iv) is imputed to the person concerned”
24. Race/nationality is one of the grounds of discrimination specified in section 3(2).
25. Section 5(1) provides that a person shall not discriminate in the provision of a service, whether such provision is for consideration or otherwise.
26. Section 38A(1) provides that: “Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary.”
27. Accordingly, section 38A (1) provides that it is for the Complainant to establish a prima facie case sufficient to raise a presumption of discrimination. Only once this has occurred does the burden shift to the Respondent to disprove the claim.
28. In Mitchell v Southern Health Board [2001] 12 ELR 201, the Labour Court set out the process for determining when a Complainant has established a sufficient prima facie case such that the Respondent must meet the burden of disproving it, as follows: “the claimant must ‘establish facts’ from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment.”
29. Accordingly, before the burden can shift to the Respondent to disprove the claim, the tribunal determining the matter must be satisfied that: a. the Complainant has proven the primary facts upon which he/she relies in seeking to raise a presumption of discrimination, and b. the proven primary facts are such as give rise to a presumption of discrimination.
30. In the present case, the Complainant has not identified any fact as would indicate that the Respondent (a) was aware of her particular nationality, or (b) treated her different in any way on the basis of her nationality. The height of the Complainant’s claim is that her name “is not an Irish name” and that she was therefore perceived by those investigating her complaint “as a ‘lower class citizen’”. On that basis, the Complainant has failed to establish a prima facie case such as would give rise to a presumption of discrimination, and such as would shift the burden to the Respondent to disprove the claim. Further, the Complainant has not identified a comparator to demonstrate that she was treated less favourably than another person of a different nationality.
31. On the basis of the foregoing, the Respondent has no case to answer.
The Respondent’s statutory obligations 32. Without prejudice to the foregoing, the Respondent submits that it did not subject the Complainant to discrimination. 33. Section 51 of the Legal Services Regulation Act, 2015 provides that the Respondent is the statutory authority responsible for receiving complaints in relation to legal practitioners where the person making the complaint considers that: a. the legal services provided to the person making the complaint by the legal practitioner were or are of an inadequate standard, b. an amount of costs sought by the legal practitioner in respect of legal services provided to the person making the complaint by the legal practitioner was or is excessive, or c.an act or omission of the legal practitioner constitutes misconduct.
34. Section 57 of the Act provides that where such a complaint is received, the Respondent shall conduct a preliminary review of the complaint to determine whether or not it is admissible. The grounds upon which a complaint shall be inadmissible are set out in section 58 of the Act, and include instances of frivolous or vexatious complaints, complaints without substance or foundation, complaints relating to acts or omissions that are substantially the same acts or omissions as have been the subject of a previous complaint, and complaints that have been made after the limitation period for making the same has expired. Section 57(7) provides that if the Respondent determines a complaint to be inadmissible, it shall take no further action in relation to the complaint.
35. Sections 68 and 69 of the Act provide that the Respondent shall establish a Complaints Committee for the purpose of considering and investigating complaints relating to misconduct and shall refer such complaints to the Complaints Committee for that purpose. The Respondent established the Complaints Committee in 2020. Section 69 provides that the Complaints Committee shall act in divisions of three or five members (“Divisional Committee”).
36. Section 70(1) of the Act provides that where a complaint is referred to Divisional Committee, it shall consider and investigate the complaint. Section 70(2) provides that the Respondent shall furnish a copy of the complaint and any documents relating to it to the Divisional Committee, together with a summary of the complaint. Section 70(3) provides that the Divisional Committee shall ensure that the legal practitioner the subject of the complaint is furnished with the documentation relating to the complaint and shall request the legal practitioner to respond to the complaint. Section 70(6) provides, inter alia, that the Divisional Committee shall have due regard to the information furnished to it. Section 70(12) provides that where the Divisional Committee determines that the act or omission does not warrant the issuing of a direction under section 71(1)(a) or the taking of a measure under section 71(1)(b), it shall so advise the complainant and the legal practitioner in writing, giving reasons for the determination. Section 70(13) provides that the Divisional Committee shall make reasonable efforts to ensure that the complainant is kept informed of its decisions, that it acts expeditiously, and that it processes complaints in a timely manner.
37. Section 71 of the Act provides that following an investigation under section 70, where the Divisional Committee considers that the act or omission the subject of the complaint warrants the imposition of a sanction, it may issue a direction or take a measure in respect of the legal practitioner, as set out in section 71.
The process followed by the Respondent 38. The following is a summary of the process followed by the Respondent in processing the Complainant’s complaint and does not include each and every item of correspondence and documentation received due to the high volume thereof.
39. On the 18th of June 2021, the Complainant filed a complaint with the Respondent in respect of her former solicitor pursuant to section 51 of the Legal Services Regulation Act. Her complaint against her former solicitor related to inadequate legal services, misconduct and bills of costs. Her allegations included the following: a. Her former solicitor never advised her of the relevant limitation periods in respect of her personal injuries claim arising out of a road-traffic accident on the 13th of November 2017. b. Her former solicitor never advised her that she could avail of the services of an interpreter when attending medical examinations for the purposes of her claim. c. Her former solicitor never referred her for specialist medical examination or vocational assessment for the purposes of her claim. d. The firm in which her former solicitor was a partner was dissolved, which she said meant (i) a termination of the retainer, (ii) a requirement to provide her with reasonable notice and a bill of costs pursuant to section 152 of the Legal Services Regulation Act, 2015 for the period from the 24th of April 2019 to the 23rd of December 2020, and (iii) the return of her file to her upon payment. e. Her former solicitor transferred her file from the dissolved firm to his new firm without her formal authority. f. Her former solicitor issued High Court personal injuries proceedings on her behalf on the 16th of February 2021 without her instructions to do so and without her having reviewed the proceedings prior to issue. g. The Personal Injuries Summons issued on her behalf contained incorrect, incomplete and misleading assertions, which did not present her case truthfully and to her best advantage, and in particular, made no reference to her having suffered whiplash. h. The Complainant’s former solicitor emailed her the draft Personal Injuries Summons in respect of her claim on the 20th of January 2020. On the 16th of February 2021, the proceedings were issued on her behalf without her instructions to do so. On the 1st of April 2021, the Complainant emailed her former solicitor instructing him to represent her in the proceedings and enquiring as to the deadline for issuing the proceedings and what legal fees were due. On the 1st of April 2021, her former solicitor emailed her advising that the proceedings had been issued on the 16th of February following the direction of her former barrister, but she did not understand what she had been told, because matters were not explained to her in plain language. She reviewed and edited the draft Personal Injuries Summons that had been sent to her on the 20th of January 2020, and on the 16th of April 2021, she emailed the edited Summons to her former solicitor. On the 21st of April 2021, her former solicitor emailed her advising that the Summons could not be amended at that stage because it had already been issued but could be amended later if the barrister deemed it necessary. By email dated the 22nd of April 2021, the Complainant withdrew her instructions to act. i. Her former solicitor issued her with bills including work done by the former (dissolved) firm. The invoice did not include a VAT number, itemised statement of legal costs and details of time spent. She contended that her former solicitor was only entitled to charge her for work done between the 1st of April 2021 (when she instructed him to represent her) and the 21st of April 2021 (the day before she withdrew her instructions). She further contended that the manner in which the proceedings were drafted and issued meant that further legal costs would be required to amend the proceedings. j. Her former solicitor had exercised a lien on her file as a form of security for his fees since the 22nd of April 2021, despite not having issued a bill of costs for properly instructed and performed legal work complying with the requirements of section 152 of the Legal Services Regulation Act, 2015.
40.The Complainant’s former solicitor responded to the complaint on the 16th of July 2021. A copy of her former solicitor’s response (a copy of which was available at the hearing). The Complainant’s former solicitor also enclosed correspondence and documentation in support of his response.
41. The following is a summary of the Complainant’s former solicitor’s said response: a. The Complainant engaged her former solicitor in 2019 in relation to a personal injuries claim. She presented as intelligent and articulate, having pursued a career in financial and taxation matters. She was dealing with final exams and was very stressed and struggling with anxiety and related issues. She broke down in tears discussing her case at every meeting. b. The Complainant had previously engaged two separate firms of solicitors. c. The Complainant and her former solicitors dealt with the preliminary aspects of the claim (the PIAB process). Her former solicitor endeavoured to support and advise her as carefully and diligently as possible. d. Upon completion of the PIAB process, the Complainant instructed her former solicitor to engage a particular barrister to draft court proceedings. The barrister drafted High Court proceedings, which was sent to the Complainant on the 20th of January 2020. e. By email dated the 9th of March 2020, the Complainant indicated that she wanted to pause the litigation on health grounds. The Complainant ceased communicating with her former solicitor for many months, and did not respond to emails sent to her by her former solicitor from March to June 2020. f. As a result of the lack of contact from the Complainant, her former solicitor became increasingly concerned that her case would become statute-barred, and he kept in contact with the barrister. g. The Complainant’s former solicitor’s firm was dissolved by the partners in the second half of 2020, and each partner established their own independent firm. The Complainant was notified, and her former solicitor retained her file, and she eventually formally authorised this in 2021 when she recommenced communications. h. By the 12th of February 2021, the barrister was extremely concerned and advised the Complainant’s former solicitor to issue the High Court proceedings as soon as possible in order to preserve the case. The barrister advised that the former solicitor had a duty to preserve the case, which the barrister said would become statute-barred in March 2021. The proceedings were issued on the 16th of February 2021. The barrister also mentioned that the restructuring of guidelines on personal-injury awards was a factor in issuing the proceedings expeditiously, and that possible queries of the High Court Central Office and the limited access to the Central Office had to be factored into the time limits. i. On the 1st of April 2021, the Complainant recommenced email contact with her former solicitor, and her former solicitor replied on the same date. By email dated the 16th of April 2021, the Complainant instructed her former solicitor to issue the High Court proceedings, although they had already been issued but not served. j. The Complainant requested amendments to the High Court proceedings by email dated the 16th of April 2021. Her former solicitor contacted the barrister, who was reluctant to seek changes and advised that updated particulars of the Complainant’s injuries could be addressed upon receipt of updated medical reports in the normal way and without prejudice to the Complainant. k. On the 22nd of April 2021, the Complainant discharged her former solicitor. Her former solicitor responded on the same day, setting out the dilemma he and the barrister had faced and assuring her that they had acted in her best interests to preserve her claim and that the proceedings had not been served. The Complainant requested a breakdown of fees, which was furnished. l. The Complainant’s former solicitor offered a significant reduction in fees to resolve all matters, which was not accepted by the Complainant.
42. Further correspondence was received from the Complainant, in response to her former solicitor’s response, on the 30th of August 2021 and the 15th of September 2021, in which she disputed much of what her former solicitor had asserted and gave a different narrative. Copies of the said correspondence dated the 30th of August and the 15th of September 2021 were available at the hearing. The Complainant also enclosed documents and correspondence in support of her claim.
44. The Respondent then conducted a preliminary review of the complaint pursuant to section 57 of the Act.
45. By letter dated the 19th of October 2021, the Respondent informed the Complainant that following a preliminary review of her complaint, the complaint had been determined to be admissible. The letter advised that this simply meant that the complaint met the requirements set out in the Legal Services Regulation Act, 2015 for admissibility and that there were matters that required further consideration. The letter advised that because the complaint related to her former solicitor’s conduct, it would be referred to the Complaints Committee for its consideration, and the Committee Secretariat would write to her further in that regard.
46. By email dated the 15th of December 2021, the Complainant indicated that a major part of her complaint was that her former solicitor continued to hold her original documents in circumstances where she only had two further months (until the 15th of February 2022) within which to serve her personal injuries proceedings. She further complained that she could not pay her former solicitor’s bill because he had not issued a proper bill.
47. By letter dated the 21st of December 2021, the Respondent enclosed a copy of a proposal received from the Complainant’s former solicitor, dated 8th of December 2021, and enquired as to whether the Complainant would be satisfied to resolve the complaint on the basis of the proposal. The proposal was that her former solicitor would hand over her file in full and final settlement of all issues and would not seek payment of his fees due or expenses incurred.
48. By letter dated the 13th of January 2022, the Respondent informed the Complainant, inter alia, that her complaint had been referred to the Complaints Committee and that “it is a matter for the Complaints Committee to investigate your complaint”.
49. By email dated the Friday 14th of January 2022, the Complainant reiterated her allegations against her former solicitor, noted that her proceedings needed to be served by the 15th of February 2022, and requested the return of her file on Monday the 17th of January 2022.
50. By email dated the 17th of January 2022, the Complainant refused her former solicitor’s proposal for resolving the complaint, which had been sent to her on the 21st of December 2021. She requested the return of her file together with her former solicitor’s bill of costs. She followed up with the reasoning behind her request by email dated the 18th of January 2022.
51. By email dated the 18th of January 2022, the Complainant’s former solicitor proposed that he would accept an undertaking from the Complainant to deal with his costs in the future, at the conclusion of her personal injuries’ proceedings.
52. By letters dated the 19th of January 2022, the Respondent informed the Complainant and her former solicitor that the Divisional Committee would meet on the 2nd of February 2022 to consider the complaint.
53. In the course of the process of investigating the complaint, copies of correspondence and documentation running to more than 200 pages were submitted by the Complainant and her former solicitor, including the documentation submitted with the complaint form and thereafter, all of which was given due regard by the Committee in accordance with section 70(6) of the Legal Services Regulation Act, 2015. Additional correspondence was also received by the Committee Secretariat from the Complainant and her former solicitor in this period which included: a. Letter dated the 20th of January 2022 from the Complainant’s former solicitor. b. b. Email dated 27th of January from the Complainant acknowledging receipt of the above correspondence, enclosing further correspondence between the Complainant and the Complainant’s former solicitor with the following request “I will be grateful, if all the attached e-mails and documents are made available to the Complaints Committee in advance of their meeting on 2 February”. c. Letter dated the 28th of January 2022 from the solicitors acting for the Complainant’s former solicitor to the Committee Secretariat. d. Email dated 31st January 2022 from the Committee Secretariat to the solicitors acting for the Complainant’s former solicitor which indicated “For completeness I will make it available to Ms. Zapyranova as well as the Complaints Committee in advance of their meeting scheduled for Wednesday 2 February 2022” and subsequent email dated 31st January 2022 from the Committee Secretariat to the Complainant attaching the said correspondence. e. Email dated 2nd February 2022 at 13:58 from the solicitors acting for the Complainant’s former solicitor, advising that the Complainant’s documents and file had now been provided to her.
54. On the 2nd of February 2022 the Divisional Committee met and considered the complaint.
55. By letter dated the 9th of February 2022, the Respondent informed the Complainant and her former solicitor that, having considered all of the information provided, the Divisional Committee had not upheld the complaint. The said letter set out the reasons for this decision as follows: a. The issue on fees was moot because no fees were pursued. b. The Complainant’s former solicitor had received very strong advice from Counsel on how to proceed and followed that advice, which the Committee had deemed to be the act of a prudent solicitor. c. The proceedings as issued are less prejudicial to the Complainant than a failure to issue, and can, subject to obtaining leave from the court, be amended. d. The Complainant’s former solicitor made considerable efforts to contact her and there was a prolonged delay in the Complainant giving instructions to her solicitor.
56. A copy of the said letter of the 9th of February 2022 was made available at the hearing.
57. By email dated the 14th of February 2022, the Complainant advised that she was not satisfied with the decision of the Divisional Committee. She alleged that the Committee did not address various significant issues, including (i) the lawful grounds for her former solicitor withholding her file, thereby delaying the litigation process, (ii) whether her former solicitor was dishonest in his dealings with her, and (iii) whether her former solicitor took a decision on her behalf without proper authorisation. She requested a copy of the “official decision of the Divisional Committee”, the names of the members of the Divisional Committee and the procedure for appealing the decision.
58. By email dated the 23rd of February 2022, the Committee Secretariat provided the Complainant with a written copy of the Divisional Committee Minutes in relation to the Complainant’s Complaint, which included the Divisional Committee members names.
59. By emails dated the 23rd of February 2023 and the 29th of March 2022, the Complainant enquired of the Respondent as to whether the Divisional Committee had issued a determination in respect of her complaint and requested a signed and dated copy thereof.
60. By letter dated the 4th of April 2022, the Respondent advised that it is not the practice of the Complaints Committee to sign the minutes of their meetings, which take place remotely online, but that the minutes are formally approved by the Committee. The letter advised that the Act does not afford a right of appeal from the Committee’s decision, but that the Complainant was entitled to complain to the Ombudsman within 12 months if she is dissatisfied with the decision.
61. By email dated the 5th of April 2022, the Complainant’s local TD indicated that the Complainant had contacted her office with similar queries and passed those queries on to the Respondent. By email dated the 6th of April 2022, the Respondent furnished the Complainant’s local TD with similar responses to those that had been furnished to the Complainant.
62. By email dated the 20th of April 2022, the Complainant advised the Respondent of her extreme disappointment with the way her complaint was handled by the Respondent. She alleged that the Divisional Committee had ignored and disregarded the relevant facts and evidence and had failed to notify her of whether their decision was final and/or subject to appeal until the 4th of April 2022.
Submissions 63. The Respondent submits that it did not discriminate against the Complainant and did not treat her less favourably than any other person on the basis of her race/nationality or at all.
64. The process followed by the Respondent in dealing with the Complainant’s complaint against her former solicitor was in accordance with the process set out in the Legal Services Regulation Act, 2015 (as amended).
65. The process followed by the Respondent in dealing with the Complainant’s complaint is the same process as that followed by the Respondent in dealing with all complaints by all persons involving allegations of misconduct against a solicitor.
66. The Respondent conducted a preliminary review of the Complainant’s complaint in accordance with sections 57 and 58 the Act and deemed it to be admissible.
67. The Respondent referred the complaint to the Complaints Committee, and in accordance with section 69(5) of the Legal Services Regulation Act, 2015, a Divisional Committee of the Complaints Committee investigated the complaint in accordance with sections 68 and 69 of the Act.
68. The Divisional Committee considered and investigated the complaint in accordance with section 70 of the Act and had due regard to all information submitted to it, in accordance with section 70(6) of the Act.
69. Having considered and investigated the complaint, the Divisional Committee determined that the acts and omissions complained of did not warrant the making of a referral to the Legal Practitioners Disciplinary Tribunal (pursuant to section 71(7) or the imposition of a sanction against the Complainant’s former solicitor and advised the Complainant and her former solicitor of this decision in writing, giving reasons therefor, in accordance with section 70(12) of the Act.
70. Further, the Complainant’s contention that the Divisional Committee’s decision does not address the entirety of her complaint does not stand up to reason. The issues raised by the Complainant against her solicitor fell under the headings of misconduct and fees. In relation to misconduct, the Committee determined that the Complainant’s former solicitor’s conduct was that of a prudent solicitor. The Committee determined that the issue of fees was now moot because the solicitor was no longer seeking the payment of his fees. Even if the Committee’s decision had not addressed the entirety of her complaint, this would not of itself have constituted discrimination on the basis of race/nationality or at all.
71. Further, the Complainant’s contention that she was deprived of fair procedures on the basis of the Divisional Complainants Committee having received an email from the solicitor acting for her former solicitor on the afternoon of the meeting without her having had an opportunity to respond to it does not stand up to reason. The said email merely noted that the Complainant had now been furnished with her file. This was not a matter relevant to the decision of the Committee, which addressed her allegations in relation to misconduct and fees. Even if there had been any shortcoming in relation to fair procedures, this would not of itself have constituted discrimination on the basis of race/nationality or at all.
72. The Complainant may be dissatisfied with the decision of the Respondent, but this does not constitute discrimination. The height of her complaint is that her name “is not an Irish name” and that she was therefore perceived by those investigating her complaint “as a ‘lower class citizen’”. The complaint made is an outrageous and baseless attack on the reputations of professional people who carried out their functions impartially, in good faith and in accordance with law.
Conclusion
73. It is submitted that the Complainant has not met the threshold of a prima facie case giving rise to a presumption of discrimination such that the burden of proof shifts to the Respondent to disprove the claim. On that basis, the complaint should be dismissed.
74. Without prejudice to the foregoing, the process followed by the Respondent clearly shows that the Complainant was not subjected to discrimination. The Respondent denies the claim in its entirety.
75. The Respondent reserves the right to adduce further documentation and evidence in support of its position. |
Findings and Conclusions:
In considering this complaint my task is not to re-examine the work completed by the Respondent, it is to look at this work and decide if the process followed and conclusions reached were in any way were influenced by the fact that the Complainant is of a different national origin. Equality law is based on comparison; how one person is treated by comparison to another who does not possess the relevant protected characteristic. It is therefore necessary to ground a claim of discrimination by pointing to how another person, not having the protected characteristic relied upon, was, is or would be treated in a comparable situation. This is referred to as a comparator. A comparator is an evidential tool. They are intended to contrast the treatment of the complainant in respect to the matter complained of, with that of another person in similar circumstances who does not have the protected characteristic relied upon. In many cases the comparator will be an actual person, but they need not be. It is permissible to select a hypothetical comparator. A hypothetical comparator can be constructed by asking why the Complainant was treated as they were. If the treatment complained of was because of a protected characteristic, a hypothetical comparator is a supposed person who does not have that characteristic but who is otherwise in the same position as the Complainant. In the instant case the Complainant did not identify a comparator. The Representative for the Respondent highlighted section 38A (1) of the Equal Status Act, this reads: “Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary.”
In Mitchell v Southern Health Board [2001] 12 ELR 201, the Labour Court set out the process for determining when a Complainant has established a sufficient prima facie case such that the Respondent must meet the burden of disproving it, as follows: “the claimant must ‘establish facts’ from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment.”
In Melbury Developments Ltd v Valpeters [2010] ELR 64 the Labour Court stated that “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.
In the instant case the accusations made by the Complainant are assertions and are not supported by any evidence. I have carefully considered the submissions from both parties and also the verbal evidence. I am satisfied that the process followed by the Respondent was the correct and normal process that the Respondent would utilise in dealing with complaints. It is for this reason that I now must find that the complaint as presented is not well founded and therefore fails.
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Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 25 of the Equal Status Acts, 2000 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.
I have carefully considered the submissions from both parties and also the verbal evidence. I am satisfied that the process followed by the Respondent was the correct and normal process that the Respondent would utilise in dealing with complaints. It is for this reason that I now must find that the complaint as presented is not well founded and therefore fails.
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Dated: 23-10-2023
Workplace Relations Commission Adjudication Officer: Jim Dolan
Key Words:
Equal Status Act 2000. |