England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(Mr Justice Stanley Burnton)

		Royal Courts of Justice Strand London WC2 Monday 22nd October, 2001

1. LORD JUSTICE RIX: This is an application for permission to appeal from a judgment of Stanley Burnton J of 13th August 2001. He refused the applicant, Mr Murray, permission to apply for judicial review in proceedings which he seeks to bring against the Parliamentary Commissioner for Administration - or the Ombudsman, as he is colloquially known.
2. Mr Murray's complaints to or against the Ombudsman have a history of many years. But it will suffice for today's purposes to say that Mr Murray's current seeking of permission for judicial review in these proceedings arises out of earlier proceedings involving a complaint to the Ombudsman about the DTI; proceedings which concluded in judgments and orders for costs against Mr Murray, before both the Divisional Court and the Court of Appeal. The Court of Appeal's judgment in those earlier proceedings was given in May 1999.
3. Mr Murray lodged his petition to the House of Lords against the decision of the Court of Appeal in those earlier proceedings on 9th November 1999. Following an indication from the Judicial Office of the House of Lords on 2nd November 2000 that in the light of the decision in the Eastaway case it had been established (or one might say re-established) that a petition to the House of Lords in such circumstances was not competent - that is to say, was not admissible for presentation - Mr Murray wished to withdraw his petition, as he was invited by the Judicial Office to do. He was informed by the Judicial Office about House of Lords' direction 45.1, which said that a petition for leave to appeal could be withdrawn:

"... stating that the parties to the petition have agreed how the costs should be settled. The respondents should notify the Judicial Office of their agreement."

4. That led Mr Murray to write, on 13th November 2000, to the Treasury Solicitor - who had been representing the Ombudsman in those previous proceeding and was continuing to represent them in connection with Mr Murray's petition to the House of Lords - to inform them that he was ready to accede to the invitation to withdraw his petition to the House of Lords, subject to direction 45.1, which he drew to the Treasury Solicitor's attention. He pointed out that his financial circumstances were such that he was unable to make payment of any costs, other than to bear his own. He invited comment:

"... on any costs which the Treasury Solicitor may have incurred in the same prospective proceedings."

5. It may be that Mr Murray's letter was enquiring only about any costs incurred in the House of Lords, but it appears from subsequent correspondence that the Treasury Solicitor and the Ombudsman - to whom the Treasury Solicitor referred about Mr Murray's request of 13th November - took his request as covering all the costs incurred to date in those earlier proceedings.
6. On 30th November the Treasury Solicitor replied saying that he was seeking instructions on the question of costs, but:

"I do not imagine that the Parliamentary Commissioner will seek his costs from you in view of your financial circumstances."

7. So that was a fairly prompt indication that Mr Murray could rest easy in his mind on the question of costs.
8. There followed further prompts from Mr Murray to the Treasury Solicitor. On 8th January 2001 the Treasury Solicitor wrote again to acknowledge the recent correspondence and to say:

"I am still waiting to hear from the Parliamentary Commissioner's office about the costs of your litigation, but I have written again today asking for a response and I hope to be in a position to write to you again by the end of the week."

9. That promise was maintained. Three days letter, on 11th January, the Treasury Solicitor wrote again to Mr Murray to tell him that he would be pleased to know that the Treasury Solicitor now had instructions that, due to Mr Murray's financial circumstances, the Ombudsman was "prepared to write-off the costs of this action and not recover them from you."
10. It is, as I say, plain from that letter, but also from further correspondence that I have seen as a result of Mr Murray's complaint to the Ombudsman about delay in responding to his enquiry of 13th November that it was considered that Mr Murray was concerned, not merely about the very small costs that the Ombudsman might have incurred in connection with the filing of the petition to the House of Lords, but the much larger costs which had already been ordered against him in the proceedings to that date.
11. The Treasury Solicitor's response of 11th January led almost immediately to a complaint by Mr Murray of 15th January to his local Member of Parliament about the delay by the Treasury Solicitor in dealing with the enquiry of 13th November. That letter enclosed the standard form, which Mr Murray filled up, headed "Complaint for referral to the Parliamentary Ombudsman".
12. Both the letter of 15th January to his MP and the complaint for referral form enclosed with it indicate that although the complaint is made against the Treasury Solicitor for delay in the correspondence which I have described, the real object of complaint were those who had instructed the Treasury Solicitor - that is to say the Ombudsman - on the basis that the delay had been caused by the Ombudsman. That was made clear in paragraph 2 of the letter to the MP and in answer to section 6 of the complaint for referral form.
13. The Ombudsman replied to the complaint for referral by a letter of 14th February 2001; and it is against the decision contained in that letter that Mr Murray has commenced the present proceedings in which he, again, seeks judicial review of the Ombudsman's conduct. The letter of 14th February goes into the background which I have described and says that the delay between 13th November to 11th January, a period including Christmas and the New Year, did not seem excessive, given the nature of the decision to be made about the writing-off of the costs of Mr Murray's litigation. It pointed out that the scale of the costs was not trivial, and it was thought that the time taken to make the decision was not unreasonable in the circumstances.
14. But it was also pointed out that the complaint related to alleged maladministration on the part of the Ombudsman, as well as the Treasury Solicitor, and the letter pointed out that under the Parliamentary Commissioner Act 1967 the Ombudsman did not have power to investigate alleged maladministration occurring in his own office: see Schedule 3 to the Act.
15. It is that decision letter of which, as I say, Mr Murray seeks permission to apply for judicial review. His application for judicial review went first of all before Forbes J on paper and then was renewed before Stanley Burnton J in an oral hearing.
16. In his judgment, Stanley Burnton J approved the reasoning of Forbes J. He pointed out that if the complaint of maladministration was really against the Ombudsman himself, as it appears to me at root to be, the Ombudsman does not have power to investigate himself. But if on the other hand, as it is also formally put, it is a complaint against the Treasury Solicitor, then again there is no power for the Ombudsman to investigate that, since Schedule 3 to the Act also excludes "the conduct of civil ... proceedings" before any court: see paragraph 6 of Schedule 3.
17. Stanley Burnton J was presses, as again today I have been pressed, with Mr Murray's submission that so far at any rate as the costs of his petition to the House of Lords were concerned, his enquiry to the Treasury Solicitor did not arise in the conduct of proceedings because he was informed by the House of Lords itself - and it was on that basis that he withdrew his petition, as he ultimately did - that his petition was incompetent and inadmissible to put before the House of Lords. Stanley Burnton J, however, reasoned (and I have to say that I agree with him) that even if those proceedings were abortive because they were incompetent, nevertheless they were proceedings within the meaning of Schedule 3 to the 1967 Act. There are often occasions on which proceedings are commenced and have to be dealt with, and sometimes very heavy costs incurred, even though at the end of the day it emerges that the proceedings are incompetent and the court has no jurisdiction to deal with them.
18. Therefore, I agree with Stanley Burnton J on that point. In my judgment there is no real prospect of any success on appeal on that point.
19. It follows that this application must fail. However, let me just say, because Mr Murray has raised two other points, that if it were otherwise and these proceedings could survive, it would be necessary for me to take into account that what these proceedings are about is what is said to be an unreasonable delay of up to eight weeks in dealing with an enquiry about £121 of costs which were written off, in circumstances where Mr Murray has been caused no prejudice, but brings these proceedings essentially for the sake of an apology for what he considers to be maladministration. He has in fact already received an apology from the Ombudsman - see his letter of 14th May 2001 - and Mr Murray's only response to that is that he has not received an apology from the Treasury Solicitor itself.
20. Since, however, on investigation the real substance of Mr Murray's complaint is that the Ombudsman, from whom of course the Treasury Solicitor had to seek instructions, did not respond to the Treasury Solicitor with what Mr Murray considers sufficient speed, he has had, in effect, an apology from the person from whom he really seeks it and against whose conduct he really complains.
21. Finally, Mr Murray says that there is a bias or the appearance of bias, or the possibility of a conflict of interest, in the fact that in these proceedings again the Ombudsman, as in the previous proceedings, has instructed the Treasury Solicitor to act for it. Mr Murray complains that the Treasury Solicitor acted as the Ombudsman's solicitor in the previous proceedings concerning his complaint against the DTI. He complains, in effect, that where the Treasury Solicitor's conduct is in question it would be wrong for the Ombudsman to seek advice from and to give instructions to the Treasury Solicitor in these current proceedings.
22. I regret that I do not really understand this point. Mr Murray asked the Ombudsman to investigate the Treasury Solicitor. The Treasury Solicitor's involvement as the solicitor for the Ombudsman in these proceedings only arises out of and subsequent to Mr Murray's complaint about the Treasury Solicitor's conduct which he asked the Ombudsman to investigate. It seems to me, therefore, that there is nothing in this point.
23. I have gone into these matters in some length in deference to Mr Murray's lengthy written and helpful, much briefer, oral submissions. It seems to me that there is no real prospect of any success on appeal and no other compelling reason to grant permission to appeal. I must therefore refuse this application.
ORDER: Application for permission to appeal refused. (Order not part of approved judgment) ____________________