England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(SIR RICHARD TUCKER)

		Royal Courts of Justice Strand London WC2 Thursday, 3rd May 2001

Thursday, 3rd May 2001

1. LORD JUSTICE MUMMERY: This is an application for permission to appeal made by Mr Ogilvy in person. The proceedings which he wishes to bring against the London Borough of Tower Hamlets arise out of the way in which the Council terminated his working relationship with them in the summer of last year.
2. Mr Ogilvy was supplied by an employment agency, Badenoch & Clark, to the Council as a replacement housing advice worker starting work in the 2nd week of August. Soon after he started work he went on holiday abroad and resumed work on 11th September. He ceased working for the Council on 21st September. It is not necessary to examine the details of why that relationship ceased. The circumstances in which it did cease gave rise to an application by Mr Ogilvy for permission to apply for judicial review against what is described as the decision of the London Borough of Tower Hamlets communicated orally to the applicant on 21st September 2000 contrary to the audi alteram partem rule/section 3 of the Human Rights Act 1998.
3. Mr Ogilvy seeks judicial review of the decision dismissing him without putting specific proceedings in charge to him, and giving him the opportunity to respond, and sufficient time to prepare the case and properly test any written evidence. The relief sought is:

"1. An order to quash the said decision;

2. A declaration that the Local Authority acted unlawfully.

3. A declaration that the Applicant is entitled to have his case determined according to law; and

4. Such other relief or remedy within its powers which the Honourable Court considers just and appropriate."

4. There was then set out under various headings the grounds under which relief is sought. The grounds follow Lord Diplock's famous judgment in the case of Council of Civil Service Unions v Minister for the Civil Service (Anisminic) [1985] AC 374 – illegality, procedural impropriety, failure to give written reasons following dismissal, and added to that is a breach of Article 6 of the Human Rights Convention enshrined in section 3 of the Human Rights Act 1998.
5. The application was first considered by Goldring J on 5th October 2000. He decided that the matter would be adjourned for an inter partes hearing. The inter partes hearing took place before Sir Richard Tucker on 26th October 2000 when Mr Ogilvy appeared in person and Mr Damian Brown appeared on the instructions of the Council. The judge decided that there was no jurisdiction to entertain the application for judicial review. He said in paragraph 9 of his judgment:

"The question is whether the present complaint gives rise to any public law issue. I am satisfied that it does not. If Mr Ogilvy has any complaint it is a matter of private law to be ventilated in such other directions as he may see fit. But the remedy of judicial review is not only a remedy of last resort after all other effective remedies have been exhausted. It is also a remedy in public law for safeguarding public law rights and for ventilating public law issues. It is not a remedy appropriate for litigating private law issues such as these."

6. There was then an argument before the judge as to costs. The Council asked for their costs. They put them at £2,000. The sum which Sir Richard Tucker ordered Mr Ogilvy to pay was £1,000. Mr Ogilvy pointed out to the judge that his earnings ought to be taken into account in the assessment of his liability for costs.
7. Mr Ogilvy seeks permission to appeal against the refusal of permission. He has to satisfy the Court on the application for permission to appeal that the proposed appeal has a real prospect of success. Mr Ogilvy submitted a number of skeleton arguments which helpfully explained his case and why, he contends, that it is concerned with public law issues and is based on an administrative decision of a public body which is clearly amenable to judicial review in the High Court. He points out that it is common ground between him and the Council that there is not an employee/employer relationship between them, and so he has no contractual rights which he can enforce in other courts. He contends that he has no private law or right on which he can institute proceedings in any other court or tribunal. Therefore, the matter ought to be entertained as a judicial review application. He has repeated his arguments on Article 6 of the Convention and the Human Rights Act 1998.
8. In my judgment, this proposed appeal has no real prospect of succeeding. I agree with Sir Richard Tucker that the grievance sought to be ventilated by Mr Ogilvy does not raise issues of public law. Public law issues do not arise simply because the decision challenged is a decision of a public authority, nor does a body become amenable to public law remedies, such as judicial review, simply because there may be no private law remedies.
9. Mr Ogilvy has to satisfy the Court that the decision which he seeks to have quashed and the legality of which he wishes to have adjudicated upon by way of declaration is a public law matter. In my judgment, it is not. If it gives rise to any right to bring legal proceedings at all it is by proceedings of a private law nature. If what is sought to be enforced are rights conferred by the Employment Rights Act 1996, then the usual forum for bringing complaints of infringements to such rights is an Employment Tribunal. If the claim is are outside the jurisdiction of the Employment Tribunal, then, if there is a private right, the claim can be entertained in a matter of contract or some other legal right in the ordinary courts. In my view, this jurisdictional position has not been altered by the provisions of the 1998 Act. The Articles of the Convention do not impinge on the jurisdictional position.
10. As to the appeal against costs, Mr Ogilvy has the additional difficulty that costs are in the discretion of the Court. Permission to appeal against the exercise of the discretion is not normally granted, unless it can be demonstrated that the costs order was plainly wrong, in violation of legal principle, failed to take into account relevant facts or took into account irrelevant facts. In this case it is a normal order to make after a contested inter partes hearing, that the party who has failed in his application should pay the costs. There are no grounds for querying the amount of the costs, and Mr Ogilvy's suggestion that the judge should have added some such rider as that the order was not to be enforced without the leave of the court, is only normally made by the courts in the case of publicly-funded litigants. Mr Ogilivy is not publicly-funded.
11. I have pointed out to him that one of the differences between costs in the ordinary courts and costs in employment tribunals is that in the tribunals it is still unusual to make orders for costs against the party who has failed, and in the ordinary courts the general rule still is that the most important factor in determining liability of costs is whether a party has won or lost. Mr Ogilvy lost.
12. I express no view on the merits of Mr Ogilvy's complaints against the Council. I express no view as to what proceedings it is appropriate for him to bring, if there is no jurisdiction to entertain judicial review proceedings. That is a matter for Mr Ogilvy. For all those reasons the application is refused.
(Application for permission to appeal refused)