England and Wales Court of Appeal (Civil Division) Decisions

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

		Royal Courts of Justice Strand London WC2 Tuesday, 5th February 2002

1. LORD JUSTICE LATHAM: This is an application for permission to appeal against a decision of Mr Justice Moses on 28th November 2001. The judge then refused the applicant permission to apply for judicial review of a decision of the Parliamentary Ombudsman, which was that the Ombudsman did not consider that the complaint made by Mr Jackson raised issues of maladministration which could be investigated.
2. There were in fact two letters in which the relevant decision was given. The first was dated 7th March 2000 and the second was dated 20th March 2001. As far as the decision of 7th March 2000 was concerned, clearly, if in fact that was the operative decision, the applicant was substantially out of time for making an application for judicial review of that decision; and Mr Justice Moses held essentially that that was the substantive decision. However, he considered the underlying merits and concluded that, even if the decision of 20th March 2001 was the relevant decision and therefore the application was within time, nonetheless he would have dismissed the application on its merits.
3. There is a long history behind the application. It effectively arises out of the applicant's employment by Burnley College as a senior lecturer. He was dismissed from that post on 3rd September 1993. The circumstances surrounding that dismissal were such that the applicant considered that he had been unfairly treated; that the complaint that was made against him resulting in his dismissal was in fact the result of a student prank which had redounded to his disadvantage.
4. He took two courses. He complained to the Department of Education (as it then was) and to the Employment Tribunal for unfair dismissal. The claim for unfair dismissal was dismissed on 10th August 1994. The applicant thereafter obtained evidence which he considers fully vindicates his assertion that the complaints against him were misplaced and that he had been the victim of a miscarriage of justice arising out of a student prank. The evidence included evidence from students which he submits fully vindicated the stance that he took. Unhappily for him, the Employment Appeal Tribunal took the view that that was material which could have been obtained by him for the purposes of the original hearing. It accordingly fell foul of the rule in Ladd v Marshall and was not material which could support an appeal from the Employment Tribunal's decision.
5. The Department of Education had, it would appear, made some investigation as a result of the applicant's complaint, but decided not to intervene. It would appear from the material that is before me that a significant element in that decision must have been the fact that the applicant was taking proceedings for unfair dismissal and that that was a course open to him which would permit an independent tribunal to consider the merits of the actions of the Burnley College.
6. Be that as it may, the result of the application for permission to appeal being dismissed by the Employment Appeal Tribunal was that the applicant sought to put the new material before the Secretary of State for the Department's consideration. The essential complaint by the applicant is that the Department failed really in two separate respects. First, it failed itself to unearth the material which he describes as the new evidence which, if it had done its job, as he believes it should have done, would therefore have been available for him for the purposes of the original hearing before the Employment Tribunal. Second, no steps were taken on the basis of the material which he himself had obtained after the event, even though it established, according to him, sufficient to justify the conclusion that Burnley College had not behaved properly and that the Secretary of State would have been justified in intervening and giving directions in particular in relation to his employment.
7. In the absence of any action by the Secretary of State, the applicant ultimately complained to the Parliamentary Ombudsman. After some difficulty, eventually the appropriate reference was made by his Member of Parliament and the Parliamentary Ombudsman therefore considered his complaint. He concluded, in his letter of 7th March 2000, that the complaint was not one of maladministration but related to a discretionary decision of the Secretary of State as to whether or not to intervene and that that was not a matter with which the Ombudsman would engage, particularly bearing in mind that there had in fact been the opportunity for the applicant to obtain an independent assessment of the way in which he had been treated via the Employment Tribunal route.
8. The applicant considered that the Ombudsman's officers had failed fully to understand what it was that he was complaining about. He therefore wrote on numerous occasions indicating his dissatisfaction with the decision. He was ultimately asked to collate his complaints in one document, which he did in a letter of February 2001, cross-referencing his assertions in that letter to the numerous documents which were available to the Ombudsman's officers. It was on considering that letter that the ultimate decision of 20th March was reached. The Ombudsman adhered to the original decision that this was not a case of maladministration but a refusal to exercise a discretionary power in circumstances where there was an alternative external route for the complaint to be investigated. Mr Justice Moses, on considering the case, concluded that the Ombudsman was entitled to reach that view and that there was nothing unlawful or irrational in the conclusion that was reached.
9. I can well understand the disappointment of Mr Jackson to be faced by the refusal of, in the first instance, the Secretary of State essentially to intervene at any stage and, ultimately, the Ombudsman to intervene, when he himself had failed to persuade the Employment Tribunal and the Employment Appeal Tribunal that his case was well founded. It seems to me, however, that, where there were such proceedings available to the applicant, the Secretary of State was entitled to take the view that it was essentially a matter for the applicant to resolve in those proceedings rather than for him to resolve by way of intervention, even though it may be that other Secretaries of State might have taken a different view. It is noteworthy that the applicant was not his own best friend, if I can put it that way, at the time of the original hearing before the Employment Tribunal because, as I understand the judgment of the tribunal, he did not himself give evidence and therefore provide the tribunal with the material which would have enabled it at least to hear his side of the case with some evidential basis behind it.
10. I am afraid that the position has been reached that the courts cannot provide the applicant with any remedy in the way that he wishes. I agree fully with Mr Justice Moses that the conclusions of the Ombudsman are not ones which were unlawfully reached, nor were they irrational. I am afraid that I cannot help Mr Jackson by granting him permission to apply for judicial review of the decision of the Ombudsman.
11. There is a subsidiary issue relating to a complaint by Mr Jackson's daughter. That issue is not in fact before this court because no application has been made by his daughter, which would be a necessary prerequisite to this court being prepared to investigate the circumstances surrounding her problems.
12. But for the reasons that I have given I am afraid that I must refuse Mr Jackson's application.

Order: application for permission to appeal dismissed; transcript of this judgment to be supplied to the applicant at public expense.