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
ADMINISTRATIVE COURT LIST
(MRS JUSTICE RICHARDS)

		Royal Courts of Justice Strand London, WC2 Monday, 7 October 2002

Monday, 7 October 2002

1. MR ABERNETHY: My Lord, I would just like to check you received all my submissions. You should have six folders and a single sheet, giving my second variation to the appellant's notice, dated 3rd October 2002.
2. LORD JUSTICE DYSON: Yes, I have, thank you very much.
3. MR ABERNETHY: I am appealing so the Court of Appeal can do four things: (1) Grant me a judicial of the Ombudsman's report dated 30th July 2001; (2) order that the hearing of my application --
4. LORD JUSTICE DYSON: Do not go too fast. Judicial review of the decision of the Ombudsman's report, yes.
5. MR ABERNETHY: Order that the hearing of my application for permission to appeal to the Court of Appeal against the costs order made by Keene J on 29th July 1999, which was adjourned by Carnwath J on 15th October, be resumed at a date to be fixed; (3) the order for costs made by Richards J on 14th April 2002 in relation to the costs of the preparation of the defendant's Acknowledgment of Service and the costs of the hearing on 19th April 2000 be quashed; (4) notwithstanding (2) above, which relates to the adjourned hearing, I am asking that Keene J's costs order dated 29th July 1999 and Richards J order dated 14th April enforcing that order be quashed and instead the respondent be ordered to pay the applicant's costs in defending the action on 29th July 1999 and all prior costs.
6. LORD JUSTICE DYSON: Is that different from 2?
7. MR ABERNETHY: Yes.
8. LORD JUSTICE DYSON: I thought 2 is saying that Keene J's costs order should be quashed --
9. MR ABERNETHY: No, 2 is saying that I had -- I appealed and Carnwath J had to start -- did not really hear the appeal.
10. LORD JUSTICE DYSON: But he adjourned it, yes.
11. MR ABERNETHY: And that is the state we are in. The appeal was adjourned until Mr Richards opened again. And I think Mr Richards unfairly opened the appeal because I'd no warning --
12. LORD JUSTICE DYSON: I am just trying to understand the difference between No.2 and No.4.
13. MR ABERNETHY: That is why I say "notwithstanding". Well, if I can go on just a little bit it might be clearer. Regarding the costs order made by Keene J and the hearing by Carnwath J, Richards J made two mistakes. I sit in this court's acknowledgment of both of these mistakes: (1) he unjustly, without notice, opened the hearing adjourned by Carnwath J; (2) having unjustly opened the hearing, he wrongly refused my application for permission to appeal and enforce Keene J's order.
14. LORD JUSTICE DYSON: Yes.
15. MR ABERNETHY: In the 20 minutes allotted to me I cannot afford to spend more than five minutes on each of these four points. I will deal with the matters relating to the costs orders first. My skeleton arguments (paras 2-22 and paras 104-105) cover the matters of Richard J's unjust and unlawful reconvening, without notice, of my application for permission to appeal to the Court of Appeal which was adjourned by Carnwath J on 15th October 1999. I have submitted to this court the papers before Carnwath J. They comprise, inter alia, 133 pages of evidence and references, and 34 pages of argument. Richards J spent about two or three minutes looking at the grounds set out in my application. He asked me to comment. I was in no position to argue the case and I said so. I had not looked at the papers that were before Carnwath J for two and a half years, I was exhausted and dehydrated. I'd been on my feet speaking for over four hours.
16. It is obvious that Richards J gave no real consideration to my submission. He just rejected my application out of hand. His cavalier attitude was a gross insult to the careful consideration Carnwath J had given to my application. Carnwath J had adjourned the hearing from the morning until afternoon so that Mr Goldman of Pulvers could be present.
17. I would refer to my skeleton argument para 22. With hindsight I should have kept my mouth shut about the adjournment of the hearing by Carnwath J and then on the following Monday apply for the adjourned hearing to be re-opened. I am being penalised for being frank and open with the court. I cannot deal with this matter in five minutes, it requires a proper hearing and it requires my adjourned hearing to be reinstated at a date to be fixed.
18. I want now to deal with orders relating to the costs of the hearing before Keene J on 29th July; that includes Keene J's order and Richards J's order of confirmation. I consider Keene J's order to be unsound --
19. LORD JUSTICE DYSON: I am sorry to interrupt you, I will not interrupt anymore than I have to, but I need to understand - the order made by Keene J which you are seeking leave to appeal against is his order that you should pay £3,000.
20. MR ABERNETHY: Yes.
21. LORD JUSTICE DYSON: And that is the one where you complain about Richards J not giving you an opportunity to make your arguments and all the rest of it. That is it in a sentence.
22. MR ABERNETHY: I went to Richards J hearing, all he -- I was supposed to settle was what the Ombudsman had asked was his -- to be released from his undertaking to not enforce the order. Richards J then re-opened the hearing that Carnwath J had adjourned, without notice.
23. LORD JUSTICE DYSON: I understand that, but you are now coming on to really I think No.4 of the four items you have identified, and are still referring to the costs order made by Keene J. Is that the same costs order or a different one?
24. MR ABERNETHY: Yes, Keene J made a costs order. I appealed. I requested to appeal to the Court of Appeal. Carnwath J did not really hear it --
25. LORD JUSTICE DYSON: He adjourned it.
26. MR ABERNETHY: -- he almost immediately adjourned it on the understanding that the Ombudsman would not enforce it until everything had been settled, until the new investigation had taken place. Then when we come to the hearing with Richards J all I was expecting and all the Ombudsman was expecting and what the judge was expecting was that he was being asked to allow the Ombudsman to enforce the judgment. I said to the court, well, if you are going to allow him to enforce the judgment I will ask for my adjourned -- request permission for an appeal to be re-opened. Richards J then immediately said he would re-open the hearing, and I had no warning of that.
27. LORD JUSTICE DYSON: I have understood that point, but you are now moving on to another point and that is where I got a bit lost. What is your next point? I understand you say Richards J should not have dealt with the granting order, withholding of permission to appeal against Keene J's order, on that occasion.
28. MR ABERNETHY: Can I put it like this, I think that was completely unjust.
29. LORD JUSTICE DYSON: I understand that.
30. MR ABERNETHY: I realise that my idea what is unjust and what the court thinks is unjust might be quite different, large chasm between us, so I am also saying if I lose on that, which I hope I don't, I am saying that Collins J, having unjustly opened the hearing, he wrongly refused my application for permission to appeal and enforce Keene J's order. So I am really saying that I am really wanting to appeal against Keene J's order -- his enforcement.
31. LORD JUSTICE DYSON: I follow that. So is it this? You are saying Richards J should not have dealt with the point at all.
32. MR ABERNETHY: Yes.
33. LORD JUSTICE DYSON: But anyway having decided to deal with it he should have given you permission to appeal? Is that really what you are saying?
34. MR ABERNETHY: Yes.
35. LORD JUSTICE DYSON: Because you have a good argument for saying Keene J was wrong.
36. MR ABERNETHY: Yes, I am saying Keene J was wrong (inaudible). I refer to my skeleton argument - I am going to deal with orders relating to Keene J's order and Richard J's confirmation of the order. I consider Keene J's order to be unsound and this can be seen by looking at the order itself, which is on pages 37 and 38 of Volume 1. The order is dated 29th July 1999, but sealed on 15th September 1999, ie seven weeks after the hearing. It is the court's second attempt at writing an order and to me it still does not make sense. The order is an order arising from the respondent's application to set aside the grant of judicial review ordered by Turner J on 14th January 1999. It states:

"It is ordered that this application"

37. - ie the respondent's application -

"to set aside be allowed and that:

(1) The application for judicial review be stayed sine die;

(2) there be liberty to apply to either party."

38. In other words: (1) The application for judicial review be set aside; (2) the application for judicial review be stayed sine die. How can both be true? It took this court seven weeks to come up with this version after I had pointed out the inconsistencies in the first version. In my submission before Carnwath J I submitted photocopies of pages from the Oxford English Dictionary and from two legal dictionaries showing the meaning of the word "allow". None of them allowed me to make sense of the order. The order is nonsense.
39. My comments on Mr Richard's decision relating to the costs of the hearing before Keene J are given at paras 8 to 22 and paras 104 to 105 of Volume 1. However, I will draw your attention to the documentation before Carnwath J (blue folder and No.4) and to the transcript of the hearing before Carnwath J found at pages 11 to 21 in File 1. I would particularly draw your attention to the marked paragraphs on pages 17 and 18, which read:

"I must say, Mr Goldman, it does seem to me, with respect to Keene J to be a slightly surprising order in this sort of case where in effect you did not get what you were looking for, which was to knock out the proceedings altogether, but for them to be stayed with liberty to apply to see what would happen in due course. There is a potential question, I think, as to whether that was within his reasonable discretion."

40. That question has still to be answered. Richards J did not ask the question - he merely decided:

"That was an order by Keene J in full knowledge of the facts of the case before him and I am not going to go behind it."

41. (That is filed on the penultimate paragraph on page 50 of File 1). However, I will draw your attention to his initial reaction when the matter of Keene J's costs order was first raised. He says (this is at page 47, slightly earlier):
42. "Yes. It does seem odd in a case where permission was granted, there was then a decision to determine the complaint, to actually proceed with an investigation of complaints so that the proceedings went off. On the face of it, you would expect the order the other way round in the those circumstances."
43. I quote from paragraph 12 of my skeleton argument.

"1. The Ombudsman applied for my substantive judicial review to be 'discontinued' subsequently altered to set aside at the start of the hearing.

2. The Ombudsman refused thrice to consider Keene J's suggestion of a stay as in the Alabi case but insisted on 'set aside'. This had the following results:

(a) the Ombudsman argued for 'set aside'. Keene J refused to order 'set aside' - ie the Ombudsman lost.

(b) the Ombudsman refused to consider a stay - Keene J ordered a stay - ie the Ombudsman lost;

(c) I argued to maintain my right to a substantive judicial review. Keene J ordered a stay - ie my right was maintained, so I won;

(d) I did not argue against a stay. I was quite happy with a stay. Keene J ordered a stay - ie I won."

44. If the ombudsman had applied for a stay there would have been no need for a hearing and hence no expense. It is an overriding objective to save expense therefore the respondent should have applied for a stay."
45. I quote from my skeleton argument.

"The law has changed since July 1999, but let us assume that we are back in July 1999 when we had ex parte applications. Let us consider another applicant with an identical claim to mine, who has been granted a judicial review. Along came the Ombudsman who offers a reconsideration, provided the applicant does not proceed with his judicial review. The applicant refuses because he wishes to be certain that another investigation will be carried out before he gives up his right to a judicial review. Would the Ombudsman be entitled to apply for set aside and then obtain a stay and his costs as per Keene J's judgment? I should hope not; otherwise the Ombudsman could adopt the same procedure umpteen times over. He would be in a win/win situation."

46. Although Keene J referred several times during the hearing to the Alabi case in which the Court of Appeal ordered the proceedings to be put on hold (ie stayed) after the respondent had agreed to reconsider, he makes no mention of this case in his judgment. If Keene J had been able to obtain a transcript of the judgment he would have seen that Mr Alabi was awarded his costs. Keene J has not followed the Court of Appeal decision in this matter. The Alabi decision is filed at pages 106-115 in the file before Carnwath J.
47. I now want to speak about the cost arising from the refusal of the application for judicial review. I consider Richards J's award of costs to the defendant to be unsound. My arguments are set out in paragraphs 106-115 in Volume 1E.
48. In my written submissions I have provided copies of the following two papers from the March 2002 issue of the learned journal, "Judicial Review": (i) Leach and Permission Costs by Robert McCracken and Gregory Jones; (ii) The New Procedure: Is it working? by Michael Fordham. Clearly the authors of both papers were concerned with the judgment in the case of Leach and consider it to be unsound.
49. I have quoted from Munby J's judgment in the case of Harris, and from Collins J's judgment in Leach in my skeleton argument at paragraphs 108-115, and I quote from these. I will only quote 3 or 4 paragraphs. 108. I will draw your attention to the statement by Munby J in the middle of page 38.

"But my recollection is that he was not referred to, or at least did not refer to and therefore had not been referred to, the Practice Direction, and the Practice Direction seems to me to be perfectly clear on the subject."

50. 110. I will draw your attention to the last two sentences of Munby J's considerations of costs - and you can see that on page 108. All the Practice Direction does is to indicate that because generally one does not make an order for costs in these circumstances, some reason is required justifying a departure from the general approach.
51. 111. Munby J had the benefit of Collins J's judgment but decided it should not be followed. In the present case no reason was given for justifying a departure from the general rule. It should be noted that Munby J refused to allow the costs of the hearing and the costs of the preparation of the defendant's acknowledgment of service.
52. The following quotations from Collins J --
53. LORD JUSTICE DYSON: Can I just stop you for a moment. The costs order you are complaining about here is the order made by Richards J in your challenge to the Ombudsman's report which you lost?
54. MR ABERNETHY: Yes.
55. LORD JUSTICE DYSON: Which you lost.
56. MR ABERNETHY: I lost but -- I lost but he awarded costs, but it was a preliminary hearing - a leave application, and costs should not be allowed on a leave application.
57. LORD JUSTICE DYSON: Which was a leave application?
58. MR ABERNETHY: Before Richards J.
59. LORD JUSTICE DYSON: Your challenge to the Ombudsman was a leave application? I see.
60. MR ABERNETHY: I was applying for leave for a judicial review of the Ombudsman's report. In the Leach case the Ombudsman obtained costs, and according to the Practice Direction he should not have obtained the costs; and in the case of Harris the judge refused costs. And I am quoting Harris (inaudible) incompatible judgments here.
61. I am saying Munby J had the benefit of Collins J's judgment and decided it should not be followed. It should be noted that Munby J refused to allow the costs of the hearing and the costs of the preparation of the defendant's Acknowledgment of Service. And I just wanted to quote from two small quotations from Collins J's - that is the Leach judgment. On paragraph 21 he says:

"I am conscious, as I say, that I have not been able ... this is an extempore judgment ..."

62. - paragraph 22 he says:

"I am sorry in a way that I have not been able to make further inquiries ..."

63. He was always aware that the matter required deeper examination.
64. LORD JUSTICE DYSON: Well now I am very conscious of the time. What do you want to say to me about the challenge to the decision on the report itself?
65. MR ABERNETHY: Well another half a page and I am on to that.
66. LORD JUSTICE DYSON: Okay.
67. MR ABERNETHY: I would also mention that Mr Harris did not draw Munby's J attention to CPR 54, it was Munby J who drew the Official Solicitor's attention to it. It should be noted that the Official Solicitor did not attempt to put forward lengthy arguments in support of Leach; he seemed to have accepted that he was on unsound ground. He even points out that the defendant need not attend the oral permission hearing.
68. I submit that in the light of the two learned papers and Munby J's judgment in the case of Harris, there are sufficient grounds for this matter to be considered by the Court of Appeal.
69. I now speak about the refusal of my application for judicial review. My arguments against Richards J's refusal of my application for judicial review are set out in my skeleton argument, paras 61-101, and paras 116-124. The principal matter to be resolved is whether or not the Ombudsman has exercised his discretion properly in accordance with law. I have included in my submission extracts from the following standard works: (1) Judicial Review of Administrative Action, 5th Edition, by de Smith, Woolf and Jowell --
70. LORD JUSTICE DYSON: I think you can take it that I know the legal principals. It is a question of how they apply in this case.
71. MR ABERNETHY: Yes, well, can I just read out the --
72. LORD JUSTICE DYSON: Yes.
73. MR ABERNETHY: I am only going to read two extracts. This is from Wade and Forsyth, page 356-357:
74. "... no unfettered discretion in public law - Statutory power conferred for public purposes is conferred as it were on trusts - that is to say it can validly be used only in the right and proper way which Parliament when conferring it is presumed to have intended."
75. Then Wade and Forsyth on 359, quoting from Lord Reid:

"Parliament must have conferred a discretion with the intention that it should be used to promote the policy and objects of the Act; the policy and objects of the Act must be determined by construing the Act as a whole and construction is always a matter of law for the court. In a matter of this kind it is not possible to draw a hard and fast line, but if the Minister [or in this case the Ombudsman] by reason of his having misconstrued the Act or any other reason so uses his discretion as to thwart the policy and objects of the Act, then our law would be very defective if persons aggrieved were not entitled to the protection of the court."

76. Well, my Lord, I am aggrieved and I am seeking the protection of the court.
77. In paragraph 85(i) on page 44, I have defined the legislative purpose to be:

"To remedy injustice to the person aggrieved and to prevent similar injustice being caused in the future."

78. This definition is taken straight from the Statute, it is on the Local Government Act 1974, paragraph 31(2B) which is filed at 681.
79. How do we prevent similar injustice being caused in the future? By identifying and then rooting out and eliminating maladministration now. Certainly not by ignoring maladministration and sweeping it under the carpet. If this court does not agree with my definition of the legislative purpose of the section of the 1974 Act setting up the Local Government Ombudsman, would it please set out its own definition of the "legislative purpose of the Act".
80. In paragraphs 75 to 77 "Public Duty" and in paragraphs 123-124, I have quoted several references regarding the Ombudsman's and the Council's, duty of fair and frank disclosure; ie they have a duty to place "all the cards face upwards on the table", I am sure that is a well-known quotation to you, my Lord.
81. I have repeatedly asked the Ombudsman to reveal important relevant reports such as those by the Council's Health and Safety Department, but my requests have been ignored. I am fighting this case with my hands tied behind my back.
82. In paragraphs 84-87 I have tried to set out the views of "the reasonable man" on the various decisions the Ombudsman has made to see if they promote or thwart the objects of the Act. In all cases the Ombudsman's decisions thwart the purposes of the Act.
83. I have pointed out in paragraph 74 that Richard J's judgment was based on untrue statements regarding the issue of a certificate of substantial completion under the building regulations. There is evidence before this court that the building was opened without a certificate of substantial completion and without a fire certificate. This situation lasted for about a year. There is also evidence before this court that it appears that no Council officer was delegated with authority or a duty to obtain a fire certificate when a building was altered, and yet the Ombudsman uses, or, as I say, abuses, his discretion in a manner which fails to ensure that those matters are rectified and similar failures avoided in future.
84. The Council is responsible for a large number of public buildings and of schools. Is this court content that the Ombudsman does nothing to prevent similar maladministration in the future? Is the Court of Appeal to give its endorsement and approval to the Ombudsman's abuse of his discretion which allows the perpetuation of such maladministration? If so, that will be a message received not just by Westminster City Council, but by every local authority in the country. Thank you, my Lord.
85. LORD JUSTICE DYSON: Thank you very much indeed.
(Judgment followed)