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
QUEENS BENCH DIVISION
(MR JUSTICE BURTON)

		Royal Courts of Justice Strand, London, WC2A 2LL
		18th October 2002

Lord Justice Potter:

1. These are two linked renewed applications for permission to apply for judicial review, such applications having previously been refused by Michael Burton J on 17 June 2002 for reasons set out in his judgment of that date, a transcript of which is before me and in respect of which the applicant seeks permission to appeal.
2. The applications are the latest in a long-running saga of complaints by the applicant, in his capacity as the former majority shareholder and moving spirit of a now defunct company North County Foods Limited (NCF), and the English Industrial Estates Corporation (EIEC) and the Department of Trade and Industry (DTI) in connection with the refusal some 10 years ago of EIEC, as owners of NCF’s factory site, to permit NCF to erect a security fence around its factory which was essential to the development and success of NCF’s business. By reason of its status, EIEC had a statutory duty to comply with directions given by the DTI. As a result of the dispute which developed in 1990/91, the applicant pressed the Parliamentary Commissioner for Administration (the “Ombudsman”) to institute an investigation for maladministration against the EIEC and/or the DTI, the matter being canvassed in correspondence for some years. The applicant has accepted before me that the Ombudsman’s refusal to investigate in 1992, based on his lack of jurisdiction to investigate EIEC under Schedule 2 of the Parliamentary Commissioner Act 1967 (“the 1967 Act”) was justified. However, the matter did not stop there.

THE FIRST APPLICATION

THE FIRST CLAIM FOR JUDICIAL REVIEW (CO/2038/97).

3. After a series of letters from the Ombudsman explaining the reasons for his refusal to investigate, the Member of Parliament for the applicant’s constituency, Mr Ainger, who had also received representations from the applicant, raised a formal complaint to the Ombudsman on behalf of the applicant by letter of 24 May 1996. In that letter Mr Ainger asked the Ombudsman ‘to re-consider your decision not to investigate the matter’. However, it is the applicant’s case that, by that letter, he did not merely complain of the original conduct of the EIEC and the DTI in respect of the refusal to permit his fence to be erected, but of the fact that the DTI had made untruthful assertions in the course of the applicant’s attempts to obtain an inquiry or investigation into that original conduct by the Machinery of Government Division of the Cabinet Office and/or the Citizens’ Charter Unit, this constituting a head of maladministration which it was within the jurisdiction of the Ombudsman to investigate. In a letter dated 24 September 1996 the Ombudsman maintained his refusal to investigate. The applicant sought to challenge this decision by judicial review. However, he did not make application until June 1997, so that in the proceedings for leave to move for judicial review which were heard by Laws J on 23 October 1998 leave was refused on grounds of undue delay. The applicant appeared in person without the benefit of legal aid upon that occasion in circumstances to which I will turn in more detail later. A large measure of the time which had elapsed arose from the delays of the Legal Aid Board in processing the applicant’s request for legal aid, but because Laws J found that there had been other inexcusable delay, he refused leave. At the same time, he stated that, having examined the merits of the complaint there was plainly nothing in them in any event. The applicant renewed his application for permission, which was again refused by the Court of Appeal on 27 May 1999 for similar reasons in a judgment which summarises the early history of the dispute as it then appeared to the court and made clear, so far as the merits were concerned, that in the view of the court the substance of the complaint made in the letter of 24 September 1996 was apparent to the applicant some years before.
4. The Court of Appeal refused the application of Mr Murray to present a petition of appeal to the House of Lords on the grounds that, following decision of the House of Lords in Re Poh, no appeal lay to the House of Lords against refusal for permission to apply for judicial review.

THE SECOND CLAIM FOR JUDICIAL REVIEW (CO/643/2000)

5. The applicant wished to appeal from the Court of Appeal’s decision and/or apply to the House of Lords for judicial review if he could. He was advised that a number of petitions were awaiting disposal in the House of Lords relating to their Lordships’ jurisdiction in that respect. He sought legal aid to petition the House of Lords. However, legal aid was refused on the grounds that the application to the House of Lords was bound to fail. The applicant then applied for permission to claim judicial review against the Legal Aid Board challenging its decision to refuse legal aid to appeal to the House of Lords. He was refused permission by Harrison J on 27 March 2000 on the grounds that the Legal Aid Board was correct that the application was bound in any event to fail on grounds of delay. The applicant made renewed application for permission to the Court of Appeal which was refused by Chadwick LJ on 17 July 2000.
6. It is worthy of note at this stage that, following the decision of the House of Lords in R-v- Department of Trade and Industry ex parte Easterway [2000] 1 WLR 2222 and a consequent circular from the Judicial Office of the House of Lords dated 2 November 2000 inviting petitioners such as the applicant to withdraw their petitions for leave to appeal, the applicant withdrew his petition.

THE THIRD CLAIM FOR JUDICIAL REVIEW (CO/1893/2001)

7. By a further claim the applicant sought to challenge the failure of the Ombudsman to investigate a complaint by the applicant that the Treasury Solicitor had delayed for two months in replying to correspondence concerning the enforcement of a costs order obtained by the Treasury Solicitor in the course of the first claim for judicial review. Permission to apply for judicial review was refused on the applicant’s oral application on 17 June 2001; permission to appeal being refused by Rix J on 22 October 2001.

THE FOURTH CLAIM FOR JUDICIAL REVIEW (C0/668/2002)

8. Having failed in his application in respect of the refusal of the Legal Aid Board to grant legal aid for his appeal to the House of Lords, the applicant launched a claim dated 8 February 2002 against the Ombudsman for declining to investigate the complaint by the appellant that the Legal Aid Board, now the Legal Services Commission (LSC) had been guilty of inefficiency and delays, amounting to maladministration in connection with his original application for legal aid. The applicant alleged that such maladministration caused the applicant’s failure in his first claim for judicial review before Laws J (CO/2038/97): see paragraph 3 above. The relevant documents are contained in green bundle 1 before me. In view of the overlapping factual basis, this fourth claim falls to be considered with the fifth claim for judicial review to which I shall turn shortly. It is the fourth and fifth claims for judicial review which were the subject matter of the linked application for permission and were heard by Burton J on 17 June 2002 under Court of Appeal reference numbers 2002/1331 (formerly CO/668/2002) and 2002/1332 (formerly CO/1012/2002). The fourth judicial review claim has been the principal subject of the applicant’s oral submissions to me, but I turn first to dispose of the fifth claim.

THE FIFTH JUDICIAL REVIEW CLAIM (CO/1012/2002) CA REFERENCE 2002/1332.

9. Having received the letter of 2 November 2000 from the judicial office of the House of Lords inviting him to withdraw his petition, the applicant wrote to the Treasury Solicitor on 30 November 2000 offering to withdraw his petition subject to a mutually agreed arrangement concerning how the costs should be settled. In response he received a letter from Ms Diana Babar, Assistant Treasury Solicitor, dated 11 January 2001 saying that, due to his financial circumstances, the Ombudsman was prepared to write off the costs of the action and not recover them from him. By letter dated 15 January 2001 the applicant replied to that letter, noted the proposal which he said would be “in practice negligible or, at least miniscule” and said he would be making an application to the European Court of Human Rights. He also said he would make a further complaint to the Ombudsman about the delay of the Treasury Solicitor in answering his letter. The complaint was made and the Ombudsman refused to investigate. The applicant sought and was refused permission to claim judicial review as already set out at paragraph 7 (CO/1893/2001) above.
10. By letter of 25 January 2001 Ms Babar replied to the applicant observing that the costs were not negligible, that the decision to write them off had to be taken without careful consideration and, therefore, that the complaint as to delay was not justified. She observed:

“I note that it is your intention to make an application to the European Court of Human Rights. If public funds are again incurred as a result of this litigation, you should not assume that in the event of your application being unsuccessful, any order for costs against you will not be enforced.”

11. On 3 July 2001 Mr Murray wrote to the Ombudsman following a further exchange of correspondence with the Treasury Solicitor, asking the Ombudsman to clarify (i) whether the Treasury Solicitor acts for the UK in proceedings before the ECHR and (ii) which team in the Treasury Solicitor’s department deals with such cases. He explained that his enquiries were for the formulation of a prospective separate and fresh complaint for investigation of part of a series of related complaints to be placed before the Parliamentary Select Committee on Public Administration.
12. The applicant received a letter of 17 August 2001 from the Treasury Solicitor addressing the points of clarification which he had sought and, on 20 August 2001 the applicant wrote to the Ombudsman making a number of points about the conduct of the Treasury Solicitor, including the point that the Assistant Treasury Solicitor intended by her letter of 25 January 2001 to

“intimidate me … from making an application to the European Court of Human Rights.”

13. On 7 September 2001, Doctor Wernham, the Ombudsman’s Investigation Manager informed the applicant that in view of his application to appeal from the refusal of permission to appeal, it was not appropriate for him to comment substantively. The applicant did not accept the reply, stated that his point about the Treasury Solicitor’s letter of 25 January 2001 was separate from the proceedings in CO/1893/2001 and asseted that, in order to pursue his complaint, he needed to know the person responsible for the assertion made in the last paragraph of that letter. By letter of 15 October 2001, Doctor Wernham stated:

“As you are aware the letter to you dated 25 January 2001 was written by the Treasury Solicitor as solicitor for the Parliamentary Commissioner for Administration in the course of conduct of civil proceedings brought by you. A copy of this letter goes to your MP, Mrs Jackie Lawrence, for information.”

14. In correspondence, the applicant persisted in his request and on 28 November 2001 Doctor Wernham observed:

“I am sorry that I was unable to write to you in a more helpful vein but there is nothing I am able to add since the Ombudsman can do no more for you in this matter. While I know that you are corresponding with my colleague Mrs Babar on another issue, I must now regard our correspondence on this matter as ended to enable the Ombudsman’s resources to be directed to matters where he is able to assist.”

15. By letter dated 7 December 2001, Mrs Lawrence MP, wrote to the applicant saying that she did not consider it appropriate for her to submit a further complaint on this issue to the Ombudsman. On 10 December 2001 the applicant wrote to her enclosing a completed complaint form for reference to the Ombudsman; however, Mrs Lawrence maintained her position. Equally, on the basis that no complaint had been referred to him by the relevant Member of Parliament, the Ombudsman did nothing further. The applicant’s subsequent requests to Mr Tony Wright MP, Chairman of the Parliamentary Select Committee on Public Administration (by letter dated 21 December 2001) and to Mr Cynog Dafis, Welsh Assembly Member (letter dated 4 January 2002), requesting that they make a reference to the Ombudsman met with no success.
16. Before Burton J, the applicant sought an order quashing the ‘decision’ of the Ombudsman not to respond to the applicant’s letter dated 12 December 2001 enclosing a copy of his complaint to Mrs Lawrence and a mandatory order requiring the Ombudsman to inform Mrs Lawrence of the context and circumstances in which his letter of 28 November was written, inviting her to submit a complaint on behalf of the applicant. In dealing with that claim Mr Justice Burton said:

“26. It is utterly plain to me that the failure to reply to a letter is not a matter in respect of which, save in very exceptional and appropriate circumstances this court will make orders by way of judicial review. The defendant says: (i) there is no complaint before him to deal with; (ii) it is inappropriate for there to be orders that he must reply to letters; (iii) he has, in any event, decided, in the light of the myriad of previous correspondence between him and Mr Murray that there is no point in dealing with any of the matters unless and until there is a complaint before him in further correspondence.

27. I see no conceivable argument for there being a challengeable decision in relation to the non-response to the letter by Mr Murray of 12 December 2001 justiciable in this court or at all …..”

17. This reasoning seems to me totally unassailable. Under s.5(1) of the 1967 Act the Ombudsman is entitled only to investigate complaints referred to him by an MP, and in this respect, he has totally failed to find an MP willing to take his claim forward. In those circumstances, it is not necessary to consider whether or not Mr Justice Burton was right to indicate (as he did) that the application deserved also to fail on grounds of delay. I am satisfied he was plainly right on the question of the Ombudsman’s jurisdiction. I am further satisfied that any order the effect of which would be to invite or require Mrs Lawrence or any other Member of Parliament to submit a complaint would be quite inappropriate. The requirement that the Ombudsman should only be obliged and entitled to investigate a complaint referred by a Member of Parliament is part and parcel of the overall scheme set up by the 1967 Act. Under that scheme, Members of Parliament act as a filter bringing independent judgment to the question of whether or not to refer a grievance by a member of the public, no doubt largely for the purpose of preventing the Ombudsman from being overwhelmed with complaints direct from members of the public. When I expressed this view to the applicant in the course of hearing the application, he realistically accepted it to be so and did not seek to make any further submissions by way of appeal or re-application in relation to the fifth judicial review claim. I therefore return to:

THE FOURTH JUDICIAL REVIEW CLAIM

18. On 23 April 2001 Mrs Lawrence MP sent the Ombudsman the applicant’s completed complaint form and related correspondence in relation to his complaint against the LSC concerning the delays of the Legal Aid Board in deciding his application for legal aid in respect of his first judicial review claim which failed before Laws J (see paragraph 3 above).
19. On 30 July 2001 Mrs Bubb wrote on behalf of the Ombudsman as follows:

“Jurisdiction

4. The Ombudsman can in principle, investigate the administrative actions of the Commission including any avoidable delay on their part. Before he begins an investigation however he needs to see (a) evidence of administrative fault on the part of the Commission, (b) some evidence that the fault caused a personal injustice to Mr Murray and (c) reasonable prospects of an investigation producing a worthwhile remedy. It is that final aspect where I see difficulties in Mr Murray’s case.

Reasons for the decision

5. In the papers that Mr Murray has provided there is some indication of possible maladministration on the part of the Commission which may enable us to be begin an investigation into his complaint. However, at this stage, it is far from clear what remedy Mr Murray is seeking and what remedy we could hope to achieve on his behalf. If, bearing in mind that we may not be able to obtain the remedy that he seeks, Mr Murray would like us to begin an investigation under his complaint against the Commission, it is open to him to write to me again. It would be helpful if Mr Murray could provide us with a brief summary of his complaint and the remedy that he is seeking on no more than two sides of A4 paper.”

20. This last request was no doubt because, as stated earlier in the letter, the applicant had submitted a ‘large volume of paper consisting of a detailed twenty-six page letter of complaint dated 18th April 2001 together with the enclosures referred to at the end’ (see pp 109-134 of green bundle 1. In the applicant’s response of 21 August 2001 he indicated that he could not say at that stage in what manner or to what extent the Ombudsman should make recommendations in order to remedy the maladiministration, but he felt it appropriate to say that in the light of the deprivations he had suffered over the previous few years whilst surviving on State income support and housing benefit and loans from others as a result of the insolvency of his company brought about by maladministration, he sought (a) an apology and (b) more importantly, financial compensation for the harm sustained.
21. After further correspondence in which the applicant sought expedition in relation to the investigation of his complaint, which correspondence appears in green bundle 1, Mrs Amery, the Investigation Manager for the Ombudsman wrote on 12 November 2001:

“The decision

… I have considered carefully the further papers that Mr Murray has provided in the light of the papers that you sent previously, but I regret to have to say that, for the reasons that I go on to explain, I see no basis upon which the Parliamentary Ombudsman could begin an investigation into Mr Murray’s complaint.

Reasons for the decision

It appears from the papers that you and Mr Murray have provided matters that Mr Murray is complaining about may have been the subject of an application for judicial review. If that is the case I should explain that under section 5(2)(b) of the Parliamentary Commissioner Act 1967 the Ombudsman is generally debarred from investigating where there is or was a remedy by way of proceedings in a court of law. Where the aggrieved has resorted to court proceedings the bar to the Ombudsman’s intervention is absolute.

I should also add that under section 6(3) of the 1967 Act, the Ombudsman is generally debarred from entertaining a complaint unless it is made to a member the House of Commons not later than twelve months from the day on which the person aggrieved first had notice of the matters complained of. The Ombudsman has discretion to waive the time bar and conduct an investigation but only if she considers that there are special circumstances which make it proper for him to do so. I do not consider that there are such special circumstances here. I should add that, in their response to our enquiry, the Commission has explained that as Mr Murray’s complaint relates to applications for legal aid that he submitted in 1996/97, the papers have since been destroyed in accordance with their normal destruction procedure. Therefore, even if the Ombudsman were able to investigate Mr Murray’s complaint, it is likely that that investigation would prove inconclusive in the absence of any contemporary paper records held by the Commission.”

22. The remedies which the applicant sought and in respect of which he renews his application appear at Section 7 of Form N461 at p.16 of the green bundle. He seeks:

(a) an order quashing the Ombudsman’s ‘decision’ taken in his letter of 12 November 2001 addressed to Mrs Lawrence on the basis of the unreasonableness and improperly founded nature of the ‘reasons for decision’ stated in the passage I have earlier read;

(b) a mandatory order requiring the Ombudsman to re-visit and carefully re-examine his complaint;

(c) a further mandatory order requiring the Ombudsman on completion to make appropriate recommendations to the LSC to remedy the harm suffered to Murray as a result of the delay in time which he alleges was caused by the LAC’s ‘defective and dilatory procedures’ and;

(d) a further mandatory order requiring the Ombudsman to identify what was meant by the statement in the letter of 30 July 2001 that ‘there is some indication of possible maladministration on the part of the Commission’.

23. Before Burton J, the matter was dealt with in this way. He refused the application for two broad reasons.
24. First, he held that the Ombudsman was entitled to conclude by virtue of the decision of Laws J and the Court of Appeal (a) on the merits and (b) on apportionment of blame in relation to delay, that this was a complaint which would be bound to fail and/or fell within Section 5(2)(b) of the 1967 Act which prohibits the Ombudsman from conducting an investigation in respect of:

“Any action in respect of which the person aggrieved has or had a remedy by way of proceedings in any court of law … Provided that the Commissioner may conduct an investigation notwithstanding that the person aggrieved has or had such a right or remedy if satisfied that in a particular circumstance it is not reasonable to expect him to resort or have resorted to it.”

see paragraph 17 of the judgment of Burton J.

25. Second, the judge held that in any event there had been undue delay by the applicant in making his application to the Ombudsman as soon as he knew in November 2000 that there was no avenue of appeal open to the House of Lords. He held that the applicant was not justified in leaving such application until April 2001 when he put the matter before his Member of Parliament. He went on to hold that because of (a) the long delays since 1997 by reason of the extended legal proceedings and (b) the fact that the LSC had informed the Ombudsman that the papers in relation to the application had since been destroyed in accordance with their normal destruction procedure, the Ombudsman was plainly entitled to refuse to hear the complaint outside the twelve-month period contemplated as normally appropriate.
26. The applicant has attacked the judgment of Burton J in two particular respects, relating to certain of his observations and assumptions concerning the proceedings before Laws J. First, he complains that the judge said at paragraph 5 that he (the applicant) ‘makes and made no complaint about the fact that legal aid was not received for his oral application’. That is apparently incorrect. In fact the applicant had applied for judicial review of the refusal of the Legal Aid Board to reinstate his legal aid for the oral hearing after its removal following refusal of his application on paper by Jowitt J.
27. Second, the applicant says that the judge was wrong to make the assumption that there had been argument before Laws J by the applicant and counsel instructed by the Treasury Solicitor upon the merits of the application as opposed simply to the question of delay. He says, and I have no reason to doubt, that, following his verbal submissions and answers to Laws J in respect of the time delay, Laws J informed counsel for the Ombudsman that he need not trouble her and that such consideration of the merits Laws J gave, he gave without the benefit of argument.
28. In that respect, the applicant’s real complaint so far as the Legal Aid Board is concerned is that (a) the delays by the Board meant that his application for permission to claim for judicial review was made out of time; (b) that the Board, having first granted him legal aid to claim for judicial review, subsequently amended his certificate to limit it to ‘an application for leave out of time and, if successful, counsel’s opinion on the merits’. This had the result that his funding did not extend to a full consideration or argument by counsel of the merits and meant that, following rejection of his application on paper by Jowett J, he was unrepresented before Laws J. It is his case that, had he been so represented, counsel could have persuaded Laws J of the merits of his case. As it was, it is his case that both Laws J and subsequently the Court of Appeal failed to appreciate the separate nature of his original complaints as to the conduct of the EIEC and/or the DTI in 1990/91 and his complaint of denial and/or false assertion by the DTI that his complaint had been investigated, as set out in the 1966 complaint by Mr Ainger on his behalf. He says that this is a distinction which has also eluded, or been ignored by, the Ombudsman in refusing to pursue the appellant’s complaint against the LSC and undermines the assumption of Burton J below that Laws J would in any event have refused the application to him on the merits.
29. The applicant has also urged upon me, though it is not clear he so urged before Burton J, that a subsidiary issue arises which justifies the giving of leave in this case namely whether, in refusing to investigate the actions of the Legal Aid Board, the Ombudsman was acting in a biased manner in preservation of his own interests, in that legal aid which he sought in 1997 was in support of an application to bring proceedings against the Ombudsman himself.
30. I have considered the weight of documents and many written submissions of the applicant in this case and listened at some length to his clear and courteous submissions before me. However, he has failed to persuade me that Burton J was in error in any significant respect so far as the substance of the application is concerned or that the decision of the Ombudsman not to investigate his complaint can be regarded as irrational, unreasonable or improper in any way.
31. I assume for the purposes of this application (as the judge did) that there is evidence of maladministration on the part of the Legal Aid Board/LSC so far as their muddle and delay in dealing with the applicant’s request for legal aid was concerned. I have seen the detailed file (Blue Bundle II) lodged by the applicant in this respect. In my view it supports the statement of Mrs Bubb at paragraph 5 of the Ombudsman’s letter of 30 July 2001 (see paragraph 19 above). However, that is no the end of the matter. The Ombudsman plainly came to his decision upon the assumption that there was some evidence of maladministration on the part of the LSC.
32. The first reason which the Ombudsman gave for his decision was the statement in broad terms that it appeared that the matters that the applicant was complaining about may have been the subject of an application for judicial review, which it seems clear in context was a reference to the proceedings before Laws J. It is also clear from the second paragraph of the letter of 12 November that the writer appreciated that the immediate complaint related to the manner in which the Legal Aid Board dealt with the applicant’s legal aid application in 1996/7. However, in the light of the underlying nature of the applicant’s complaint against the DTI, which was the real source of the damage in respect of which the applicant had informed the Ombudsman he sought a remedy (see paragraph 20 above), it was sensible for the Ombudsman to make clear that he was debarred from investigating the merits of that complaint by reason of s.5(2)(b) of the 1967 Act.
33. The Ombudsman then went on to make clear that in any event he was prima face barred under s.6(3) from entertaining the complaint of the applicant because the applicant first had notice of the delays of the Legal Aid Board in 1997 and/or the decision of Laws J on 23 October 1998, which was well over twelve months before the applicant first complained on 18 April 2001 to Mrs Lawrence as his Member of Parliament. The Ombudsman was thus only entitled to conduct an investigation if he considered that special circumstances made it proper for him to do so. He made plain he did not consider that such special circumstances existed in the applicant’s case and the applicant has failed to demonstrate to me that he had no good reason for his views, in particular that he laboured under any material misunderstanding as to the relevant facts or took into account any improper consideration informing his opinion.
34. I am not persuaded that either the Ombudsman, Laws J, or the Court of Appeal failed to appreciate that the applicant’s complaint in Mr Ainger’s letter related to, or at least included, denials and/or false assertions within the DTI as to their role in, or investigation of, the matters of which the applicant made complaint. It seems to me plain from the judgment of the Court of Appeal that the court was addressed on the basis, as was the fact, that the applicant’s complaint as set out in Mr Ainger’s letter had two aspects, the complaint as to the original conduct of EIEC (and the refusal of the DTI to make a discretionary direction in that respect), and the subsequent question as to whether the EIEC had lied about its attitude and whether this had been properly investigated by the DTI. This had been the subject of correspondence for number of years commencing on 2 July 1991 as noted by the Court of Appeal. That date, referred to both by Laws J and the Court of Appeal, was the date of a Home Office letter relating to investigation of the matter. The subsequent letters upon which the applicant relied and relies were as follows: 29.10.91 (DTI Permanent Secretary to applicant), 8.9.92 (DTI Minister for Industry to Cynog Dafis MP), 22.10.92, 1.12.92, 11.1.93, 11.2.93 (Citizens Charter Minister to Cynog Dafis MP), 19.7.94 (DTI Minister for Industry to Peter Mandelson MP), 19.12.95 (DTI Minister of State to Nick Ainger MP). Although not specifically referred to by the court, it is plain from the files before me, that the applicant relied upon and had brought those letters to the attention of the Legal Aid Board and Mr Ainger, and I do not doubt that he brought them to the attention of the Court of Appeal. It is certainly clear that he supplied them to the Ombudsman.
35. The applicant has informed me, as was no doubt clear to the Ombudsman, that although he makes complaint of maladiministration by the DTI in failing to carry out any proper investigation of his original complaint, he regards that as a means of getting over the hurdle of the Ombudsman’s lack of jurisdiction over, and/or rejection of, his original complaint. Similarly, his purpose in seeking investigation by the Ombudsman of his legal aid complaint and in claiming judicial review by this court of the Ombudsman’s refusal to investigate that complaint is the hope that, in the course of doing so, he will obtain collateral observations critical of EIEC and/or the DTI which will enable him to re-open his original complaint in some form elsewhere, whether by internal DTI enquiry or the Cabinet Office. While I can well understand his employment of that tactic in the face of his earlier frustration over his failure to secure investigation by the Ombudsman of his complaint against EIEC, I can equally well understand that the Ombudsman did not regard that motivation as a special circumstance justifying an investigation of the legal aid position outside the twelve month period laid down for complaint. As was made clear in Mrs Bubb’s letter of 30 July 2001, the need was for the applicant to demonstrate reasonable prospects that an investigation would produce worthwhile remedy. The third reason for the Ombudsman’s decision was said to be the destruction of the Legal Aid Board’s papers in relation to the legal aid application, which might render an investigation inconclusive. The appellant has persuaded me that there is little substance in that reason, in that he has preserved the detailed correspondence which I have read and which largely appears to speak for itself. However, there would no doubt be internal documents relating to the reasoning and actions of the Legal Aid Board which have been lost and memories of the officials concerned could not be expected to be good in respect of an application made so long ago. Thus the reasoning of the Ombudsman in that respect cannot be said to be irrational or plainly wrong.
36. Returning to the decision of the judge, subject to the observations I have made in paragraphs 26 and 27 above, I can find no error on the part of the judge. In particular I agree with Burton J that, for the reasons stated in paragraphs 19-21 of his judgment, the applicant has been guilty of undue delay in making his application to the Ombudsman in any event.
37. Finally, I would observe that I seen no hint or suspicion of bias on the part of the Ombudsman in the exercise of his discretion under s.5(2)(b) which seems to me to have been one of reason and good sense in that, whatever the applicant's motivation for seeking an investigation of the Legal Aid Board's maladministration, it can do nothing to secure for him an effective remedy for the original and continuing source of his grievance.
38. I would therefore refuse the applications in this case.
Order: Applications refused.