England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL

		Royal Courts of Justice Strand London WC2 Thursday, 21st March 2002

1. SIR SWINTON THOMAS: This is an application for permission to appeal against an order made by Mr Justice Turner on 21st January 2002 whereby, first, Mr Abernethy's application to reactivate and amend his stayed application for judicial review against a decision of the Local Government Ombudsman to refuse to investigate Westminster Council's re-organisation of some of its library services was dismissed and, second, the ombudsman's application for dismissal of the stayed application for judicial review was granted. The judge indicated that it was open to Mr Abernethy to start fresh proceedings if he chose to do so and gave directions in relation to those proceedings. Mr Abernethy told me this morning that he has commenced those fresh proceedings.
2. The dispute relates to Westminster City Council's decision to close its library in Great Smith Street and to open a replacement in part of the City Hall in Victoria Street. Mr Abernethy was a regular user of the Great Smith Street library and he disagreed very strongly with the decision made by the council. He believed that the process whereby the council had reached its decision to close the library was flawed and defective in a number of ways which will I endeavour to summarise briefly as follows:

(A) The Education and Leisure Committee Report of 12th June 1996 on which the council based its decision was biased in that -

(1) it wrongly defined the catchment areas of the local libraries;

(2) it was based on inaccurate and inadequate user surveys;

(3) it was based on inadequate consultation;

(4) it over-estimated the likely proceeds of the sale of the Great Smith Street library;

(5) it wrongly stated that public lavatories would be available at the new library; and

(6) inadequate consideration was given to the design of the new library, to the Disability Discrimination Act 1995, the building regulations and the DES Building Bulletin 60.

(B) The council's consultation process about the proposed layout of the new library was inadequate and an appendix showing the relevant catchment areas was omitted from the committee report put on display to the public at Great Smith Street library.

3. On 10th October 1996 Mr Abernethy complained about the council's decision to the Local Government Ombudsman. The ombudsman - in two letters dated 8th January 1998 and 12th March 1998 - refused to investigate the complaint principally because he considered that Mr Abernethy had suffered no significant injustice as a result of the council's decision.
4. On 29th May 1998 Mr Abernethy applied for permission to apply for judicial review of this refusal. On 14th January 1999 Mr Justice Turner granted permission and, in the course of that grant, he said:

"The case seems to me to be arguable, both on the basis that the Commissioner has not properly reasoned or stated his conclusions on the facts and may have misdirected himself in law in concluding that in a case where there was `no significant injustice' he need not further investigate. Those are two arguable points."

5. On 11th June 1999 the ombudsman wrote to Mr Abernethy telling him that there was now sufficient material before him to justify reconsidering the complaint, and suggesting that the application for judicial review could be withdrawn. Mr Abernethy did not agree with that proposal and he did not withdraw the application.
6. The ombudsman accordingly applied to have the permission granted by Mr Justice Turner set aside. That matter came before Mr Justice Keene on 29th July 1999 who held that Mr Abernethy had obtained the substantial relief that he sought from the judicial review proceedings, and therefore Mr Justice Keene ordered that the proceedings should be stayed sine die with liberty to apply to both sides and Mr Abernethy should pay £3,000 in respect of the ombudsman's costs. Mr Justice Keene did not dismiss the proceedings because he took the view that the ombudsman had not yet considered the complaint, with the result that his offer was not binding.
7. The ombudsman did investigate the complaint and after comparing a number of drafts sent to Mr Abernethy for comment he issued his final report on 30th July 2001. In this report the ombudsman came to the conclusion that the decision to relocate the library was not reached with maladministration. He did find that there had been various failings on the part of the council. The council had failed to allow sufficient time for proper consultation and had from January to December 1997 provided insufficient spacing between the shelving in the new library. The ombudsman considered that these failings had caused Mr Abernethy an injustice and awarded him £250 compensation.
8. Mr Abernethy was not satisfied with that report, and so he applied for the stay ordered by Mr Justice Keene to be lifted and for the existing judicial review proceedings to be amended to review the ombudsman's final report in addition to the initial refusal to investigate. The ombudsman then applied for the application for judicial review to be struck out. Those applications came before Mr Justice Turner on 21st January 2002 and he found - (a) the relief originally sought by Mr Abernethy had effectively been granted, (b) the decision now sought to be reviewed was completely different to the original decision, (c) the proceedings by way of amendment instead of a fresh application for judicial review had the disadvantage of denying the court and the parties the benefit of acknowledgement of service which would help to define the matters in issue from the ombudsman, and (d) Mr Abernethy would not be prejudiced by being compelled to make a fresh application since the ombudsman had indicated that he would not take any point on the time limit for making such an application.
9. Mr Justice Turner therefore ordered that Mr Abernethy's application to lift the stay and amend should be dismissed and that the application for judicial review should itself be dismissed. He ordered, further, that Mr Abernethy should serve his fresh application for judicial review within 21 days and reserved the issue of costs approved to the judge hearing the fresh application.
10. It is against that order Mr Abernethy seeks leave to appeal. He has set out his grounds of appeal succinctly in his notice dated 24th January 2002. That notice of appeal shows that he is appealing because -

"(1) There is a compelling reason for an appeal to be granted.

(2) The decision was wrong and unjust because of serious procedural irregularity.

(3) The decision infringes my right to fair trial (ie a substantive judicial review) under Schedule 1, Article 6, para 1 of the Human Rights Act 1998.

(4) The decision fails to meet the overriding objective to deal with the case justly."

11. Mr Abernethy has provided this court with a skeleton argument and also a supplementary skeleton argument. In the skeleton argument he makes the following submission in support of his grounds which I hope I will summaries accurately.

(A)There is a compelling reason for the appeal to be granted: it is very important, Mr Abernethy submits, for this appeal to be granted because if it is not no judicial decision will be reached on the arguable point of law - adverted to by Mr Justice Turner when granting permission for judicial review on 14th January 1998 - whether the ombudsman can legitimately, under the Local Government Act 1974, refuse to investigate a complaint on the grounds the complainant has suffered no significant injustice.

(1) The point should be dealt with in this case to prevent the ombudsman using the technique employed in this case of offering to reconsider his decision to avoid the point being decided in other cases in which it arises.

(2) The point is important since it, no doubt, affects a large number of complainants and decides whether many instances of maladministration should go uninvestigated and unremedied.

(3) Mr Abernethy's position on the point is strong. First, the ombudsman's test has resulted in much maladministration then ininvestigated and unremedied contrary to the purpose of the legislation providing for the ombudsman to prevent injustice as revealed by Section 31 (2) (b) of the Local Government Act 1974. Second, the test results and complaints which initially appeared to involve no significant injustice turn out, upon investigation, to involve considerable maladministration, such as this one, going uninvestigated. Third, the Parliamentary Ombudsman does not employ the same tests as the ombudsman although the legislation covering the two posts is in identical terms (compare Section 5 of the Parliamentary Commissioner Act 1967 and Section 26 of the Local Government Act 1974). In neither Act is the word "injustice" qualified in any way.

(B) Serious procedural irregularity: Mr Abernethy submits that Mr Justice Turner's use of his inherent jurisdiction to strike out the application for judicial review was contrary to the spirit of the Civil Procedure Rules, Rule 54.13, which forbids the setting aside of permission to apply for judicial review and was aimed specifically at preventing applications such as that made by the ombudsman in this case.

12. Furthermore, the jurisdiction to strike out should only be used if it is the only way of dealing with the case justly. In this case there was a more just way, Mr Abernethy submits. Mr Justice Turner could have removed the stay and limited the scope of relief sought in respect of the initial refusal to investigate to a declaration that the refusal was unlawful. The second route was available to the court. An action for a declaration is available even when there is no dispute between the parties, for example, Islington Local Borough Council v Camp (20th July 1999), and was in tune with the overriding objective and the public interest.

(C) Human Rights: Mr Abernethy submits that his right to a fair trial was infringed by Mr Justice Turner when he struck out the substantive application for judicial review of the ombudsman's initial refusal to investigate. Furthermore, Mr Abernethy's right to a fair trial is likely to be infringed in future by the ombudsman if he continues to apply the "no significant injustice" test.

13. Mr Abernethy has submitted a supplementary skeleton argument which he referred to in his submissions this morning. He invited my attention to a publication - the Guide to Local Government Ombudsman Service by Mr Laws, who was himself the Commissioner for Local Administration - and, in particular, certain paragraphs in that report, one, dealing with the approach to the question of injustice. I will, accordingly, deal with those arguments put forward by Mr Abernethy in turn.
14. First, in my judgment, there is no compelling reason to grant permission to appeal in this case. It is not arguable, in my view, contrary to what was Mr Justice Turner's preliminary view at the initial hearing, that the ombudsman cannot refuse to investigate on the basis that no significant injustice was caused. On the contrary, that basis for refusal is obviously sound. Given the ombudsman's focus on investigating maladministration which causes injustice (see Section 21 (1) of the Local Government Act 1974 and the limited resources inevitably available to the ombudsman, it is clearly right that he must prioritise the investigation of those complaints which appear to him to involve significant injustice as opposed to those which do not. Further, it is clear from Section 26 (10) of the Local Government Act 1974 (Re Fletcher's application [1970] 2 All ER 527 and The Queen v The Parliamentary Commissioner for Administration ex parte Dyer [1994] 1 WLR 621) that the ombudsman has a very wide discretion when deciding whether to investigate as the Parliamentary Ombudsman also does. The "no significant injustice" test clearly falls within that discretion.
15. Second, Mr Justice Turner's order was not procedurally defective. First, it was not contrary to the spirit of Civil Procedure Rule 54.12 to dismiss the application for judicial review because that rule deals with setting aside permission to apply for judicial review and says nothing about dismissing applications themselves and, moreover, is completely neutral as to the exercise of the court's powers under Rule 3 in its inherent jurisdiction. Second, it was entirely in accordance with the overriding objective to strike out the original claim since the substantive dispute in relation to the initial refusal to investigate had been resolved and the remaining point was of no merit. Mr Justice Turner in paragraph 12 of his judgment said:

"In those circumstances, the appropriate order for this court to make is that the original proceedings now be dismissed, as there is no continuing substance to them ..... "

16. That is an important finding.
17. In the course of his submissions, which I fully understand, Mr Abernethy submitted that there were points which ought to be resolved in the public interest. The courts do not investigate points of law which are merely freestanding without there being any remedy at the end attached to it.
18. Finally, there was, in my view, plainly no infringement of Mr Abernethy's rights under the Human Rights Act. He obtained the substance of what he had sought in his initial application and he cannot properly use Article 6 to compel the court to consider his important point which, in my judgment, is now of no substantial importance to the present dispute between the parties.
19. Accordingly, for those reasons, despite Mr Abernethy's forceful arguments, both in his skeleton arguments and his submissions, this application for leave to appeal must be refused.
Order: Application refused