England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice The Strand London WC2A 2LL
		24 November 2008

MR JUSTICE CRANSTON:

1. This is a renewed application for permission to apply for judicial review. The claimant seeks permission to challenge a decision dated 25 February 2008 of the Commissioner for Local Administration (whom for convenience I shall refer as the Local Government Ombudsman). That decision related to the conduct of the South Bedfordshire District Council ("the council"), the interested party in the proceedings.
2. The underlying dispute relates to a chimney structure at Nos 14-16 Dudley Street, Leighton Buzzard. The claimant has explained to me the nature of the chimney structure. He says that there are in effect two chimney structures at No 14 and No 16. He has explained that in as much as the council has dealt with this matter over the years, they have misrepresented the situation as to the defects in the two chimney structures. He says that at one point they misrepresented the position that works carried out on his house, No 14, would be sufficient to obviate any danger. He says that the council misrepresented that works had been carried out at No 16, his neighbours' property. He says that the concern with the structure relates not simply to the chimneys, but also to the shared roof, to the party wall and to the terrace walls. He says, in addition, that the reasons that he will not and cannot carry out the repairs to his chimney at No 14 are threefold: first, that it would be a hazard to do so (which relates to the need to have temporary support); secondly, that the works that the council have demanded will not deal with the danger; and thirdly that, absent works being carried out at No 16, the carrying out of works at his property at No 14 will be of little effect.
3. As I shall explain, these are not matters for this court. There is no need to deal in great detail with the history of the relationship between the claimant and the council. It suffices to say that the dispute has been ongoing for almost a decade. In February 2002, however, the claimant took action in the Milton Keynes County Court where he sought an injunction against his neighbours at No 16, against his neighbours' builder, and also against the council, to restrain the undertaking of work in relation to the chimney structures. Ultimately, the application for the interim injunction was renewed in amended form so that the council was removed from the proceedings. The County Court came to a conclusion which related to the application of the Party Wall Act in relation to the dispute between the claimant and his neighbours at No 16.
4. Subsequently there was a mediation agreement between the claimant and his neighbours to try to resolve the differences. This came to nothing. The claimant pursued his claim against the council, that the chimney structure was in a dangerous condition. He complained also about the work that was supposed to be undertaken by his neighbours on their chimney structure. Various inspections were carried out. For example, in January 2003 there was an inspection after which the council wrote to the claimant to advise him to carry out measures to repair what they saw as a danger. They informed him that they would consider enforcement action if he did not act. By January 2004 the Local Government Ombudsman was involved. He came to the provisional conclusion that it was not a complaint which he (the Local Government Ombudsman) could take further, despite further representations by the claimant. The claimant sought judicial review in late 2004. His application was refused by a High Court judge.
5. In 2006 the council served a section 77 Notice on the claimant in relation to what they said was a dangerous chimney stack. That notice, issued under the Building Act 1984, gave the claimant 28 days within which to advise the council that adequate steps had been taken to remove the source of danger.
6. In August 2006 the claimant issued a claim in the Milton Keynes County Court in which he sought damages not exceeding £100,000 against the council. In paragraph 3 of the particulars of claim he alleged that the chimney structures of both Nos 14 and 16 Dudley Street were not structurally stable. In the course of the particulars of claim he also alleged that the defendant council had reneged on a commitment to effect a repair of the chimney structure shared between his property at No 14 and that of his neighbour at No 16 Dudley Street. It was also said that the council perversely misrepresented that the chimney structure (including the part shared with his neighbour) had been made safe by the works which on the claimant's account had been supposedly undertaken.
7. The council defended the claim and sought summary judgment. In December 2006 a district judge struck out the claimant's claim as disclosing no reasonably arguable ground. An application for judicial review, made by the claimant to the High Court, was refused on the papers. The claimant renewed that application.
8. Meanwhile, in January 2007 the council had obtained an order against the claimant in the magistrates' court to effect repairs to the chimney structure. The judgment of His Honour Judge Serota QC is lengthy and thorough. Ultimately, as a result of that judgment there was an order which required the claimant to carry out the remedial work set out in the order. In the course of the judgment the judge said that the claimant had not helped his case. His behaviour was unreasonable and he had become obsessive. At paragraph 52 of the judgment the judge quoted what the council said:

"We do not believe the chimney stack or the brickwork within the roof space is dangerous. Furthermore, we have no evidence to suggest that the brickwork to either chimney stack or roof space associated with No 16 Dudley Street is in disrepair. We accept that work is required to the chimney stack and brickwork within the roof space associated with No 14 Dudley Street."

9. The judge went on to say that he had some difficulty in accepting that that was completely accurate, although it reflected the belief of the writer. He said that some remedial work had been carried out to the chimney stack at No 16, but that it was no longer possible to inspect the chimney structure in the roof space in No 16 by reason of the stud wall in the unauthorised loft conversion. The judge said that there was no evidence that it was in disrepair in 2002, so there was no reason to believe that its condition had improved since because no work had subsequently been carried out. The claimant says that that underlines the point that he made in relation to misrepresentation, although Mr Harris for the council made clear that he did not accept allegations of misrepresentation against the council. The judge went on to say in his judgment that the claimant had made unfounded complaints about the Local Government Ombudsman.
10. In September 2007 the Local Government Ombudsman made his final decision. In his letter the Ombudsman recounted that the claimant maintained that the only complaint was with respect to the chimney of No 16 and that he had not sought a remedy through the courts in relation to that. The Ombudsman said, however, that the County Court claim in 2006 had stated:

"The defendant perversely misrepresents that the chimney structure in any part, but especially that part shared with and used by the claimant's neighbour at 16 Dudley Street, is repaired, renovated, fit for its purpose or stabilized by the required works of its commitment. The claimant asks for damages resulting from the defendant's perverse misrepresentation."

The Local Government Ombudsman concluded that it was clear that the claimant had sought a remedy through the courts for the substantive element of his complaint. Because of that he could not consider the complaint, even though the County Court claim had not had the outcome hoped for.

11. My task today is to review the decision of the Local Government Ombudsman, that he had no jurisdiction to investigate this complaint. The law in relation to this matter is set out in statute. The relevant provisions of the Local Government Act 1974, as amended, provide in section 26(1) that there is a power of the Local Government Ombudsman to investigate a complaint by a member of the public who has claimed to sustain injustice in consequence of maladministration by, for example, this council. I underline the point that this is a power but not a duty of the Commissioner. Section 26(6) of that Act prevents the Local Government Ombudsman from conducting an investigation into a complaint in respect of an action where the person aggrieved has or had a right of appeal, a right of reference or a right of review before a tribunal or a court of law. There is a proviso to section 26(6) which enables the Commissioner to conduct an investigation, notwithstanding the existence of such a remedy, if the Commissioner is satisfied that in the particular circumstances it is not reasonable to expect the person aggrieved to resort to the remedy.
12. Generally speaking, however, the situation is that once an individual who complains about maladministration by a local government authority has taken legal action, that effectively bars him from having the matter dealt with by the Ombudsman. The underlying policy is clear. The claimant has a choice: either to proceed before the Ombudsman and have the matter dealt with by his informal investigative techniques; or to take legal action. Once legal action is taken, the right to pursue a complaint before the Local Government Ombudsman is effectively barred.
13. The present issue is whether the Local Government Ombudsman acted rationally in deciding that he could not pursue the complaint advanced by the claimant. Given the statutory provisions which I have outlined, and given the proceedings before the courts which the claimant has instituted, in particular the proceedings in 2006 before the County Court, it seems to me that the Local Government Ombudsman acted in the only way he could in declining to take the claimant's complaint further. The statutory provisions are there. The Ombudsman has applied them. Accordingly, I refuse permission.

MR HARRIS: My Lord, I would make an application for costs. Your Lordship should have a schedule of costs.

MR JUSTICE CRANSTON: Yes.

MR HARRIS: That is in relation to the preparation and submission of the events and responding to the additional papers which were submitted. There is also a schedule provided by the council, and that again deals with the acknowledgement of service and the subsequent submissions that were made.

MR JUSTICE CRANSTON: Yes.

MR HARRIS: It does not, however, cover some attendance. I think my Lord will be aware that this matter was listed two weeks ago today before Dobbs J --

MR JUSTICE CRANSTON: Yes.

MR HARRIS: -- and the matter was called on late in the day. At that time, when the matter was called on, Mr Evison then handed me his skeleton argument. That was the first time I had seen it. It was indicated that that was not terribly appropriate. He then started to make his renewed application and started to refer to items that were not included within any of the papers that Dobbs J had. She waved the bundle at me and said, "Can you take me through this?" I had to point out that I did not have the benefit of that at that time, my Lord.

MR JUSTICE CRANSTON: Yes.

MR HARRIS: As a result, the matter was adjourned off for Mr Evison to ensure that all the parties and the court had the same bundle and the same papers that were going to be referred to.

MR JUSTICE CRANSTON: Well, I am not sure what we actually did at the end of the day, but that is water under the bridge.

MR HARRIS: Yes. So that is the reason why the amounts that we have sought are in total there. It is understood and appreciated, of course, that it is a matter where your Lordship has a discretion as to what he thinks is appropriate.

MR JUSTICE CRANSTON: Yes. I am struggling to find the Ombudsman's costs. I have your costs of £5,231.

MR HARRIS: My Lord, can I hand a copy of that up?

MR JUSTICE CRANSTON: So they are claiming £4,000 and the council are claiming £5,000? Do you want to help me any more on this? You have made the application.

MR HARRIS: I have made the application. My Lord is aware that this matter has been going on and on and on. It is Mr Evison's third bite at the cherry on this particular matter before the Administrative Court.

MR JUSTICE CRANSTON: Normally you would only get the cost of the preparation of the acknowledgement of service, but you are saying that because you came back twice you are entitled to a bit more?

MR HARRIS: In effect, the matter two weeks ago was a wasted day.

MR JUSTICE CRANSTON: And you say that was because Mr Evison tried to advance further documents at that late stage?

MR HARRIS: Yes, and had not provided the other parties with copies of the documents that were with the court. On coming into court he handed to me his skeleton argument.

MR JUSTICE CRANSTON: What about the Local Government Ombudsman? (To a note-taking representative of the Local Government Ombudsman) Do you want to say anything about the costs here?

THE REPRESENTATIVE OF THE LOCAL GOVERNMENT OMBUDSMAN: What, today?

MR JUSTICE CRANSTON: Well, generally. You have the acknowledgement of service, but you are also claiming additional work. Are you saying you are in the same position, that you had to turn up twice?

MR HARRIS: I think I can say that as far as the Local Government Ombudsman is concerned, nobody turned up last time but did turn up today when some papers were faxed through at a very late stage. So certainly costs have been incurred. I appreciate that the court is reluctant to award costs, but this is a renewed application.

MR JUSTICE CRANSTON: Yes. Mr Evison, what do you say about this?

THE CLAIMANT: On the matter of costs, I refer to the judgment of His Honour Judge Serota where he says that the council has not been entirely accurate on these matters. He also says --

MR JUSTICE CRANSTON: The difficulty with that, Mr Evison, is that he said the same about you.

THE CLAIMANT: He said they are not entirely accurate.

MR JUSTICE CRANSTON: Yes, but the judge said the same about you.

THE CLAIMANT: The reason is, my Lord, that we have been talking about two different chimney structures. His Honour Judge Serota said about me that I spoke maliciously, malignantly and was obsessive about No 14's missing chimney breast, whereas, in fact, I was really actually describing the facts about No 16's chimney structure. He did not appreciate that. His Honour found that the council had been inaccurate and not consistent -- inconsistent -- and he halved the costs on account of that. I wonder if the same could be said here?

MR JUSTICE CRANSTON: Mr Harris, in a sense you are the interested party obviously, but just explain to me why you had to be here twice round as it were?

MR HARRIS: I am sorry, my Lord?

MR JUSTICE CRANSTON: Just explain to me why you have come twice.

MR HARRIS: I came last time --

MR JUSTICE CRANSTON: I know obviously that you have been maligned, as you see it --

MR HARRIS: I think that is part of the problem, the same as when the council handed on Mr Evison's previous application to the court. On that occasion, I might say, it was just as well that the council was here because Mr Evison clearly sought to encourage the court to believe that he had won his appeal. He believed he had won his appeal. That is the impression he had, and throughout the proceedings the council became aware that he chose bits which, taken out of context, sought to assist his case. The council's view was that it was necessary and important to try to make sure that the court was not under any misapprehension as to what had taken place as far as these matters were concerned. One accepts, not least given the decision on paper, which was very clear -- that is in the bundle at page 369 -- "No. This has no merit". Well, it was Mr Evison who elected to renew his application. Clearly he was entitled to do that under the rules and provisions, but one wonders --

MR JUSTICE CRANSTON: When did you put in your acknowledgement of service?

MR HARRIS: Certainly within the necessary time limit.

MR JUSTICE CRANSTON: I am just looking because on the last page, there is the figure in the acknowledgement of service, which you are certainly entitled to, £1,737, there is no doubt about that. Then you say, "Post-acknowledgement of service", and you have almost £3,500. Now, what did all that involve?

MR HARRIS: Well, unfortunately what happened, which is not uncommon in dealing with these matters with Mr Evison, he will set out what he says is his case and we will put in a response, and then he will say, "No, no, no. Here is another 30 or 40 pages". He raises new issues which then have to be dealt with.

MR JUSTICE CRANSTON: Yes.

MR HARRIS: So in effect he extends his argument and the choice is: ignore it or deal with the matters as reasonably as you can. Sometimes, I acknowledge, it is quite difficult to be overly brief in dealing with some of the matters which Mr Evison raises because they do go off at several different tangents and they have to be dealt with. So I think on this particular matter, following the original claim made by Mr Evison, I think there were three further sets of documents.

MR JUSTICE CRANSTON: Do you want to say anything more about this?

THE CLAIMANT: I would like to say something more.

MR JUSTICE CRANSTON: Very briefly.

THE CLAIMANT: Not on costs, my Lord.

MR JUSTICE CRANSTON: On the costs, yes, nothing else.

THE CLAIMANT: Nothing else?

MR JUSTICE CRANSTON: You can say something about the costs, but I do not want to hear anything else about the case.

THE CLAIMANT: No, my Lord.

MR JUSTICE CRANSTON: In terms of the council, it seems to me that they are entitled to the costs of the acknowledgement of service, £1,737.96. It seems to me as well that they are entitled to costs subsequent to that. It is very difficult to decide how much that should be. I take the point that, as they see it, there are misrepresentations that have to be countered, but I note that the defendant did not feel that he had to attend. That being the case it seems to me that an appropriate sum in addition to the acknowledgement of service amount of £1,737.96 is £2,500.

In relation to the Ombudsman, they are entitled to the costs of the acknowledgment of service. I am not going to give them the full costs of that because, unfortunately, there were a couple of inaccuracies in the acknowledgement of service. For example, they cited a decision which the library of this court cannot find and which I did want to see. So I am going to give them costs of £1,750, rather than the full costs of the acknowledgement of service. They are entitled to some post-acknowledgement of service costs as well. It seems to me that the appropriate sum is £1,500. Thank you very much.

_____________________________