CO/9865/2006 
Neutral Citation Number: [2009] EWHC 969 (Admin)
IN THE HIGH COURT OF JUSTICE 
QUEEN'S BENCH DIVISION  
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2 
 
Friday, 6 March 2009 
B E F O R E:

MR JUSTICE KEITH 

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THE QUEEN ON THE APPLICATION OF PARISH 
Claimant
‑v‑ 

THE PENSIONS OMBUDSMAN 
Defendant
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Mr Brian Kennelly (instructed by Royds) appeared on behalf of the Claimant
Mr David Pievsky (instructed by the Pensions Ombudsman) appeared on behalf of the Defendant
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J U D G M E N T
1.	MR JUSTICE KEITH:  The history of this litigation is set out in my judgment of 20 January 2009.  In paragraph 41 of the judgment, I identified the new point which the Ombudsman wished to take, and I expressed tentative views on the point in paragraph 42.  In paragraph 43, I explained why the point could not be decided then, and in paragraph 44, I ordered that there be a further hearing to address the new point.  This is the court's judgment following that further hearing.  
2.	Professor Parish brought two claims in the Employment Tribunal against the Health Development Agency ("the HDA").  The first claim complained that the HDA had failed to give him any reasons for his dismissal.  It is not suggested that this claim was "in respect of ..... matters" which Professor Parish was subsequently to ask the Ombudsman to investigate.  The second claim complained that his dismissal had been unfair.  The basis of his claim was that it had not been reasonable for him to have been dismissed for the reason for which he was dismissed, but in any event his dismissal had been procedurally unfair.  It is suggested by the Ombudsman that this claim was "in respect of ..... matters" which Professor Parish was subsequently to ask him to investigate.  
3.	Professor Parish's case in the Employment Tribunal, going on what his originating application stated, is that he had been dismissed because senior officials at the Department of Health had told the chair of the HDA that it was time for a change of leadership at the HDA.  The HDA's case was that Professor Parish had been dismissed for reasons relating to his performance.  He had failed to identify the role which the HDA should play in the development of public health.  He had failed to get a managerial grip on important issues which affected the HDA.  His leadership had been ineffective, and he had failed to convince the Department of Health that he had been able to articulate a clear role for the HDA.  However, the HDA was eventually to concede that his dismissal had been procedurally unfair, and that was the basis on which his claim for unfair dismissal was eventually settled.  The compromise agreement expressly acknowledged that it did not compromise any claim which Professor Parish had or may wish to bring "in respect of his pension including any claim that he is entitled to an immediate unreduced pension".  
4.	Professor Parish's claim of unfair dismissal was not worth all that much.  It was valued in a schedule of loss at £82,577.20.  That was on the basis of a compensatory award calculated by reference to his losses over 12 months.  On the other hand, the cost of enhancing his pension ‑ if what the Board of the HDA was told is anything to go by ‑ is in the region of £674,000.  It follows that in the long run the capitalised value of the pension benefits which he claims the HDA's maladministration denied him was greatly in excess of what his claim for unfair dismissal was worth.  It would be regrettable for the administration of justice if section 146(6)(a) of the Act had to be construed in a way which happened to result in Professor Parish being denied recourse to his preferred way of obtaining that to which he claims he was entitled.  
5.	I do not believe, though, that section 146(6)(a) should be construed as having that effect.  The Ombudsman's function is to investigate maladministration in connection with the management of pension schemes.  In this case, the Ombudsman was being asked to investigate whether Professor Parish's employment had been terminated "in the interests of the efficiency of the service in which he [was] employed".  That is to be contrasted with the issue which the Employment Tribunal had to consider on the second of Professor Parish's two claims in the Employment Tribunal.  The Employment Tribunal had to decide whether Professor Parish's dismissal had been unfair.  The question whether his dismissal had been unfair was not a matter which would be the subject of investigation by the Ombudsman, since the subject of his investigation was to be whether Professor Parish's dismissal came within the rubric "in the interests of the efficiency of the service".  
6.	It is, of course, true that one of the factual issues which arises in both the second claim in the Employment Tribunal and the complaint to the Ombudsman is what the true reason for Professor Parish's dismissal was.  But the mere fact that there is a factual issue which is common to both the proceedings in the Employment Tribunal and the investigation by the Ombudsman does not mean that "the matter which would be the subject of the investigation" by the Ombudsman had been "begun" in the Employment Tribunal.  
7.	I therefore find that section 146(6)(a) of the Act does not prevent the Ombudsman from investigating Professor Parish's complaints. 
8.	MR KENNELLY:  I am grateful.  Mr Pievsky and I had a brief discussion about costs.
9.	MR JUSTICE KEITH:  Before we come to the issue of costs, we must deal with the order which I should make on the claim for judicial review. 
10.	MR KENNELLY:  You have the claim form.  You have our submissions, our original skeleton argument. 
11.	MR JUSTICE KEITH:  You will have to remind me.  Is there agreement between you as to the order I should make in the event of my deciding the issue in favour of Professor Parish?
12.	MR KENNELLY:  There is not but that is because we have not discussed it.  That is our fault. 
13.	MR PIEVSKY:  That is right, but I am not sure that it will be too controversial in relation to the relief that is being sought.  First, the quashing order in respect of the 23 August decision, we are quite content with that.  And any declaration would have to be slightly amended before it is set out.  It may be that the judgment ‑ ‑ ‑ ‑ ‑ 
14.	MR JUSTICE KEITH:  The crucial issue is whether I should simply order that there should be a mandatory order requiring the Pensions Ombudsman to conduct an investigation now, or whether there is still some issue on which some residual discretion still exists which the Ombudsman wishes to consider. 
15.	MR PIEVSKY:  May I briefly take instructions? 
16.	MR JUSTICE KEITH:  By all means. (Pause)
17.	MR PIEVSKY:  Those instructing me say the logical relief should be limited to quashing of the decision that was made.  There may or may not be other factors to be considered.  The order should reflect that possibility. 
18.	MR JUSTICE KEITH:  In my judgment I said that the Pensions Ombudsman has a discretion whether to investigate a particular complaint.  In this case he had decided not to investigate it because he thought it would be decided by Mr Justice Stanley Burnton.  The basis of that decision has gone.  He also thought that he might not have to investigate it because of the claim in the Employment Tribunal.  That has gone in the light of my judgment.  If there is some other reason why the Pensions Ombudsman does not wish to investigate the complaint, now is the time to tell me because, if there is not, I can order that he investigate it.  If there is some issue that goes to his discretion other than the issues to which my two judgments have related, then I cannot order him to investigate it because that takes away his discretion.  
19.	I was seeking to find out whether or not there was still an issue of discretion he wanted to address or whether he has not considered exercising his discretion at all because he had thought his discretion did not arise because of the substantive decision of the Administrative Court and the previous proceedings in the Employment Tribunal. 
20.	MR PIEVSKY:  The concerns of which I am aware relate to the matters that have been before your Lordship.  I am not aware whether those would be matters relevant to his discretion given your findings.  That is something that would have to be very carefully considered if those remain concerns.  I am not aware of any separate concerns that have nothing to do with what we have been talking about.  The concern remains ‑ I will be corrected if I am wrong ‑ that it is going to be extremely difficult not to go on to the territory which has already been decided by Mr Justice Stanley Burnton even in the light of your judgment this morning.  That is a genuine concern my clients have.  There have been cases in which the Ombudsman has been criticised for not respecting the territory of this court.  The Ombudsman is extremely worried about doing that. 
21.	MR JUSTICE KEITH:  Are you saying that he wishes to consider whether he should exercise his discretion not to investigate because the nature of the investigation, he thinks, might inevitably result in him having to address the very question which the court has decided? 
22.	MR PIEVSKY:  Yes.  I will check that is correct. (Pause) Yes.  I am told that there would need to be a check on other matters,  such as time limits, which have not yet been considered because of the unusual way in which this matter has arisen. 
23.	MR JUSTICE KEITH:  That is not what I just put to you, but there are other matters he wants to address. 
24.	MR PIEVSKY:  .
25.	MR JUSTICE KEITH:  I understand. 
26.	MR KENNELLY:  I address you briefly on the first two points.  The first matter is: when is a mandatory order necessary in this jurisdiction ‑ ‑ ‑ ‑ ‑
27.	MR JUSTICE KEITH:  I did not hear that. 
28.	MR KENNELLY:  ‑ ‑ ‑ ‑ ‑ when is a mandatory order necessary in judicial review when dealing with a public authority?  And, secondly, the separate concerns Mr Pievsky has raised.  
29.	Normally it is rare to grant mandatory relief in this jurisdiction because the public authority will generally ‑ on the basis of a declaration ‑ do what it is ordered to do.  It is not necessary to order it to do so.  This may be one of those rare cases where, in view of what Mr Pievsky said, it is necessary for you to order the Ombudsman to re‑open his investigation into Professor Parish's complaint because what he has said, on instructions from his client, is that they had no separate concerns except that they may have to stray on to the matters resolved by Mr Justice Stanley Burnton to the very issue decided against his client in the proceedings.  In view of the fact you have handed down a judgment on that issue, it does cause grave concern that the Ombudsman should give those instructions.  
30.	In those circumstances it seems to us that it would be appropriate to take the unusual step of granting mandatory relief.  
31.	On the separate issue ‑ which is the separate concern issue ‑ you are aware, because it is reflected in your judgment, that this complaint was in fact accepted by the Ombudsman.  The Ombudsman subsequently declined to continue ‑ dropped the investigation ‑ in view of the jurisdiction point arising out of this claim for judicial review.  That was always the sole basis for declining jurisdiction.  In circumstances where the investigation had commenced, to accept it and then reject it on the sole basis ‑ the sole basis now maintained for a number of years and no issue ever being brought before this court ‑ it is not appropriate in this case now to say there is some other unparticularised issue mentioned for the first time which means that Professor Parish will not get the investigation which he has sought.   
32.	Mr Pievsky has mentioned the issue of time limits.  I believe he has his client in court.  If there are issues which will lead to the refusal to investigate this complaint we need to know what they are now.  This issue is obviously live since the judgment in January.  There is no justification for saying that it has not occurred to them until now.  If they have concerns about why they cannot continue the investigation that ought to be explained to you this morning.  In circumstances where that has not been done,  and in view of what Mr Pievsky says, it is a matter ‑ ‑ we have grave concerns that notwithstanding your judgment,  Professor Parish's complaint would be rejected for the same reasons it was rejected before.  
33.	MR JUSTICE KEITH:  Yes.  I am looking to see the claim. 
34.	MR KENNELLY:  The claim form is tab 1 in the main hearing bundle. 
35.	MR JUSTICE KEITH:  I have that.  The declaration is to the effect the Pensions Ombudsman should re‑open ..... That is not a declaration; that is a mandatory order. 
36.	MR KENNELLY:  That is a mandatory order.  It is something that ‑  in our general painful dissection of this document ‑ we discussed before the hearing that this was in fact a mandatory result being sought.  The Ombudsman was in court and had that well in mind. 
37.	MR JUSTICE KEITH:  On this point, Mr Kennelly, I am favour of Mr Pievsky.  Up to now the Ombudsman has said that he will not investigate the complaint for two particular reasons, and these proceedings have investigated the legality of those reasons.  It is unquestionably the case, and I said it in my judgment, that  he has a discretion as to whether to investigate a particular complaint.  I do not think it right to deprive him of the opportunity to exercise that discretion simply because on some legal issues he has failed.  I know he will act responsibly as someone who is amenable to the supervisory jurisdiction of the High Court, and I would not expect anything else.  But if he exercises his discretion in a way which is flawed, then the opportunities are there for you to return to court.  I do not think it right of me, in effect, to deny him the opportunity to consider whether or not his discretion should be exercised in the way which he thinks is appropriate.  
38.	The order I make is a quashing order of the decision of whenever the date of the decision was.  I also make a  declaration in the terms of my judgment today.  Can you draft a suitable declaration, in effect, that the Ombudsman is not prevented by virtue of section 146(6)(a) of the Act from investigating Professor Parish's complaint?  I think I should leave it there. 
39.	MR KENNELLY:  On the declaration Mr Pievsky and I are agreed that it should say that section 146(6) of the Pensions Schemes  Act 1983 does not preclude the defendant from investigating the claimant's complaints because of the claimant's previous claims against NICE were proceedings in respect of the matters subject to investigation. 
40.	MR JUSTICE KEITH:  Yes.  Except essentially ‑ ‑ ‑ ‑ ‑ 
41.	MR KENNELLY:  It is HDA.
42.	MR JUSTICE KEITH:  I know, or from the skeleton arguments it was ‑ ‑ ‑ ‑ ‑ 
43.	MR KENNELLY:  Yes.  The judgment ‑ ‑ ‑ ‑ ‑     
44.	MR JUSTICE KEITH:  That deals with the orders I make.  The issues as to costs? 
45.	MR KENNELLY:  Professor Parish asks for his costs in these proceedings.  There are three stages.  The first is the judicial review which took us to the judgment of Mr Justice Walker.  His decision was to grant permission to make a claim.  He made an order for costs which was that even if successful we could not have our costs and that order stands. 
46.	MR JUSTICE KEITH:  Mr Justice Walker's order for costs was what?
47.	MR KENNELLY:  To the effect that even if ultimately successful Professor Parish would not have his costs. 
48.	MR JUSTICE KEITH:  Of what? 
49.	MR KENNELLY:  Of that hearing.
50.	MR JUSTICE KEITH:  Just that hearing?
51.	MR KENNELLY:  Yes.  We ask for our costs on the basis  notwithstanding what you say about the contribution made by our side on some of the confusion which led to the proceedings in this court.  We have your comment well in mind in that respect.  
52.	The fact remains based on your judgment that whatever the confusion, the ultimate answer was that by February ‑ but on your Lordship's view, in any event, April 2006 ‑ it should be clear to the Ombudsman that Professor Parish's complaint had changed and that that changed complaint was not barred by the decision of Mr Justice Stanley Burnton to dismiss the claim for judicial review.  We get that from paragraphs 34 and 35 of your judgment; at paragraph 34 you refer to the 16 February letter; at paragraph 35 at the first line you refer to the 6 April 2006 letter and your conclusion on that submission that by 6 April 2006 at least it ought to have been clear to the Ombudsman that Professor Parish's case had changed and that he was entitled to investigate his changed case.  That was April 2006.  This claim was issued ‑ ‑ these judicial review proceedings were in August 2006.  Whatever the confusion, it preceded April 2006.  By 23 August 2006 it ought to have been clear that the complaint had changed and that the Ombudsman was entitled to investigate it.  
53.	On the third part, on the costs incurred in preparing for this issue of jurisdiction, clearly we ought to have our costs of this because it was raised very late in the day.  We  had to address it and did succeed on it.  There is no criticism.  The correspondence is there.  
54.	If you are against me on the second part, on contributions ‑ ‑ ‑ ‑ ‑ 
55.	MR JUSTICE KEITH:  Yes.  Paragraph 37 of my judgment contained quite significant observations that go to the issue of costs.
56.	MR KENNELLY:  Indeed.  We read them with that well in mind.  If, on that basis, you wish to discount the costs that should be borne by the Ombudsman we would say it would be unfair to take more than a third of Professor Parish's costs away on that basis.  It is a substantial acknowledgement that in that part the Ombudsman can be forgiven for the error which led to proceedings.  But knowing that ‑ first ‑ ultimately your Lordship is with us on the point that the Ombudsman ought to have known, notwithstanding correspondence, that he was entitled to investigate after April 2006.  
57.	Secondly, the Ombudsman is the public authority in this case, well aware of his rights and powers and duties under the Act and of the duty to scrutinise correspondence, even correspondence that is not as clear cut as it ought to have been.  Therefore it would be inappropriate, in my submission, effectively to punish Professor Parish by more than that amount for the costs.
58.	MR JUSTICE KEITH:  At the end of the day Professor Parish himself  will not be out of pocket, because I do not suppose that his solicitors would think it right to charge him for any costs which he does not recover from the Pensions Ombudsman.  
59.	MR KENNELLY:  Absolutely.  That is a decision ‑ ‑ ‑ ‑ ‑
60.	MR JUSTICE KEITH:  That is, of course, a decision between Professor Parish and his solicitors.  I want them to hear  what I say.  
61.	MR KENNELLY:  In fairness to my solicitors, I have no doubt that that would be the position in any event.  
62.	MR JUSTICE KEITH:  I will tell you what I had in mind as being the appropriate order for costs, subject to what you say; that is, leaving aside the costs dealt with by Mr Justice Walker, Professor Parish should have his costs that have been incurred since the date of the judgment, in other words to cover the new issue, but that there should be no order for costs before then.  If that was the order, I would expect Professor Parish's solicitors not to charge him for the costs that he has not been awarded by me.  That is my thinking on that.  The latter observation is not part of the order.  I just pass it up as being my view.  The order I have in mind is no order for costs save as to the costs incurred since then. 
63.	MR KENNELLY:  On the latter point, so there is absolutely no doubt, and you should not be at all minded or under pressure to make that observation ‑ and my solicitors were thinking on similar lines for a long time in any event ‑ there is no need to ‑ ‑ ‑ ‑ ‑
64.	MR JUSTICE KEITH:  I am sure.  They are a responsible firm of solicitors.
65.	MR KENNELLY:  Absolutely. 
66.	MR JUSTICE KEITH:  They know where their duty lies. 
67.	MR KENNELLY:  Indeed.  On the first point, in my submission, that does go too far.  I hear what your Lordship says about the contribution and the correspondence and the language you used in respect of that.  To deprive Professor Parish of all of his costs goes too far because the fault does not justify such a swingeing penalty.  This boiled down to a short period of time and two or three pieces of correspondence.  The principle that the correspondence should have made clear was there and the ombudsman completely failed to engage in correspondence.  The Ombudsman did not read those letters carefully enough.  Therefore there was a shared fault which brings us to this court today.  
68.	MR JUSTICE KEITH:  I think that puts it very well.  I think there is shared fault.  I think the letters from Professor Parish's solicitors were nowhere clear enough, and I think that they were not read as properly as they might have been.  Shared fault results in you not having to pay their costs and they not having to pay your costs.  Shared fault lies in both sides having to pay its own legal costs.  That is how I came to the provisional view about it. 
69.	MR KENNELLY:  I see where your Lordship is.  I also say, in fairness, one last point which is that properly to share the fault in respect of an issue on which we have succeeded ‑  ultimately we have won ‑ therefore it is inappropriate for us  to recover no costs.  It is effectively no costs in this case where the fault of my solicitor was the matter of one or two pieces of correspondence, and it would be inappropriate, in my submission, not to recover any costs.  May be we ought to recover 20 per cent, 25 per cent, but none at all except this narrow issue goes too far. 
70.	MR JUSTICE KEITH:  Mr Pievsky, do you think you can do any better than what I have suggested?
71.	MR PIEVSKY:  Almost certainly not.  There are one or two points I would make.  We say there should be no order as to costs in relation to all matters which preceded your first judgment. 
72.	MR JUSTICE KEITH:  That is what I have in mind.  If you are not going to argue against that then I need not trouble you.
73.	MR PIEVSKY:  I was going to point out some matters in support, but if you are not troubled I shall not mention it. 
R U L I N G  O N  C O S T S 
74.	MR JUSTICE KEITH:  The order for costs that I make is that save for the costs of the hearing before Mr Justice Walker which have been dealt with in Mr Justice Walker's order for costs, there be no order as to costs save that the Pensions Ombudsman must pay Professor Parish's costs of the claim for judicial review since my judgment of 20 January 2009.  Those costs are to be the subject of a detailed assessment.  Are you content with a summary assessment of those costs?  
75.	MR KENNELLY:  We are not in a position to deal with summary assessment today.  We had anticipated detailed assessment in any event. 
76.	MR JUSTICE KEITH:  No.  Cases should not go for a detailed assessment if it is not necessary and if it was an appropriate case for summary assessment.  Why should I not summarily assess the costs?  I cannot because I do not have a schedule of costs.  I cannot summarily assess costs.  What I can do ‑ because I do not think it is appropriate for the inter partes costs that I have ordered to be the subject of detailed assessment ‑ is for me to say they should be the subject of summary assessment, that summary assessment to be carried out by a costs judge in the event of it not being agreed.
77.	MR KENNELLY:  That is sensible.
78.	MR JUSTICE KEITH:  It may be sensible.  There is a practice direction which says that judges should not put off to a costs judge summary assessments that they should do.  Technically, I ought to adjourn it so I can do the summary assessment.  On this occasion I think on this case what is recommended should not be followed.  What do you wish to say, Mr Kennelly?
79.	MR KENNELLY:  Yes.  
80.	MR PIEVSKY:  We are content with that.
81.	MR JUSTICE KEITH:  Is there anything else? 
82.	MR KENNELLY:  No.
83.	MR PIEVSKY:  No.
84.	MR JUSTICE KEITH:  Thank you both for your help in a case which I found interesting.