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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Abernethy, R (on the application of) v Local Government Ombudsman [2002] EWCA Civ 1520 (7 October 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1520.html Cite as: [2002] EWCA Civ 1520

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
ADMINISTRATIVE COURT LIST
(MR JUSTICE RICHARDS)

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

Monday, 7 October 2002

1. LORD JUSTICE DYSON: Mr Abernethy seeks to challenge a number of decisions made by Richards J on 19 April of this year. On that occasion the judge refused Mr Abernethy's application for permission to apply for judicial review of a decision by the Local Government Ombudsman, dated 30 July 2001. He also refused permission to appeal to the Court of Appeal the decision made by Keene J as to costs in July 1999. Finally, Mr Abernethy seeks permission to appeal the decision made by Richards J dealing with the costs of the application for permission to seek judicial review of the Ombudsman's report.
2. The history of this matter is complex. I shall endeavour to deal with it fairly briefly. In doing so I will inevitably not do justice to the extremely careful and thorough written submissions Mr Abernethy has made to this court which I have taken into account in reaching my decision.
3. The Ombudsman's report investigated a complaint made by Mr Abernethy against Westminster City Council in respect of the closure of its branch library at Great Smith Street and the transfer of the library to Victoria Street, which took place in January 1997. The Ombudsman rejected all of Mr Abernethy's complaints of maladministration, save for one. He found at paragraph 56 of his report maladministration in relation to the inadequate spacing between the shelves in the Victoria Street library and recommended that the Council pay £250 in recognition of injustice caused by that maladministration.
4. The case has a long history, as I have said. Mr Abernethy originally made a complaint to the Ombudsman but in March 1998 the Ombudsman refused to carry out an investigation. In January 1999 Mr Abernethy was granted leave to bring judicial review proceedings against the decision to refuse to investigate the complaint. In June 1999 the Ombudsman informed Mr Abernethy that there was now sufficient material before him to justify his consideration of the complaint; he therefore suggested that Mr Abernethy withdraw the judicial review proceedings. There is a letter dated 11 June 1999 from Messrs Pulvers Solicitors to Mr Abernethy which records the willingness by the Ombudsman to reconsider the matter, and offers terms for the withdrawal of the judicial review proceedings, namely, that Mr Abernethy consent to such withdrawal on the basis that the Ombudsman would: reconsider the complaint; and pay an agreed sum by way of costs to Mr Abernethy.
5. That offer was not accepted and the matter came before Keene J in July 1999. It came in the form of an application by the Ombudsman to set aside the judicial review proceedings. I have read the transcripts of the argument before Keene J as well as his judgment which is dated 29 July 1999. As recorded by Keene J, Mr Abernethy was opposing the Ombudsman's application on the grounds that the Ombudsman was still of the view that his earlier decision not to reconsider was correct. Accordingly, submitted Mr Abernethy, unless the court gave judgment on the judicial review proceedings, the Ombudsman would come to the same conclusion as he had done previously. Moreover, Mr Abernethy pointed out to the judge that he sought no less than nine orders, and emphasised that he was seeking an order of mandamus requiring the Ombudsman to seek assistance in this matter. This was, it seems, something to which Mr Abernethy attached importance; he regarded it as important that the Ombudsman should seek appropriate expert assistance.
6. It is right to say (as I have pointed out) that the Ombudsman was seeking an order setting aside the proceedings. In the course of argument, the judge indicated that he thought that a stay was more appropriate, and doubted whether he had jurisdiction to set aside the proceedings. Keene J said in his judgment that he was unpersuaded by any of the arguments advanced by Mr Abernethy, and proceeded to grant him a stay of the proceedings. The Ombudsman then submitted that Mr Abernethy should pay the Ombudsman's costs since he had effectively succeeded in preventing the proceedings to continue. Keene J agreed and assessed the costs at £3,000.
7. Mr Abernethy sought permission to appeal that decision. It seems he did not make such an application to Keene J. As I understand it, he made his application to Carnwath J, who adjourned the matter expressing some surprise at the order for costs that had been made by Keene J.
8. The adjourned application for permission to appeal against the costs order of Keene J came before Richards J at the end of the hearing on 19 April 2002, and after Richards J had given judgment on the application for permission to seek judicial review of the Ombudsman's report of July 2001. Richards J dealt with the application in what Mr Abernethy regards as an unjust and peremptory manner. First, Mr Abernethy says that he was unaware that this matter would be raised before Richards J at the end of a long day. He was unprepared to deal with it, and, what is more, Richards J should in any event have granted permission to appeal because the decision of Keene J was plainly wrong. In short, he says that he would have been perfectly content with a stay of the proceedings; what he was not prepared to contemplate was that his proceedings should be set aside altogether.
9. I have read with care the transcript of what took place between Mr Abernethy and Richards J on 19 April 2002. That does seem to bear out Mr Abernethy's complaint that he was taken by surprise, but it seems to me that there is no doubt that Richards J did give Mr Abernethy an opportunity of addressing him on this point, and that he listened to what little Mr Abernethy felt able to say in support of his case. I now have before me all of the points that Mr Abernethy seeks to make in challenging the decision of Keene J; accordingly, whether or not there was an element of unfairness to Mr Abernethy on 19 April 2002, he has suffered no prejudice since he has now had an opportunity to present all his arguments fully.
10. I have come to the clear conclusion that there is no real prospect that Mr Abernethy's attempt to challenge the decision of Keene J as to costs would succeed on an appeal to this court. It seems to me that Mr Abernethy was insisting that his proceedings should continue. The real issue before Keene J was whether or not to allow those proceedings to continue following the decision by the Ombudsman to reconsider the matter.  
11. As I have said, Mr Abernethy gave reasons for insisting that the proceedings should continue. The issue as to whether the proceedings should be prevented from continuing by being set aside or by a stay was, as I see it, an issue of a rather technical nature. The substantive point was whether the proceedings should be allowed to continue. Keene J was fully entitled to take the view that on that point Mr Abernethy had fought the contest and had lost. In those circumstances I see no proper basis for saying that Keene J acted outside the discretion accorded to him in determining the costs as he did. That deals with the issues relating to the order of Keene J.
12. The next issue logically, it seems to me, is the challenge to the decision by Richards J on the report itself. Mr Abernethy advanced many reasons before the judge as to why permission to apply for judicial review should be granted. Richards J identified 13 grounds and dealt with each of them, some in more detail than others. Each of the grounds was supported by very considerable written material. I have considered this matter in some detail. It would be inappropriate for me to overburden this judgment with a detailed analysis of each of the points made by Mr Abernethy. In short, Mr Abernethy submits that the Ombudsman abused (as he puts it) the discretion given to him when dealing with his complaint. The most serious complaint made below, it seems, was one concerning the way in which the Council had dealt with the question of catchment areas. But for the reasons set out in some detail by the Ombudsman and referred to by the judge at paragraphs 16 to 20 of his judgment, Mr Abernethy has not demonstrated that the conclusions reached by the Ombudsman fell outside the range of conclusions reasonably open to him. One point identified specifically by Mr Abernethy concerns his complaint that the building was opened without the obtaining of a completion certificate under the building regulations or a fire certificate. Like the judge, whatever view I may have as to the competence of the Council, I fail to see how that was something which required the Ombudsman to make a finding of injustice resulting from maladministration.
13. I well understand the strength of feeling that Mr Abernethy has about all these matters, but as I am sure he appreciates, the court could only interfere with a decision by an Ombudsman if an error of law has been identified; and I regret to say that, in my judgment, Richard J was entirely correct in concluding that no error of law had been identified.
14. I turn, therefore, to the other matter of which complaint is made, which is that Richards J made an order that Mr Abernethy should pay the Ombudsman's costs of being involved in and appearing at the hearing of the application for permission to apply for judicial review. He has referred me to authorities, some going one way, and others the other, on the question of whether a respondent, who succeeds in persuading a court not to grant an applicant permission to apply for judicial review should be awarded costs. There is no fixed rule of law. It is in the discretion of the court. It seems to me that in a complicated case of this kind, especially where the applicant is a litigant in person, it is reasonable for the respondent to appear to assist the court. It is clear from the judgment of Richards J that he was considerably assisted in reaching his conclusion by the respondent and the skeleton argument submitted on behalf of the respondent. In my judgment it was open to Richards J to order the Ombudsman's costs to be paid by Mr Abernethy, and here, too, I can detect no error of law in his approach.
15. For all these reasons I am afraid to say I have reached the conclusion that these applications must be dismissed.
(Applications refused; no order for costs).