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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Balchin & Ors, R (on the application of) v Parliamentary Commissioner For Administration [1999] EWHC Admin 484 (24th May, 1999) URL: http://www.bailii.org/ew/cases/EWHC/Admin/1999/484.html Cite as: [1999] EWHC Admin 484 |
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1. MR
JUSTICE DYSON: Mr and Mrs Balchin were at all material times the owners and
residential occupiers of 'Swans Harbour', Beech Rd, Wroxham, which immediately
abuts the line of a road proposed to be constructed pursuant to the Norfolk
County Council (Side Roads) Order 1990, and an associated compulsory purchase
order and scheme ('the Orders'). They objected to the Orders on the grounds of
the impact of the route on their house. A public local inquiry was held in
1990. The Inspector reported to the Secretary of State for Transport. In his
report of 2 February 1991, he concluded that the decision should be in favour
of the Eastern Route, and he recommended that the Orders be confirmed. At
paragraph 11.47, he drew attention to the "particularly adverse effect" which
the Eastern Route would have on Swans Harbour and another property, and he
expressed the hope that the plight of the owners of these two properties would
be looked on sympathetically by the Norfolk County Council ('the Council').
2. The
position at that time was that there was power in a highway authority to
acquire by agreement land the enjoyment of which was seriously affected by the
carrying out of highway construction works, or the enjoyment of which was
seriously affected by the use of a highway which the authority had constructed
or improved (section 246(2) of the Highway Act 1980). The Act was amended
with effect from 25 September 1991 when section 246(2A) came into force. This
amendment was introduced by section 62 of the Planning and Compensation Act
1991, and it provided that:
3. The
new provision was accompanied by Circular 15/91 from the Department of the
Environment, which is an explanation of the 1991 Act, and which stated:
4. On
17 January 1992, the Department of Transport ('DOT') issued a press release
about the extended powers to buy property affected by road building conferred
by section 246(2A). Attached to the press release was a copy of the guidelines
that had been issued by the DOT as to how it would exercise its discretion to
purchase under the new statutory power. Paragraph 1 stated that the Department
would use its discretion in any case where it judges that it would be
intolerable for the occupier to remain in the property during the works or once
the road was open.
5. In
March 1992, officials in the Local Authority Orders Section ('LAOS') started to
consider the Inspector's report. On 20 May, a case officer in LAOS prepared a
detailed submission for the Minister and recommended that the Orders be
confirmed, stating
inter
alia
that the objectors (who included the Balchins) had expressed the view that the
Council should be directed to purchase all the properties seriously affected by
the proposals. The Minister was made aware of the plight of the Balchins. In
May 1992, he described their situation as "very tough", and he was moved to ask
how the DOT "could ensure that the council helps". A background note was
prepared for the Minister which emphasised that the question of compensation
was strictly a matter between the Balchins and the Council. The note also
stated that Mr Balchin might be entitled to claim compensation under Part I of
the Land Compensation Act 1973, but that such claims were not normally made
until 12 months after the date on which the new road was opened. This was
plainly not a reference to the 246(2A) power.
7. The
Minister copied this correspondence to the Chief Executive of the Council. On
16 July, the Chief Executive wrote a letter to the Minister, which it is common
ground is confused and confusing. It said that the Council had had good reasons
"up to now" for rejecting the request to buy the Balchins' property. There was
no statutory duty to buy the property, and no power to do so merely on grounds
of sympathy. It is clear that, in writing this letter, the Chief Executive
displayed ignorance of the power conferred by section 246(2A). The Minister
wrote a brief letter in reply, but did not draw attention to section 246(2A).
On 20 August, the Minister wrote to Mr Howell saying that there was nothing
that the DOT or any other Government Agency could do to help Mr Balchin at that
stage.
8. The
Minister asked for further advice on Mr Balchin's eligibility for compensation
under the 1973 Act. LAOS advised that it was open to the Council to buy the
property. This was using the powers given by section 246(2), and not 246(2A)
of the Highways Act 1980. LAOS advised the Minister that, although they were in
favour of this course of action, they could not foist it on the Council. On 24
September 1992, the DOT sent copies of booklets explaining land compensation to
the MEP: the booklets contained information about the section 246(2A) powers.
9. On
1 October, the Council's Planning and Transportation Committee agreed that the
question of compensation for Swans Harbour would be dealt with in accordance
with the timescale dictated by the 1973 Act, ie in the light of the physical
factors evident after the scheme had been in operation for one year. On the
same date, the Chief Executive conveyed that decision to the Minister, saying
that in effect the Council was maintaining its refusal to buy the property.
After receipt of this letter, DOT officials said in a background note to the
Minister that they could have no quarrel with the basis of this decision, and
that the Council's desire not to set a dangerous precedent was also "perfectly
understandable".
10. On
14 December 1992, Mr Balchin's bank wrote to the Council asking whether
consideration had been given to acquiring the property under section 246(2A).
In reply, the Council officer said that, as far as he was aware, that had not
been considered, but that the Council's agreement would be most unlikely.
11. The
Balchins' house was blighted by the proposed works. The proposed plan for the
Bypass showed that the road would abut Swans Harbour on an embankment some 6
metres in height, and the embankment would lie about the same distance from the
nearest windows of the house. There is no doubt that the Balchins have suffered
very considerable harm as a result of their house being blighted by the
proposed works. It is unnecessary to go into the details. In about June 1996,
the scheme was abandoned by the Council.
12. The
Balchins complained to the Commissioner in about early 1994 that there had been
maladministration on the part of the Secretary of State in confirming the
Orders without seeking an assurance from the Council that they would receive
adequate compensation for the effect of the road on their home. The
Commissioner reviewed the history of the matter. In relation to the period up
to the date of the decision letter of 3 June 1992, he concluded that there had
been no maladministration on the part of the Secretary of State. He held that
the Secretary of State was under no obligation to seek assurances from the
Council before deciding to confirm the Orders, and the issue of compensation
was not a matter for him. Once he had issued his decision letter, the
jurisdiction of the Secretary of State was at an end. Nevertheless, the
Commissioner considered the question why the officers of the DOT did not raise
the possibility of the Council purchasing the property under section 246(2A) of
the Highways Act. The answer that they gave was that this would have been
"overstepping the mark", an answer which the Commissioner said that he found
"unconvincing", particularly as there was no evidence that the officials ever
actually considered the possibility of discretionary purchase (paragraph 25).
He accepted, however, that even if the officers had raised this possibility,
the Council would have refused such a purchase. This conclusion was based on
the fact that the Council had made such a response in reply to the letter dated
14 December 1992 from Mr Balchin's bank.
14. Sedley
J gave judgment on 25 October 1996. He rejected grounds 1 and 3. In relation
to ground 2, he also rejected the argument advanced on behalf of the Balchins
that the Commissioner should not have accepted the Department's view that it
would have been an unacceptable use of the Secretary of State's powers to make
his confirmation of the Orders conditional on the Council's deciding to
exercise its powers in a certain way. Sedley J did, however, uphold a refined
version of the second ground of challenge. What he said was this::
15. This
is dated 14 July 1997, and is the subject of the present judicial review
challenge. This report was not written by the same Commissioner as the first
one. In the second report, the Commissioner repeated many of the findings that
had been made in the first report, but he also recorded certain fresh findings
in the light of evidence that had not been adduced before the first
Commissioner. This included at paragraph 22 comments made to him by the
Permanent Secretary of the DOT in the following terms:
16. At
paragraph 26, the Commissioner summarised the issues before him as being
"whether what DOT did or did not do amounted to maladministration; and if it
did, whether the Balchins suffered injustice as a consequence". That summary is
impeccable, and Mr George does not contend otherwise. The Commissioner went on
at paragraph 27 to say that, in the light of the judgment of Sedley J, he
considered three questions, namely:
17. At
paragraph 28 and 29, the Commissioner examined the events up to 3 June 1992.
He found nothing in the actions of the Department which could be fairly called
maladministrative. He said:
18. In
paragraph 30, he addressed the question whether there had been
maladministration after 3 June 1992, and concluded that there had not. The
paragraph was in the following terms:
19. The
part played by paragraph 31 in the Commissioner's reasoning was in dispute
before me. At this stage, I shall merely set it out (together with the final
paragraph).
20. In
summary, therefore, it will be seen that the Commissioner gave separate
consideration to the issues by reference to the period before and after the 3
June 1992, and in respect of each period found that there had been no
maladministration by the Secretary of State either by act or omission. There is
a dispute between the parties as to whether the Commissioner dealt with the
question of whether, if there had been any maladministration, it caused any
injustice to the Applicants.
21. These
are subject to the Parliamentary Commissioner Act 1967 which, so far as
material, provides:
22. It
is submitted by Mr George QC that the Commissioner erred in law in relation to
maladministration in that (i) he left out of account material considerations
relating to the acts and omissions of the DOT; (ii) his reasoning was
inadequate; and (iii) his conclusion was irrational. It is further submitted
that the Commissioner found that no injustice had been sustained by the
Balchins, and that in relation to this finding, (iv) the Commissioner
misconstrued the meaning of injustice; (v) left out of account material
considerations in relation to the question of what the likely response of the
Council would have been if the Secretary of State had sought to persuade it to
exercise its powers under section 246(2A); (vi) failed to consider whether the
loss of a chance could constitute injustice; (vii) his reasoning was
inadequate; and (viii) his conclusion was irrational.
23. The
principal submission of Mr George is that the Commissioner overlooked two
important factors when reaching his decision on maladministration. The first
is what Mr George called the Department's "collective amnesia" of the existence
of section 246(2A). The first Commissioner had, at least impliedly, found that
the DOT had overlooked the existence of the section when dealing with the
Balchins' case. At paragraph 25 of his decision, the first Commissioner noted
that, while the Department continued to express sympathy for the Balchins, they
did not raise the possibility of the Council exercising its powers under
section 246(2A). He then said:
24. At
page 928 of his judgment, Sedley J referred to this paragraph of the decision,
and said that the Commissioner found the truth to be that the existence of the
section 264(2A) "was simply overlooked."
25. It
was no doubt partly in response to this finding of the first Commissioner,
highlighted as it was by the judge, that the Permanent Secretary made the
comments that are recorded at paragraph 22 of the second decision, and which I
have already quoted. It was implicit in these comments that the Permanent
Secretary was saying that the DOT had not overlooked the existence of the
section 246(2A) power, but that it had decided that, for the reasons given, it
was not necessary to remind the Council about it. The Commissioner clearly
accepted the views of the Permanent Secretary. I refer to the passage at
paragraph 29, where he says that the Circular was sent to all local authorities
in September 1991, "a fact of which DOT was aware"; and "I consider that at
that stage DOT had no reason to suppose that the council's consideration of the
courses open to them would not take due account of the new powers by then
available to them". Again, at paragraph 30, when referring to what was
happening in October 1992, the Commissioner says: "in the event DOT chose not
to exercise their powers of persuasion further.." The use of the word "chose"
is significant.
26. Thus,
in accepting what he had been told by the Permanent Secretary, the Commissioner
impliedly found that there was no collective amnesia. In so doing, he was
disagreeing with the first Commissioner, who had not had the advantage of
hearing what the Permanent Secretary had to say. In these circumstances, it
seems to me that it is wrong to say that the Commissioner overlooked the
collective amnesia for which Mr George contends. He considered it, and found
that it did not exist.
27. I
turn to the second matter said to have been overlooked. This is the fact that
the Minister was keen to ensure that the Council helped the Balchins. Mr
George submits that the importance of this is that it formed a crucial part of
the context in which the reasonableness of the response of the DOT had to be
judged. The Commissioner made no reference to this in his findings which run
from paragraph 25 to the end of the document. But he did refer to the point at
paragraph 15 of the decision. Moreover, it was obvious from the
correspondence, some of which was signed by the Minister himself, that he was
anxious to persuade the Council to help the Balchins. There is no reason to
suppose that the Commissioner did not have this in mind when considering
whether there had been maladministration.
29. The
principal submission of Mr George here is that it is impossible to know how the
Commissioner came to find (as I have held that he did) that the DOT did not
overlook the existence of section 264(2A). He must have based himself on the
evidence of the Permanent Secretary, and yet, when that evidence is analysed,
it could not reasonably have justified the finding. Mr Elvin concedes that
those in proximity to the Minister in the handling of the Balchins' case
(including the officials of LAOS) were ignorant of, or had forgotten about,
section 246(2A), and that, hardly surprisingly, the Minister himself was in the
same position. Mr Elvin suggests, however, that there may have been others in
the DOT dealing with the matter who were aware of the section, and that the
Permanent Secretary had them in mind when he gave his evidence.
30. In
my judgment, Mr George has identified a real flaw in the reasoning of the
Commissioner which goes to the heart of the decision. It is not in dispute that
the duty of the Commissioner in relation to reasons was to address the
principal important controversial issues, but not every single point raised by
the parties: see by analogy
Bolton
Metropolitan Borough Council -v- The Secretary of State
[1995]
3 PLR 37, 43C. There can be no doubt that the state of knowledge of the DOT
was a principal controversial issue before the Commissioner. The Department
was faced with a finding by the first Commissioner that it had overlooked the
existence of the power at the material time. That was plainly very damaging
from the Department's point of view. On the other hand, if the second
Commissioner could be persuaded that the power had not been overlooked, then
that would substantially improve the chances of avoiding a finding of
maladministration. That is why the evidence of the Permanent Secretary was so
important.
31. The
words attributed to the Permanent Secretary in paragraph 22 of the decision
seem to me to have been carefully chosen. Nowhere does he say expressly that
those who were handling the Balchins' case were aware of the existence of
section 246(2A). But he clearly implies that the DOT was aware of the section,
since otherwise he could hardly have said that it was reasonable "in DOT's
view" to have assumed that the Council was aware of the power. It would appear
that the Commissioner did not explore with the Permanent Secretary the state of
knowledge of those in the DOT who were actually dealing with the Balchins'
case. But, in my view, if he had thought about the picture that was disclosed
by the contemporaneous documents that were before him, he would surely have
pressed the Permanent Secretary on this point. This is because the documents
pointed very strongly to the conclusion that those involved with the case had
indeed overlooked the existence of the power. Moreover, as Mr George points
out, those documents must be viewed against the background that the Minister
had made it clear to his officials that he wanted to know how the DOT could
"ensure" that the Council helped the Balchins.
32. I
have already referred to some of these documents. The background note of May
1992 referred to a claim for compensation under Part 1 of the 1973 Act. It
seems to me that, if the writer of this note had section 246(2A) in mind, he
would have referred to it in this document. The same point can be made about
the Minister's letters to Mr Howell of 2 July and 20 August, and his response
to the Councils' confusing letter of 16 July. Likewise the further advice given
by LAOS to the Minister (referred to at paragraph 17 of the Commissioner's
decision) that the Council had the power to acquire the Balchins' property
under section 246(2). As we have seen, the first Commissioner did raise with
the DOT the question of why section 264(2A) was not mentioned in these
documents, and was given the explanation of "overstepping the mark", which he
found "unconvincing". The second Commissioner did not raise this question.
But it was a critical question, since the answer to it would cast shafts of
light on the issue of whether those in the Department who were handling the
Balchins' case were aware of section 246(2A).
33.
In the result, the Commissioner made no finding as to whether any, and if so
which, of the officials in the Department who were handling the Balchins' case
were aware of section 264(2A). In my judgment, this is a crucial omission. It
was immaterial that there were
some
officials within the Department who were aware of the section at the material
time. What mattered, for the purpose of an inquiry into whether there had been
maladministration in failing to seek to persuade the Council to exercise its
power under section 246(2A), was whether those who were dealing with this case
were aware of it. The reason why this omission is so important is that the
documents make it overwhelmingly likely that all of those persons overlooked
the existence of the power at the material time.
34. In
short, the finding that the DOT did not overlook section 246(2A) was at the
heart of the Commissioner's conclusion that there was no maladministration. It
was this finding that enabled him to conclude that the decision reached by the
DOT was "within the reasonable range of responses open to them given their
knowledge" and "one they were entitled to take" (paragraph 29). It is not
possible to say what conclusion he would have reached on the issue of
maladministration if he had found that those handling the Balchins' case had
overlooked section 246(2A). I think that the Commissioner was unwittingly led
into error by the rather unspecific evidence of the Permanent Secretary. It
is possible that, as Mr Elvin suggests, there were persons in the DOT handling
the Balchins' case who had not overlooked section 264(2A). But if that is so,
there is no trace of them in any of the material that has been placed before
me. Moreover, given the close interest shown by the Minister, and the terms in
which his various letters were expressed, the hypothesis suggested by Mr Elvin
is inherently unlikely. This emphasises the shortcomings in the reasoning of
the Commissioner's decision.
35. In
reaching the conclusion that the decision on maladministration is flawed, I am
very conscious of what Sedley J referred to as "the very wide areas of judgment
and discretion given to the Commissioner by the Act" (page 929). I have had
regard to the warning as to the limited scope for interference by the courts in
these cases given by the Divisional Court in
R
-v- Parliamentary Commissioner ex parte Dyer
[1994] 1 WLR 621. But that was a case in which the ground of challenge was
about the manner in which the Commissioner handled the complaint. Simon Brown
LJ said that the Act gave the Commissioner a broad discretion as to the scope
of any investigation, and the way in which he conducted it. It is not, however,
disputed by Mr Elvin that a decision of the Commissioner is susceptible to a
reasons challenge, where there is real doubt in relation to the principal
controversial issues as to what was decided and why: see
Clarke
Homes Limited -v- The Secretary of State
[1993]
66 P&CR 263, 271-2.
36. Mr
Elvin also relies on the passage in the judgment of Sir Thomas Bingham MR in
R
-v- Ministry of Defence ex parte Smith
[1996] QB 517, 554-556 that "the greater the policy content of a decision, and
the more remote the subject matter of a decision from ordinary judicial
experience, the more hesitant the Court must necessarily be in holding a
decision to be irrational". He submits that the court should be particularly
reluctant to interfere with decisions of the Commissioner, since they are
"policy laden". I would not quarrel with this as a general rule. But where the
court finds that there is a real shortcoming in the reasoning of the
Commissioner, it seems to me that it is not passing judgment on the substance
of a policy decision. It is criticising the reasoning on grounds which do not
depend in any way on the policy element of the decision.
37. Finally,
I should mention a submission made by Mr Elvin that to quash the second
decision would be an abuse of process. He submits that, where the challenge to
the second decision effectively raises matters which were or ought to have been
raised during the first judicial review proceedings, it is an abuse of process
and contrary to good administration to raise them during subsequent judicial
review proceedings. This submission was principally directed to the challenge
in the present proceedings in so far as it is based on alleged irrationality.
Mr Elvin rightly accepts that this argument cannot avail him in relation to the
reasons challenge, since the reasoning of the second decision was materially
different from that of the first decision.
38. In
the result, the challenge to the finding that there was no maladministration
succeeds on the reasons point. It is, therefore, unnecessary for me to deal
with the arguments on irrationality.
39. The
first question is whether the Commissioner made any finding on injustice at
all. Mr Elvin submits that he did not. I do not agree. As Mr George points
out, at paragraph 32, the Commissioner refers to his answers to the three
questions that he raised at paragraph 27. The third of these asked whether, if
DOT's omission amounted to maladministration, it causes injustice to the
Balchins. On any fair reading of paragraphs 31 and 32 of the decision, it
seems clear to me that the Commissioner decided that no injustice was caused to
the Balchins because he did not believe that, even if the DOT had handled the
matter differently, the Council would have reached a different conclusion. In
other words, even if the DOT had sought to persuade the Council to exercise its
powers under section 246(2A), the Council would have refused to do so, so that
no injustice was suffered by the Balchins.
40. The
first submission of Mr George is that the Commissioner misdirected himself as
to the meaning of injustice. At page 926 of his judgment, Sedley J said this of
injustice:
41. It
follows that the defence familiar in legal proceedings, that because the
outcome would have been the same in any event there has been no redressible
wrong, does not run in an investigation by the Commissioner."
42. I
did not understand Mr Elvin to take issue with this statement of the meaning of
injustice, and I see no reason to disagree with it. If that is wrong, then I
would accept Mr George's alternative submission that the meaning of injustice
is ambiguous, in the sense that it is equally capable of being limited to, or
importing considerations which are wider than, financial loss. On that basis,
regard can be had to what Mr Crossman said in Parliament when promoting the
1967 Act. What he said was:
43. Mr
Elvin submits that it is a matter for the Commissioner to decide what amounts
to injustice in any particular case, and that it was open to him to decide that
there was no injustice on the grounds that, even if there had been no
maladministration on the part of the Secretary of State, that would have made
no difference so far as the Balchins were concerned.
44. The
Commissioner did not expressly direct himself in his decision as to the meaning
of injustice. Mr George submits that the Commissioner must have treated
injustice as limited to financial loss, since, if he had regarded injustice as
including a sense of outrage aroused by unfair or incompetent administration,
he would surely have found statutory injustice in this case. I cannot accept
this submission. I agree that the Balchins had an extremely powerful case on
outrage. They had been ruined financially by the proposed road scheme, and had
received no compensation from the Council. I accept that if he had addressed
his mind to the issue of outrage, the Commissioner might well have taken the
view they had suffered injustice if (contrary to his findings) there had been
maladministration. But I find it impossible to say that he would have been
bound so to conclude. Accordingly, I do not find not that the Commissioner's
findings on injustice show that he must had misdirected himself.
45. Mr
George next seeks to challenge the Commissioner's finding that it was unlikely
that, if they had been made aware of section 246(2A) by the DOT, that would
have made any difference. He submits that this finding is flawed, since it is
based on irrelevant considerations, namely (i) the repeated rejections of the
Balchins' requests on financial grounds, and (ii) the Council's reaction to the
request by Mr Balchin's bank. Mr George points out that the earlier rejections
were before the Council had the power to purchase under section 246(2A), and
there was no consideration by the Council of the bank's request, merely a
response from a Council officer. These are fair points to make, but in my
judgment, they are not of such potency as to lead me to conclude that the
Commissioner's finding is erroneous in law. He was entitled to reach the
conclusion that he did. There was material on which he could base a finding
that the Council was reluctant to purchase the property. The finding that he
made was no more than that the extension of the Council's powers was "unlikely
to be perceived as sufficient reason for them to change their attitude". I can
see nothing wrong with that finding.
46. Mr
George also mounts a reasons challenge, and in my judgment, this is
well-founded. I have already made the point that the Balchins had a very
strong case on outrage. They had been financially ruined by the proposed
scheme, and the Minister had made it clear to his officials that he wanted to
ensure that the Council helped them. And yet, ex hypothesi, in its dealings
with the Council over the Balchins' case, the DOT overlooked the existence of
the only power which, if invoked, could have helped them. It is not possible to
know what view the Commissioner had as to how bad a case of maladministration
this would have been, and how intense a sense of outrage it would have aroused,
on the assumption (contrary to his findings) that the DOT did overlook the
power and was guilty of maladministration.
47. This
leads me straight to the question of the adequacy of the Commissioner's
reasons. He could have simply refused to deal with the issue of injustice on
the grounds that his findings of maladministration were sufficient to dispose
of the matter. But I have rejected Mr Elvin's argument that this is what he
did. On that footing, Mr Elvin seeks to oppose this application for judicial
review on the grounds that the Commissioner's decision on the injustice point
is fatal to the Balchins' challenge. It is clear that the issue of injustice
was one of the principal controversial issues, and the Commissioner was
required to give reasons in relation to it, which were sufficient to enable the
parties to know what he decided, and why. In my judgment, since the case on
outrage was so strong, the Commissioner should have made it clear that he had
considered it, and why he had decided that it did not involve injustice in this
case. The failure to mention it leads to the reasonable suspicion that he
failed to have regard to it at all, or that, if he did, his reasons for
concluding that there was no injustice would not bear scrutiny. In my view,
this reasons challenge is justified. I would rest this part of my decision on
the simple fact that the Commissioner should have dealt expressly with the
outrage point.
48. Mr
George has a yet further submission. He says that, at the very least, the
Balchins suffered the loss of a chance of the exercise of the power under
section 246(2A) by reason of the DOT's maladministration. The Commissioner was
not able to find that it was
certain
that the Council would have refused to exercise the power if asked to do so by
the DOT. It would appear that he concluded on the balance of probabilities that
the Council would not have reached a different conclusion even if the DOT had
handled the matter differently. Mr George argues that the loss of a chance is
a loss recognisable in law, even if that chance is less than 50%. He cites
private law cases such as
Allied
Maples Group Limited -v- Simmons & Simmons
[1995] 1 WLR 1601, 1614 C to D. He submits that the Commissioner should at
least have considered the possibility of injustice in terms of the loss of a
chance, and that his failure to mention it is a further manifestation of
inadequacy of reasons. I rather doubt whether the Commissioner was obliged to
address the issue of loss of a chance, although I can see no reason why, if he
thought it appropriate, he could not have found that the loss of a chance did
give rise to injustice. I would not have found against the Commissioner on the
grounds that he did not deal with the issue of a loss of a chance in his
decision.
49. It
is particularly unfortunate that, for a second time, a decision of the
Commissioner on this affair has been quashed. I am extremely conscious of the
constraints that are placed on a court in reviewing decisions of a
Commissioner. It is, however, common ground that the decisions of the
Commissioner are susceptible to judicial review, and that a reasons challenge
will succeed in circumstances such as I have found to exist in the present
case, namely where there has been a failure to give reasons for findings on a
principal controversial issue. For the reasons that I have attempted to give,
this application succeeds, and the decision must be quashed.
50. MR
GEORGE: My Lord, there is just one matter, could I mention it? It is on page
one of your Lordship's decision. Three lines from the bottom, where you refer
to the "Circular" as being "an annex" to the 1991 Act. It is of course a
free-standing document, an explanation of the Act, and I wonder if your
Lordship would like to take that matter into consideration. I do not want it
later to be suggested that you were viewing the circular as itself having
statutory force as part of the Act.
51. MR
JUSTICE DYSON: Certainly, it has not formed any part of the ratio of my
decision as I think must be obvious. What should I say.
54. MR
GEORGE: My Lord, I seek the orders in the form they are set out at page 1 of
the bundle, namely an order of
certiorari
and an order of
mandamus
to be considered.
55.
My Lord, so far as costs. My Lord, I seek that the Respondent pay the
Applicant's costs and my Lord, to include, expressly, the costs of the hearing
before Sullivan J. That matter is referred to at page 45 of the bundle where
they were expressly reserved.
58. MR
ELVIN: My Lord, I have two points to make: firstly, I would submit
mandamus
is not required to be issued here, it is inconceivable that a Parliamentary
Commissioner requires an order of
mandamus
to be required to redetermine the matter. Clearly
certiorari
will lie and I submit that is sufficient.
59.
Secondly, the question of costs, my Lord, I do resist a full costs
application for the following reasons: firstly, your Lordship has found against
the Commissioner on the ground of inadequate reasons. I see how your Lordship
puts the matter. The reasons issue, as your Lordship well knows, forms only
one part of a series of arguments which took a considerable amount of time and
evidence, and the reasons issue itself only formally became part of the
challenge when your Lordship granted leave to include it within the 86A last
Wednesday. It is true that it was prefigured in my learned friend's skeleton
at the leave stage in front of Sullivan J, but it has formed a very much
subordinate part of the Applicant's case and your Lordship has found that it is
the principal ground. Indeed, as your Lordship will recall, the whole purpose
of my running the abuse argument was because of the significant part which
irrationality played in the original challenge.
60.
My Lord, cutting the matter short, therefore, I would submit that justice
ought to be done particularly having regard to the new principles and the
overriding objective which in the matters looking at issues such as
proportionality and fairness, a proportionate award in this case would be
one-third or one-half of the Applicant's costs in this case, given that the
reasons challenge was only a subordinate part of the main challenge.
62. MR
GEORGE: My Lord, that plainly is not required. My Lord, so far as the partition
of costs. I remind your Lordship first of all of the irrationality point.
Your Lordship has expressly said it is simply not necessary to go on to
determine that matter. Therefore, it is not open to my friend, as it were, to
approach the matter upon the basis that that matter has been decided against me.
63.
My Lord, I fail to see that there is any way in which I could have
approached a reasons challenge more briefly than in the way in which I dealt
with the whole matter. Your Lordship will recall when it came to
irrationality, I said, there was not anything to be added. We have been
through all the matters; in other words, the basic material on reasons and
irrationality, I think it entirely lay on top of one another, it was the same
basic material I had to take your Lordship through.
64.
My Lord, similarly, so far as my first ground of challenge about omitting
the collective amnesia point. Again, my Lord, that material had to be covered
for the reasons -- it is crucial to your Lordship's determination on the
reasons and again, as your Lordship pointed out to me very early on, there is a
huge overlap in these particular matters. My Lord, in my submission, there has
been no addition to the costs nor, to say that reasons is raised late, true as
a pure pleading point but, my Lord, my friend admitted there was a substantial
section in the skeleton argument before Sullivan J precisely dealing with
reasons and, indeed, in the skeleton argument from my friend, no suggestion
that reasons had not been pleaded could not be raised instead of paragraph 36----
65. MR
JUSTICE DYSON: Mr George, I do not think I need to trouble you further. I think
you are entitled to your costs.
66. MR
ELVIN: My Lord, I have an application for leave to appeal. My Lord, I put it on
these two basis: firstly on the reasons issue, in my submission, having regard
to the
Dyer
principle
(which I appreciate your Lordship expressly takes into account) in my
submission, there is a reasonable ground for taking the matter to appeal on
this basis. As your Lordship recalls in
Dyer,
Simon Brown LJ left it to the Ombudsman to formulate the issues. My Lord, the
issue which is relevant in this case, as your Lordship has found is issue
27(2), namely the principal issue was whether the emission to give express
advice on section 246(2A) was maladministrative. My Lord, in my submission,
there is a reasonable ground for argument having regard to
Dyer
and, indeed,
ex
parte Smith
as to whether the duty to give reasons includes the duty to give reasons for
subordinate findings of fact which comprise one subissue of the border issue
which the Ombudsman set for himself in that issue because than finding of fact
is only one small element in one part of the tapestry which goes to form that
wider question.
68. MR
ELVIN: Your Lordship has found as your Lordship has found, but I simply say
there is an arguable point on that, because it is nonetheless still one part of
the broader issue, and the broader issue is that admission. My Lord, having
regard to the strictures in
ex
parte Dyer
tied into
ex
parte Smith
which strictures your Lordship accepted, I would submit there is certainly an
arguable ground, at least for appeal, on that issue, and it is of some
importance, as your Lordship will recognise, so far as the Commissioner is
concerned.
69.
My Lord, my second ground is on the injustice issue. My Lord, as I
submitted to your Lordship last week, the Ombudsman once he finds there is no
injustice does not have to go any further. I appreciate your Lordship has
found against me on the construction point but, my Lord, in my submission, it
would not be right to quash the decision in part on the basis relating to
injustice, where the Ombudsman did not need to go any further. Indeed, in
ex
parte Bradford
(a
point I raised in paragraph 33 of my skeleton argument) the Court of Appeal
said just that so, again, my Lord, I would submit that the consequences which
your Lordship has set out in terms of the injustice issue are ones which are at
least reasonably arguable and matters which, again, having regard to the
important of the issues, so far as the jurisdiction is concerned, are ones
which should be left to go forward.
71. MR
GEORGE: I would resist that strongly. So far as reasons, your Lordship has
found that the matter on which your Lordship has based himself was a principal
matter, and my Lord that could not be otherwise, given the paragraph of Mr
Norwood's letter which had raised the particular matter and so forth. My Lord,
in those circumstances, that ground should -- dressed up as if in some way it
brings in
Dyre
or
ex
parte Smith
,
it does not bring in those at all, it is merely an application to found facts
of law determined by the House of Lords on which my friend himself was relying.
My Lord, so far as the injustice matter. Again, your Lordship has found a
failure of reasons in that regard. My Lord, my submission again is, this is
not an arguable matter.
72. MR
JUSTICE DYSON: Mr Elvin, the view I take is that I was applying the authorities
which you said I should apply in relation to reasons, to the facts of this
case. I appreciate this may be an important case from the Commissioner's point
of view, but I think that you ought to ask for leave from the Court of Appeal
and I refuse leave.