Judicial review, litigation effects and the ombudsman

Abstract

Judicial review is widely understood to be a remedy of last resort, but there remains little research on the extent to which the process can achieve meaningful redress. This article applies the results of a study into ombudsman judicial review to chart the outputs of the various stages of the process at which an outcome can be secured. The claim is made that ombudsman judicial review does secure a small level of success for claimants both in and out of court but that the rate of such success is lower for citizen claimants than the norm in all judicial review cases. The explanation provided for this pattern is that organisationally ombudsman schemes have learnt lessons from being repeat players in judicial review and are better equipped to integrate rule of law values than many other public bodies. Citizen claimants, by contrast, include a high proportion of inexperienced litigants-in-person for which the judicial review process is ill-designed to facilitate.

Keywords:

• Judicial review
• ombudsman
• impact
• success rate
• litigants-in-person

Acknowledgements

I am grateful to the Nuffield Foundation for funding the research that this paper is based on. I would also like to thank Elizabeth O’Loughlin for assistance with some of the research that underpinned this article and Joe Tomlinson for his feedback.

Notes

1. Bondy and Sunkin note that previously recommendations have been made to pass formal rules of court on this matter (Law Commission, 1994, p. 5.14; Lord Chancellor’s Department Lord Chancellor’s Department, 2000, Ch. 7, p. 13.), but they have not been implemented.

2. As this article is written a request has been made for updated information.

3. Nowadays referred to as ‘permission’.

4. This figure reduces to 424 if you exclude 2000–2001, during which period an anomalously high amount of cases were substantively heard.

5. In his study, Thomas identified that the success rates have also fluctuated between immigration and non-immigration cases, but provides evidence to suggest that the 2011–2013 dip in success rate was due to a judicial response to increased caseload.

6. The figures vary considerably from year to year. The average withdrawal rate of claims before permission hearing between 2000 and 2017 is approximately 30% (for 2015 the figure was 24% (Ministry of Justice, 2017)). For claims that are successful at the permission stage and are then withdrawn, the average figure for 2000–2017 is 59%, rising to 63% if the years 2000 and 2001 are excluded (Ministry of Justice 2000–2017).

7. British and Irish Legal Information Institute, Westlaw and LexisNexis.

8. The collection of ombuds reviewed included all ombudsman members of the Ombudsman Association, plus other complaint-handler schemes with an ombudsman profile (e.g. public law litigation involving service complaint-handling of the Independent Police Complaints Commission and the Scottish Legal Complaints Commission were included). The study did not, however, include either the Pensions Ombudsman or the Northern Ireland Police Ombudsman given the subtly different issues that the work of these schemes entails. The appeal cases of the Scottish Legal Complaints Commission were included in the sample, as although these cases are heard by way of statutory appeal the grounds of appeal mirror those under judicial review.

9. See the Annual Reports of the Local Government Ombudsman.

10. The Public Authority claims in which the ombudsman decision was upheld are: R v Local Commissioner for Administration ex parte Bradford MBC [1979] 1 QB 287; R (North Yorkshire Police Authority) v The Independent Police Complaints Commission [2010] EWHC 1690 (Admin); and Armagh City Council, Re Judicial Review [2014] NICA 44. And the Public Authority claims in which the ombudsman decision was not upheld are: R v Commissioner for Local Administration ex p Eastleigh BC [1988] QB 855; Croydon v LGO [1989] 1 All ER 1033; R (Liverpool City Council) v Local Commissioner for Local Government for North and North East England [2000] EWCA Civ 54; Argyll & Bute Council, Re Judicial Review [2007] ScotCS CSOH_168.

11. For the links to the FOI request, see https://ukaji.org/2017/11/15/a-legal-threat-to-ombuds-practice/

12. For instance, see the submissions to the Public Administration and Constitutional Affairs Committee’s review of the Parliamentary and Health Service Ombudsman (PACAC, 2017).