Judicial review

 

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phsothefacts-logo-D3.pngWhat happens if I take PHSO to judicial review? 

You lose, they win, and it costs you loads of money.

Judicial review is essentially PHSO’s ‘get out of jail free’ card.  It makes them ‘accountable’ by law but in reality no-one ever wins against the Ombudsman, so it doesn’t bother them one little bit if you threaten to take them to court.   Similar to the  review process a judicial review does not look at the decision itself, but at the process employed when coming to that decision.  As the Ombudsman has total ‘discretion’ concerning the way she handles cases, the Judge will always decide that her actions are ‘reasonable’.  This evidence from an oral hearing between Miss Monica Dyer V PAC 1993 explains how ‘discretion’, built into the 1967 Act, will effectively deny the chance of any successful court action.  www.bailii.org/cgi-bin/markup.cgi    Also see this link:  FOI  judicial review

Officially PHSO have very little to say on the judicial review process, preferring to leave it as a mysterious process which requires solicitors, barristers and deep pockets.

‘Once you have received our response, that is the end of our internal complaints procedure. If you disagree with our response you can challenge it through the courts using judicial review. We are unable to give you advice about this and you might need to get your own independent or legal advice on how to do this.’      PHSO web site.

 

So what is a judicial review?  

All government bodies are subject to judicial review as in theory this allows members of the public to redress the balance of power through court action.  It can be very daunting for an individual to enter the world of legal mumbo-jumbo where participants  use the obscure language of Dickens in order to cloud the proceedings with smoke and mirrors.  It also costs a lot of money.  general overview of judicial review

If that hasn’t already deterred you, then bear in mind who makes the law, who upholds the law and who benefits from the law.  It’s not you is it?  The judicial system is biased, some would say corrupted, in favour of government organisations and those in power.  They make the law in order to protect themselves and keep the little guy out in the cold.  You may well need to revise everything you ever understood about truth and justice in order to fully grasp the reality here.  Do this before you take court action and it could save you a lot of time and money.

You won’t win if you take PHSO to judicial review and neither will you get any publicity for trying, so putting in legal papers won’t concern them.   If they think you have a really strong case, which may give them adverse publicity,  they may agree to review your complaint again in order to quash the action.  Beware of this sticky lollipop pacifier.  If you agree, it will just take you back into the system for anything up to a year or more and in the end the Ombudsman could come to the same conclusion as before.  Just kicking the can up the road and giving you false hope.

Threat of judicial review was successful for James Titcombe who managed to gain a full investigation and a report into the tragedy at Morecambe Bay maternity unit, despite the fact that his original complaint was turned down for investigation.  morecambebayinquiry

If you decide to go ahead and your case is accepted for judicial review at The High Court you can ask the judge to consider it a case of ‘public interest’ which will mean that you are not liable for PHSO costs if you lose.  If the judge is not willing to do this (and they rarely are) you will have to be prepared to sign a fat blank cheque to cover both your legal costs and those of the defendant.  (Could be up to £40,000 in total)  If you win, (which you won’t) but if you did, for all your trouble the judge would simply order PHSO to review your case again and possibly pay you a small sum of money in compensation.  There will be very little, or no publicity for this case, so it won’t shame them into cleaning up their act.  PHSO are so confident that the judge will refuse the case at the first hearing that they rarely turn up to court.

In case I haven’t made myself clear   DON’T DO IT!

I want to know anyway so tell me what is a judicial review? 

OK sucker – here goes:  It’s complicated and presently under review, so don’t sue me if I’m not 100% accurate here.

If you think that PHSO acted unlawfully when making the decision on your case then you must put in a claim to the High Court within three months of their final decision and this request will cost you £50.

There are currently discussions whether this time scale should be reduced and costs increases to deter ‘time wasters’ like we all take court action because we can’t think of anything better to do.  Grayling on eliminating ‘time wasters’.

You will need to employ a solicitor to present your case papers and claim form to the High Court within this deadline and prepare your pre-action protocol letter which is sent to the Ombudsman.  The purpose of this letter is to explicitly state the nature of your complaint and give both sides the opportunity to agree on a compromise without taking court action, otherwise known as Alternative Dispute Resolution (ADR).  You should give the Ombudsman two weeks to review your matter before your 3 month deadline is up. At this point it is likely that PHSO will step in and offer you a review if they think you have a strong case which may embarrass them.

Info on ADR and pre-action protocol letter

If you want to present your own pre-action protocol letter, and there is nothing to stop you doing so, you will find much useful information in this training pack which also has proforma letters. How to carry out a JR  You may also find this 2017 guide useful Administrative Court – Judicial Review Guide

If you are looking to find a good Solicitor then use the Chambers guide or the Legal 500 to identify firms that specialise in JR and public law.  Look at those firms who have won awards or been nominated for legal aid work/pro bono work by the Legal Action Group, the Lawyer and the like.  Ask how many JRs the solicitor has done personally and how many they have on the go at the moment.  Solicitors are obliged to give you a quote on fees and to set out clearly how much a case or each stage of a case will cost. This should be set out in a very clear letter. If they can’t do this, and want to put you ‘on the clock’, forget it. Solicitors tend to waste more time on things when they’re not specialists so avoid anyone who isn’t a public law solicitor in the first place.

It is a difficult time for JR as there is little legal aid about and solicitors have to make a living just like plumbers or electricians who are not expected to work for free. However, no one should just have big bills out of the blue. Many firms will allow payment by instalments or in tranches.  Some firms are more likely to give things a go where others want to have certainty of success.  You may be able to pay for your legal advice from your house insurance policy so check that out.

The relevant code of conduct link is here http://www.sra.org.uk/solicitors/handbook/code/part2/rule1/content.page and it has a section on costs.  Clients should ask for quotes and ask the solicitor to tell them when they have reached a certain level of costs – e.g. £500 or £1000. If anyone tells you that it is hard for them to quote for the whole case, fine, ask them to quote stage by stage e.g. how much to apply for legal aid, read the file, instruct counsel etc. Solicitors really should be able to do this.

If the Judge rejects your initial JR claim then you can appeal this decision via an oral hearing and put your case directly to the Judge.  In some cases people have applied for judicial review simply to have this one day in court, knowing that the case will go no further.  The present government are clamping down on judicial review applications and if the Judge decides that the case has ‘no merit’ then he can deny access to an oral hearing and your side are sent home for an early bath.  Guardian article:  on ‘no merit’ cases

Most applications do not get past the first stage, so all that money you paid to your legal team has produced nothing more than a tidy pile of paper.  If you do get a hearing then jolly good luck to you.  Only one case has ever been found in favour of the claimant in judicial review against the Ombudsman.  It took the Balchins over twenty years to achieve justice, so if you have the stamina then give it a try.

ombudsman.org.uk/improving-public-serviceEditor’s note:  On this page was the confirmation that the Balchin case was the only one ever to be successfully pursued against the Ombudsman.  Strangely the page has now disappeared from the PHSO website.

The Balchin’s case from ombudsmanwatchers.org.uk

uk/orc/law/public/cases  If you follow this link and look at bullet point 4 you will be able to see that the Balchin’s succeeded and the decision of the Ombudsman was found to be ‘unlawful’.

All of the above, plus more, in a user friendly format.

phso ombudsman three monkeys, see no maladministration, hear no maladministration, speak no maladministration.

Cartoon by Pixomanic