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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Walker v Parliamentary and Health Service Ombudsman [2012] EWHC 535 (Admin) (09 March 2012) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2012/535.html Cite as: [2012] EWHC 535 (Admin)

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IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		9 March 2012

HH Judge Anthony Thornton QC:

Introduction

1. Mr Walker, in this renewed application for permission to apply for judicial review, seeks to judicially review three decisions of the Parliamentary and Health Service Ombudsman ("the Ombudsman"). These decisions, dated 27 July 2009, 20 November 2009 and 25 November 2010, were to the effect that the Ombudsman refused to undertake a formal inquiry into Mr Walker's complaints that the court staff at Wandsworth County Court and other members of Her Majesty's Court Service ("HMCS") were responsible for significant maladministration in relation to an appeal he sought to bring from a small claims case and in relation to the investigation of his complaints about that perceived maladministration. Permission was refused on the papers by Mr John Howell QC sitting as a deputy High Court judge in a decision dated 11 April 2011. Mr Walker's complaints against the Ombudsman are, in essence, that the relevant decisions, in initially refusing to undertake a formal inquiry and then, on two occasions, refusing to review that decision, were susceptible to judicial review in that they were based on a number of errors of fact and law and they failed to take account of a number of significant facts and contentions. In order to consider whether Mr Walker's challenge to these decisions has any prospects of success, it is necessary to consider in unusual length the factual background to Mr Walker's complaints to the Ombudsman and the relevant parts of the initial refusal decision and the two subsequent review decisions.

Factual Background

2. Mr Walker engaged Mr Sumpton to act as his Party Wall surveyor in relation to work he wished to undertake to one of the party walls at his house in Putney, London, SW15 in 2007. Mr Walker paid Mr Sumpton sums on account for his professional services but, when the party wall agreement had been finalised, he disputed the overall sum that Mr Sumpton was claiming and he also claimed damages for the loss he alleged that Mr Sumpton had caused him in negligently agreeing to an excessive fee that he should pay the adjoining owner for that owner's party wall surveyor. The parties could not reach agreement on either of these matters and Mr Walker brought proceedings in the Wandsworth County Court in which he claimed the return of the alleged overpayment and the alleged unreasonable part of the adjoining owner's surveyor's fee. The total size of the overpayment claim was £230 and the combined total claim was £950. Given the relatively small sum in dispute, the claim was allocated to the small claims track. The Civil Procedure Rules ("CPR") make it clear that small claims are ones where the sum in dispute is small; the hearings are to be informal; any method of proceeding with the hearing that is fair may be adopted; the strict rules of evidence do not apply; evidence need not be taken on oath and cross-examination may be limited. However, the court must give reasons for its decision (CPR 27.8).
3. The hearing took place on 16 October 2007 conducted by Deputy District Judge Amin-Mannion "A-M"). Each party represented himself. A-M adopted a flexible and informal procedure in which she heard the evidence from both parties for each item of the fees claim separately and announced her finding for that item at the conclusion of that part of the evidence. As is usual in small claims hearings, the time allotted for the hearing was one hour but the hearing overran and lasted nearly three hours. Each party gave evidence. This was largely taken up by questioning directed to the timesheets produced by Mr Sumpton and, during it, A-M made a finding that Mr Sumpton would be paid on the basis of an hourly rate for the time that he reasonably spent on the work and that, if Mr Walker succeeded in recovering anything by way of overpayment, she would disallow the fees being claimed by Mr Sumpton for the time spent by him in discussing and negotiating his fees claim since that time would not be time reasonably spent on the work. Mr Walker marked up his copy of the timesheets with the findings that A-M had made as the evidence proceeded.
4. At the conclusion of the evidence, and the hearing having overrun its allotted time, A-M informed the parties that by her calculation Mr Sumpton should repay Mr Walker £25 and that Mr Walker's negligence claim should be dismissed. A-M then advised the parties that the quickest and easiest way of dealing with the case was for Mr Sumpton to pay Mr Walker £20 there and then and to treat the matter as settled. If they agreed, there would be no need for her to give judgment. Since everyone was rushed for time and the sum to be paid was small, they both agreed to A-M's suggestion. A-M informed the parties that she would leave her notes and her annotations on the timesheets in the court file as a record of the hearing. This informal way of giving effect to a small claims decision was not in contravention of the CPR in that A-M had given oral reasons for her decision that were based on her notes and her annotations on the timesheets and these documents had been placed on the court file. A-M also left a note on the court file, which was dated 16 November 2007, which summarised what had happened at the hearing and how it had been brought to an end^[1].
5. The settlement in this case was not a normal settlement where both parties reach an out-of-court agreement to compromise the case. Here, the judge reached her conclusion as to what the result should be and informed both parties of it and suggested that, to save time and cost, they should consider informally settling the case at a figure that reflected her conclusion with a small discount to account for the saving in time and cost that would be involved in an immediate disposal of the case. The parties agreed to adopt this course and Mr Sumpton paid Mr Walker £20 in cash there and then. On that basis, A-M announced that she would not deliver judgment and that she would not make a formal order. This settlement therefore amounted to a procedural agreement as to how to give effect to the judge's decision on liability and quantum in a speedy, cost-saving and informal manner. This analysis of the settlement is confirmed by this extract from Mr Walker's letter to the court dated 10 December 2007 where he stated that he was asking in his appeal:

"… for the judge's original verbal order and the subsequent settlement to be set aside."

In his later letter to the court dated 24 January 2008, he again stated that his appeal was seeking an order:

"… for the judge's original verbal order to be set aside."

This analysis also corresponds with A-M's own recollection which she provided in a note to Judge Knowles on 19 March 2008^[2].

6. One of the administrative tasks of the court staff in the County Court is to draft and draw up the terms of all orders and directions made by judges in claims, whether these have been made in court or without a hearing. The court staff's function is faithfully to turn into an order the terms of any judgment, order or direction made by a judge and, where a case ends without a judgment, to record that the case has ended. The order should be drawn up by court staff as soon as possible after the conclusion of every hearing or after any judicial decision has been made in court or on paper without a hearing. The judge may often leave the drafting of the precise wording of the order to the court staff and, if so, the draft order should be agreed to by the judge before the order is sent out. If no order was made at the hearing or if the claim is compromised or settled at any time, that is also something that should be recorded in an order and the court staff should draw up an order which states that no order was made or that the claim was settled or that it was stayed by consent. This last form of words is frequently used in an order which is recording that a claim has been brought to an end by agreement^[3].
7. In this case, A-M with the agreement of the parties, made no order at the conclusion of the hearing. Nonetheless, the court should have drawn up an order using A-M's hearing notes and her note on the file. The order should have recorded that that no order was made and that, based on the judge's findings made during the hearing as set out in her notes and annotations that she had placed on the court file, the parties had agreed to settle the claim and to stay the claim. Unfortunately, the court staff never drew up or issued any order following the hearing. This failure to record what happened at the hearing was a significant cause of the subsequent difficulties that occurred.
8. Having left the court, Mr Walker realised that A-M, in explaining how she had arrived at her decision, had overlooked the need to deduct £230 from Mr Sumpton's claim and to add that to the sum to be awarded to Mr Walker since this sum represented Mr Sumpton's claim for his time spent negotiating with Mr Walker about his fees. In other words, Mr Walker considered that, by mistake, A-M had advised the parties that, overall, Mr Walker should be paid £25 rather than £250.
9. Mr Walker immediately wrote to the court a letter dated 18 October 2008, whose contents were referred to as "objections" on the court file, that explained the mistake that he contended had occurred and which asked for A-M's original verbal order and the subsequent settlement to be set aside as a result of the error that A-M had made in her calculations and for a new order that Mr Sumpton should repay a further £230. These objections were referred to Deputy District Judge Herbershon who consulted A-M's note dated 19 November 2007 to ascertain what appeared to have happened at the hearing. He then directed that a formal notice of appeal should be filed. Mr Walker was informed of this and he lodged a notice of appeal with the court that explained that he wished to apply for A-M's verbal order of payment and the subsequent settlement to be set aside. The notice was accompanied by his copy of Mr Sumpton's timesheets that he had annotated with A-M's findings and other documents in support of the appeal.
10. The notice of appeal and the court file were shown to Judge Behar for him to consider whether to grant permission to appeal, a necessary initial step since the appeal could only proceed if permission to appeal was first granted (CPR 52.3(1)). The judge directed in an order dated 29 November 2007 that:

"It appears from the Deputy District Judge's note dated 16 November 2007 that:

The case settled.

She made no order.

If this is an accurate record, there is nothing to appeal. You are invited to comment. If no comments are received within 28 days of the date of this letter, the application for permission will be dismissed."

The reference in this order to "the Deputy District Judge's note dated 16 November 2007" was a reference to A-M's note of what had happened at the hearing which had been placed on the court file with her notes of evidence and her annotated timesheets. It followed from this order that, at that stage, the application for permission to appeal contained in the notice of appeal had been adjourned pending the receipt of Mr Walker's comments.

11. The reference in Judge Behar's order to the case having settled and A-M having made no order and the comment that there was apparently nothing to appeal are directly linked to each other since, if no order had been made, the appeal procedure could not operate because it is geared to challenges to court orders or judicial decisions. However, in this case, A-M had made decisions as to how much Mr Walker was liable to pay Mr Sumpton and how much he was entitled to charge and invoice Mr Walker. Those decisions had then been used by the parties to reach an agreement as to an informal procedure that they would adopt to give effect to those decisions and to bring the hearing to a speedy conclusion. A-M then approved that agreement by bringing the hearing to an end. On analysis, therefore, there were two related decisions, directions or orders that could be appealed: A-M's decision as to the overall sum that Mr Sumpton was liable to repay Mr Walker and her subsequent decision that the hearing and the claim should be brought to an end without delivering a formal judgment.
12. Mr Walker submitted detailed comments in a letter dated 10 December 2007 which made it clear that he considered that there was something to appeal. He stated:

"I am asking for [A-M]'s original verbal order and the subsequent settlement to be set aside on the grounds that the order was incorrect/not valid as the result of the error in the judge's calculation, and for a new order to be made directing [Mr Sumpton] to repay me £250 less the £20 already paid."

In other words, he was seeking to appeal A-M's verbally announced decision as to Mr Sumpton's liability to repay Mr Walker and her subsequent decision to conclude the claim and the hearing in the light of the parties' procedural settlement agreement. Mr Walker also made it clear that he was also seeking permission to appeal because he believed that A-M had been in error in dismissing his claim for Mr Sumpton's negligence in agreeing the adjoining owner's surveyor's fee.

13. The notice of appeal and Mr Walker's comments were placed before Judge Knowles who, on 13 December 2007, granted Mr Walker permission to appeal. This decision is not expressly recorded in the order that was made Her order, as worded by the court official who drew it up, was dated 27 December 2007 and it stated:

"Upon reading a letter from the appellant dated 10 December 2007 and the Appellant's Notice

It is ordered that:

The appellant to file and serve a transcript of the whole of the proceedings before [A-M] of 16 October 2007 by 4.00pm on 28 January 2008 thereupon the court will make further orders/give further directions.

If the appellant fails to comply with paragraph 1 hereafter, the Appeal to be struck out without further notice."

14. As can be seen, the order, as worded, did not expressly state that permission to appeal had been granted. However, the order, by necessary implication, granted Mr Walker permission to appeal or is premised upon permission to appeal already having been granted. This can be deduced from the wording of the order for these reasons:

(1) Since Judge Knowles had been provided with the relevant papers, it would have been clear to her that these were placed before her to deal with the permission to appeal application that had previously been adjourned to enable Mr Walker's comments to be obtained and these comments were now before her. Thus, she was required to address his application for permission to appeal. She clearly made a decision on that application since the order that was made was made as a direct consequence of its adjourned consideration being placed before her. Had she intended to further adjourn the application for permission, the wording of this order would have been similar to the wording contained in Judge Behar's previous order. In other words, Judge Knowles's order would not have referred to "the appeal being struck out" but would have stated instead that "the application for permission to appeal will be dismissed".

(2) The order would not have referred to "make further orders/give further directions" since such further orders or directions would have followed on from the order of 27 December 2007 and all such orders and directions were only appropriate for an appeal hearing. This shows that Judge Knowles's order was worded on the basis that permission to appeal had already been granted.

(3) Had the order been adjourning the permission application rather than granting permission, the order would have stated that, if the transcripts were served, the court would "consider and decide the application for permission to appeal".

(4) The order stated that if it was not complied with, "the Appeal will be struck out" which is a clear reference to an appeal for which permission to appeal has already been granted.

(5) The court will only order that a transcript of the hearing should be provided to enable the application for permission to appeal to be decided in exceptional circumstances. If these are present, the relevant rule provides for a "suitable" transcript to be provided for the permission consideration. This means that, in such circumstances, the required method of providing a suitable transcript is by use of an agreed note of the relevant evidence (see paragraph 5.8(5) of CRP RD 52). Mr Walker had already provided such a note. Thus, the wording of Judge Knowles's order could not have been made in connection with a permission hearing and must instead have been made in connection with a forthcoming appeal hearing following the grant of permission.

It follows that when Judge Knowles's order of 27 December 2007 is read objectively against the background of the circumstances surrounding its making, it clearly implied that permission to appeal had already been granted. This was how Mr Walker understood the order and, whatever was the intended meaning, the court was required to give effect to its objective meaning unless and until the order was formally varied or withdrawn by a subsequent order of the court.

15. Thus, the order, when drafted by the court officials, should have expressly stated that permission to appeal had been granted. Had the order been drawn up correctly by the court staff so as to record in terms that permission to appeal had been granted, some of the subsequent difficulties that Mr Walker faced would have been avoided. One of Mr Walker's complaints about the court staff's handling of his appeal is that he reasonably understood that Judge Knowles's order had granted him permission to appeal and on three subsequent occasions he asked the court staff to confirm that he had been granted permission but he never received an answer to these requests. The first request was made verbally to a member of the court's counter staff on 14 January 2008, the second in a letter to the court dated 24 January 2008 and the third in a letter dated 14 May 2008. Had the court intended, by the order dated 27 December 2007, to have adjourned the permission application, these requests to confirm that permission had been granted should have been promptly answered in wording that made it clear that permission had not yet been granted. The failure to answer these requests provided a further indication that permission to appeal had been granted.
16. On receipt of a copy of Judge Knowles' order, Mr Walker was unclear what he was required to obtain and how he was to obtain it. Regrettably, no explanation of these matters was provided to him with the order as it should have been. Unsurprisingly, Mr Walker was unaware that the hearing had been recorded and assumed that A-M's notes and annotated timesheets were with the court since she had informed the parties that her notes would be left on the court file. He therefore produced his own summary of the evidence from his own notes which he sent to Mr Sumpton who agreed that the summary was accurate. This summary was lodged with the court on 14 January 2008. On 18 January 2008, the court wrote to Mr Walker and acknowledged receipt of his notes. It then went on:

"Please find enclosed Form EX 107 [concerned with the ordering of a transcript] plus a list of transcribers to enable you to request an official transcript of the hearing should you wish to do so."

17. This letter suggested that Mr Walker had an option as to whether or not to obtain a transcript of the hearing from professional transcribers. He was understandably unwilling to incur the cost of this exercise since he considered that most of the transcript would be irrelevant, the cost would be considerable and the appeal involved a small sum of money. He therefore wrote a detailed letter to the court dated 24 January 2008 explaining that the court already had his agreed summary of the evidence with necessary supporting documents, Mr Sumpton's timesheets annotated by himself with A-M's findings and A-M's notes of evidence and annotations. He pointed out that it would cost at least £550 to obtain a transcript for what was a very small claim and that, since the only relevant evidence had occupied a very short period of time at the hearing, he requested that instead of obtaining an official transcript, he should be allowed access to the court tape in order to transcribe the relevant evidence that lasted for about 30 minutes from the court tape and to provide that to the court once it had been authenticated by a court official. The letter also repeated a request for the court to confirm that he had been granted permission to appeal. The court responded in a letter dated 25 January 2008 by stating that Mr Walker's letter would be answered once his letter had been placed before a circuit judge.
19. Mr Walker's application was a reasonable one to make in the context of a small claims appeal. The CPR makes special provision for such appeals so as to ensure that they are dealt with both speedily and economically. Paragraph 5.8 of CPR PD 52 provides that, for small claims appeals, the appellant need not file the reasons for judgment but the court can order a "suitable record" of the reasons for judgment of the lower court to be filed to enable it to decide the appeal. A "suitable record" is defined as including notes of judgment. He complied with this requirement by filing his notes whose accuracy had been agreed to by Mr Sumpton and his copy of the timesheets annotated with A-M's announced findings and by referring to A-M's notes of the evidence and her annotated copy of the timesheets which were on the court file. Moreover, paragraph 5[4] of CPR PD 52 as it stood in 2007 provided:

"If the court considers that the appeal has a real prospect of success and grants permission to appeal, it will determine what further transcripts (if any) may be required for the appeal hearing."

Thus, Mr Walker was entitled to ask the court to reconsider the decision to order "further transcripts" and to consider whether any cheaper and faster step could be taken to provide a suitable record of A-M's findings and was also entitled to expect the court staff to process that application and then to communicate to him the results of that application promptly.

20. It is still unclear what happened next. From Mr Walker's perspective, he heard nothing from the court until he enquired in April as to what had happened and was finally informed that the court file had been lost. At the same time, the court asked him to provide it with a complete duplicate file to include all the evidence summaries, hearing documents, correspondence with the court, pleadings, court orders and the notice of appeal. He lodged this duplicate file with the court on 26 April 2008. He then heard nothing until he received a letter dated 7 May 2008 from the court which read:

"This case and Appellant's notice has been referred back to Deputy District Judge Amin-Mannion. She has said that the matter was treated as settled by the defendant paying the claimant £20 in the court, and on that basis the parties agreed that they did not require a formal judgment and hence none was given.

unless therefore it can be demonstrated how the District Judge went astray in her arithmetic, it would seem that this is a Consent Order and therefore would not be susceptible to an appeal. The court is therefore not minded to order transcript at this stage." (emphasis added).

21. This letter, given the words that I have emphasised in the extract that I have set out above, suggests that the application for permission to appeal had been referred to A-M who had decided that permission should be refused with the result that the order to produce a transcript was rescinded. This was the first intimation given to Mr Walker that his appeal, or proposed appeal, had been referred back to A-M. He was somewhat taken aback by what he understood to be the message conveyed by the letter which he took to be:

(1) A-M had had referred to her the question of whether he should be granted permission to appeal and had decided to refuse him permission to appeal because he was seeking to appeal against a consent order.

(2) A-M had, in consequence, also decided to rescind the previous order that he should obtain a transcript of the hearing.

22. Mr Walker therefore replied in a letter dated 14 May 2008 setting out his understanding of the letter and pointing out that he was still awaiting an answer from a circuit judge to his letter dated 24 January 2008. His letter, in effect, asked the court to inform him what A-M had been asked to decide, to provide an answer from a circuit judge to his application to supply a partial transcript and to confirm that he still had permission to appeal, as granted by Judge Knowles, notwithstanding the wording of this letter. In this letter, Mr Walker also asked the Court Manager:

"I have addressed this to you as Court Manager because I am concerned that errors on the part of the court have compromised my claim and I no longer have confidence that writing to the court will resolve the issues involved. I am therefore asking if it is feasible for me to meet with a member of the court staff to review the problems which have arisen to ensure that all the facts are placed before the relevant judge?

It is a matter of regret that this request was neither granted nor responded to. Had the Court Manager met Mr Walker, she would have learnt of his concerns and would no doubt have drawn them to the attention of the relevant circuit judge or could have arranged a procedural telephone hearing with a circuit judge. Either of these steps would have rapidly led to a resolution of all outstanding problems concerning the hearing of his appeal.

23. The court continued to maintain to Mr Walker that the original court file had been lost and that his duplicate file had been placed before A-M until, some thirty months later, in a letter dated 26 July 2010 written to Mr Walker by the Head of HMCS Customer Services^[4], Mr Peter Bolton, HMCS finally provided Mr Walker with a completely different account of what had happened within Wandsworth County Court in the period between January and May 2008. This account was said to have been based on the contents of the court file that one of Mr Bolton's senior caseworkers had carefully considered. This account was as follows:

(1) Mr Walker's letter of 24 January 2008 was referred to Judge Knowles who, on 25 January 2008, wrote this note on the file to court staff:

Please refer this file and the Appellant's Notice and subsequent letters/orders to DDJ Mannion to see if she has sufficient notes of this hearing to comment.

The difficulty from the perspective of the circuit judge is that the Appellant seems to be referring to matters said in the course of the hearing – not just on judgment – in support of his arguments. Without a note of what was said, it is difficult for me to take a view. When we have DDJ Mannion's comments, please refer the file back to me."

(2) The original court file was sent to A-M at the court she was sitting at. A-M saw it and Judge Knowles' request on 19 March 2008 and made the following note on the file in response:

"There is no useful comment I can make without a full transcript save that upon considering quantum the difference between the parties appeared to be £25. The matter was treated as settled by the defendant paying the claimant £20 in court. On the parties agreeing that they did not require a formal judgment none was given."

The file with that note on it was then returned to the Wandsworth County Court staff who referred it to Judge Knowles.

(3) On 25 April 2008, Judge Knowles, having read A-M's comments on the file, directed the court staff to write a letter to Mr Walker. HMCS has never disclosed what the terms of that direction were.

(4) On 26 April 2008, Mr Walker lodged a duplicate file with the court. He did this before the court staff had drafted the letter that Judge Knowles had directed should be sent to him. This duplicate file was referred to Judge Knowles on 6 May 2008 for directions. HMCS has not disclosed the covering note or the contents of any communication from the court staff that was sent or given to the judge with the file. The judge made the following note to the court staff on 7 May 2008:

"No the original file was not lost. I sent it up in boxwork on Friday 25 April. I am therefore going to do nothing further until the directions I gave have been actioned."

(5) The duplicate file was wrapped up with the court file and the composite file was returned to the court staff and the letter that Judge Knowles had previously directed should be sent to Mr Walker was then drafted, dated 7 May 2008 and sent to Mr Walker.

24. It is unfortunate that Mr Bolton's letter does not record the precise terms of Judge Knowles' note to the court staff that she sent to the staff on 25 April 2008 which led to the drafting of the letter dated 7 May 2008. However, it is clear that the letter that Judge Knowles directed the staff to send was different to the one that was actually sent since the letter actually sent conveyed the impression that A-M had decided that Mr Walker would not be granted permission to appeal because there had been a consent order which was not susceptible to an appeal and that the previous direction to supply a transcript was withdrawn^[5] whereas Judge Knowles had already decided that permission to appeal would be granted. Her direction must in fact have been to the effect that, notwithstanding the terms of the application dated 24 January 2008, Mr Walker was to provide a full transcript for the appeal hearing.
25. Mr Bolton's letter also contained two inaccuracies. Firstly, it stated that it was not possible to appeal a matter that had been concluded by consent and secondly that Judge Knowles had refused permission to appeal. In fact, not only was it possible to appeal a matter that had been concluded in the way this matter had been concluded^[6] but Judge Knowles had granted permission to appeal.
26. The unnecessary uncertainty that Mr Walker now understandably felt, which was reflected in his letter to the court dated 14 May 2008, could have been removed by the court staff if they had provided him with an answer to his two outstanding queries, namely:

(1) Would the court accept Mr Walker's proposal to lodge a limited transcript rather than the full transcript, and

(2) Would the court confirm that Judge Knowles had already granted Mr Walker permission to appeal.

Instead, in replying to Mr Walker's letter in a letter dated 3 July 2008, the court merely sent him a second copy of the letter dated 7 May 2008 with this covering letter:

"Her Honour Judge Knowles has seen the Court file and requested that her letter that she wrote and asked to be sent to you on 25.04.08 is now sent to you. This was originally sent to you on 07^th May 2008."

27. HMCS has not disclosed the terms of Judge Knowles' direction to the court staff which led to this letter being written. It is a letter which added to Mr Walker's confusion since it suggested that Judge Knowles had seen the court file on 25 April 2008 and had herself then drafted the letter that had been sent out on 7 May 2008 and that the judge was under the impression that that letter had not yet been sent. However, Judge Knowles had not drafted the letter, she had merely directed that a letter be sent and, moreover, the letter had already been sent. The terms of the letter dated 3 July 2008 are such as to raise doubts as to whether Judge Knowles had been shown a copy of Mr Walker's letter dated 14 May 2008 or had issued any direction as to the terms of the reply dated 3 July 2008.
28. The court staff, in replying to Mr Walker's letter dated 14 May 2008, should somewhat belatedly have sent him an order drawn up by the court and approved by Judge Knowles which:

(1) answered his application dated 24 January 2008 by giving directions as to what parts of the transcript should be provided by Mr Walker and in what form it should be provided; and

(2) confirmed that he had been granted permission to appeal.

Brief reasons for rejecting Mr Walker's request for permission to provide a limited transcript prepared by himself should have been obtained from Judge Knowles if that had been her decision.

29. Mr Walker subsequently received two further letters from the court which were in response to his renewed request for directions as to how the appeal should proceed and which appear to have been produced following maladministration by the court staff. The first of these two letters was dated 8 August 2008. It was a reply to Mr Walker's letter of complaint dated 16 July 2008 which had set out in some detail his complaints about the earlier correspondence and had enclosed a further set of relevant documents that he had previously supplied to the court. The response read:

"The Judge has now viewed your letter and stated that a transcript is needed as you have no evidence that the case was [not] concluded by consent and the judge who dealt with your case has stated that it was. If it was concluded by consent, the case is not appealable. Since you intend to appeal you need the transcript to prove that there was no consent."

The word "not" in square brackets was not in the text of the original letter. I have added it to the text set out above so as to make sense of the letter. It is not clear what direction Judge Knowles gave to the court staff that led to this letter being drafted since that direction has not been disclosed. Further, it is not clear what documents were made available to Judge Knowles to enable her to give this direction.

30. The letter itself is incomprehensible, when considered in context, for a number of reasons:

(1) The letter appears to suggest that the application for permission to appeal remained to be decided. However, Judge Knowles had already granted Mr Walker permission to appeal or, at the very least, the court had already issued an order that had had that effect.

(2) The letter was in error in suggesting that Mr Walker believed that "the case was not settled by consent". In fact, he had always accepted that the parties reached agreement as to how to bring the case to an end. Thus, in his letter to the court dated 10 December 2007, he had stated:

"I am asking for [A-M]'s original verbal order and the subsequent settlement to be set aside on the grounds that the order was incorrect/not valid as the result of an error in the judge's calculations and for a new order to be made directing [Mr Sumpton] to repay me £250 less the £20 already paid."

(3) The letter failed to address Mr Walker's principal contention that A-M had erroneously included in her decision three hours of Mr Sumpton's time that she had already ruled he was not entitled to charge for with the consequence that the parties had mistakenly agreed to settle the claim at too low a repayment figure.

(4) The letter erroneously appeared to suggest that Mr Walker was refusing to provide a transcript of the hearing. In fact, Mr Walker had accepted the need to provide a transcript but he wished to rely, if permitted to do so, on his agreed notes of evidence that he had already provided and a limited portion of the transcript that he wished on grounds of economy to transcribe himself. Thus, the only issue with regard to the transcript was whether it was necessary for him to incur the expense of using professional transcribers to provide the whole transcript rather than his providing the relevant limited parts of it.

(5) The letter erroneously stated that a transcript was not needed: "to prove that there was no consent." No-one was contending that the transcript was needed to prove that there had not been consent. A small section of the transcript was, however, needed for the wholly different purpose of seeing whether or not the agreement had been induced by judicial error.

(6) The letter made no reference to Mr Walker's application to be permitted to provide an informally produced transcript of the relevant part of the hearing or his contentions that five sixths of the transcript were irrelevant and ought not therefore be ordered and that the relevant part should be provided by him without incurring the expense of a professional transcriber.

(7) The letter made a serious error in suggesting that "if [the case] was concluded by consent, the case is not appealable". In fact, a settlement arrived at in the circumstances of this case could be appealed on any or all of these three separate grounds, namely that:

(a) the consent agreement should be set aside as a result of procedural irregularity (CPR 52.11(3)(b));

(b) the consent agreement had been entered into on the mistaken understanding of both parties that £25 rather than £250 was the sum that Mr Walker was entitled to recover (CPR 3.1(7) and the cases cited in the notes to CPR 40.6 relating to the setting aside of consent orders and judgments agreed to by mistake^[7]); and

(c) A-M had erred in reaching her decision as to liability and quantum (CPR 52.11(3)(a)).

(8) The letter made no reference to Mr Walker's grounds of appeal that A-M's decision contained a material error which had caused the subsequent agreement to have an erroneous factual basis so that the parties' consent had been vitiated by mistake and by serious procedural irregularity.

(9) The letter did not attempt to answer the two questions that Mr Walker had asked the court to answer in his letter dated 24 January 2008 and which he had complained remained unanswered^[8].

31. The court's letter was stated to have been written on the direction of Judge Knowles. The judge had obviously directed the court staff to send a letter to Mr Walker but she appears to have left it to them to draft it and the resulting draft does not appear to have been provided to the judge to approve before it was sent out since she is unlikely to have approved a draft containing so many obvious and clearly identifiable grammatical and factual errors. Thus, the mistakes contained in the letter appear to have resulted from administrative error and not from judicial direction. However, since HMCS has not disclosed a copy of Judge Knowles's directions to the court staff to answer Mr Walker's letter of complaint, it cannot currently be ascertained how faithfully the terms of the court's letter reflected the judge's direction.
32. The second unsatisfactory letter that was sent by the court was dated 21 October 2008. This was in reply to Mr Walker's letter dated 14 October 2008 and it stated:

"Your Appeal can not be processed with out the transcript of the hearing you are appealing against.

I apologise for the lost of your file and the delay you have faced in this case this was due to the fact that the Judge who heard your matter is not resident in this court. Our senior Judge asked that the file be sent for her comments but the file got lost in transit. We have since recovered the file which has been referred to a number of judges who have come to the same conclusion that without a transcript of the hearing there can be no appeal.

If you have any order to the contrary you could forward it to the court but if not no further communication can be entered into concerning this matter as this is a judicial matter."

33. This letter contained a number of errors:

(1) The letter erroneously suggested that the "Appeal" (and not, it is to be noted, the "application for permission to appeal") could not be processed without the transcript of the hearing. However, as Mr Walker had already pointed out to the court when applying for a variation of the court's order dated 27 December 2007, the appeal could proceed perfectly satisfactorily on the basis of an informal transcription of a small part of the proceedings. Moreover, if Judge Knowles had directed that that application should be dismissed, the court should have notified Mr Walker of that direction and the brief reasons for making it and should also have issued it as a formal order.

(2) The letter appears to have been written on the basis that Mr Walker was disputing that he should provide the transcript. However, he was merely applying for a modification of the previous direction that he should provide a complete officially transcribed transcript.

(3) The letter repeats the erroneous statement that the original court file had been lost but, as HMCS's complaints team finally stated in 2010, the original file had never been lost and had in fact been used to obtain A-M's comments and had then been referred back to Judge Knowles. Since it would have been evident from a perusal of the file that it had never been lost, the suggestion that the file had been lost was one that should never have been made. Furthermore, HMCS's complaints team has never provided an explanation for the original error in stating that the file had been lost nor for why it took two years for this error to be discovered and for Mr Walker to be informed of it.

(4) The letter suggested that Mr Walker's file had, since it had been recovered (i.e. since mid-May 2008), been referred to a number of judges who had all concluded that, without a transcript, there could be no appeal. In fact, there is no evidence that has so far been provided that the file had been referred to any other judge than Judge Knowles since its suggested recovery in mid-May. The "number of judges" that are referred to in the letter have not been identified and their views, which should not have been sought in any event, were not recorded on the court file as they should have been had they been obtained. Therefore, the suggestion that a number of judges had all concluded that no appeal was possible without a full transcript appears to have been a serious error.

(5) The request in the letter that Mr Walker should supply the court with a copy of any contrary order appears to be a request for him to supply a copy of any order which showed that the court had already determined that there could be an appeal without a copy of the full transcript having been obtained. However, since Judge Knowles' order dated 27 December 2007 had had the effect of granting permission to appeal, the requested order was already with the court as were copies of Mr Walker's various requests that the court should consider and decide his application to vary the terms of that order.

34. As with previous letters, this reply appears to have been drafted by the court staff following a general direction from Judge Knowles to respond to a letter from Mr Walker. The terms of that general direction have not been disclosed so that the extent to which the mistakes contained in the letter are the responsibility of the staff member who drafted the letter are not apparent. However, it is likely that these mistakes had resulted from administrative action and not judicial direction.
35. Mr Walker, at this point, abandoned his appeal in despair. This decision appears to have been prompted by the unhelpful and unexplained statement that the court would not consider any further communication about his appeal since "this is a judicial matter". Moreover, he did not regard the sum of money at stake in his appeal as justifying any more of his time or the expense and stress of pursuing his appeal any more. However, he remained determined to identify the extent of any maladministration by HMCS staff who had been involved both in his claim in Wandsworth County Court and in the complaints procedures that he had initiated.

Matters of Complaint

36. In considering what matters of complaint might reasonably be open to Mr Walker, a number of matters should be borne in mind. These are:

(1) The relevant administrative procedures involved the court staff in processing a small claims appeal where the sum at stake was less than £1,000. A small claims appeal should be pursued in an informal, expeditious and inexpensive manner. Thus, it was very important that the court staff should speedily produce directions when needed that were clear and precise and an accurate reflection of the relevant judicial direction so as to assist the small claims appeal process and its objectives.

(2) The court staff who are concerned with the processing of all county court cases including those allocated to the small claims track have a number of administrative functions to perform. These include the provision of helpful and clear information to, and answers to the queries of, litigants; drafting and issuing court orders timeously which give full effect to relevant judicial intentions; obtaining judicial approval to the drafts of relevant documents prepared by them; dealing promptly, accurately and fairly with complaints and bringing all relevant material to the attention of a judge when seeking a judicial direction or order. It is also clearly very important that any answer, letter or order drafted by a member of the court staff should be clear, grammatical and as accurate as possible.

(3) There is a distinction between judicial functions, which only a judge may undertake, and administrative and clerical functions, which a member of the court staff has to undertake. Self-evidently, a member of the court staff may not undertake a judicial function. In practice, particularly when dealing with correspondence or in drafting court orders, the dividing line between these two functions is not clear cut. Thus, for example, a judge may direct that a letter from a litigant should be answered without making it clear what the detailed answer should be. In such circumstances, the member of the court staff concerned must ensure that any draft he or she prepares faithfully complies with the judicial intentions and instructions that have been given and is approved by the judge in question before it is sent out.

(4) When necessary, a court staff member confronted with a significant query or complaint, should not attempt to deal with that matter on paper but should consult with a judge to ascertain whether the matter should be listed for a telephone hearing by a judge. It is a matter of judgment when that step should be taken and, if in doubt, an appropriate judge should be consulted to advise whether it should be taken.

37. The significance of the distinction between administrative action taken by a member of the court staff and judicial action or decisions is of particular importance in relation to complaints to the Ombudsman. This is because section 4(1) and Schedule 2 of the Parliamentary Commissioner Act 1967 ("the Act"), which governs the jurisdiction and functions of the Ombudsman, provides that HMCS is subject to investigation by the Ombudsman. However, section 5(3) and Schedule 3 of the Act provide that any action taken by any member of the administrative staff of any court or tribunal, so far as that action is taken at the direction or on the authority (whether express or implied) of any person acting in a judicial capacity, is not subject to investigation by the Ombudsman. Some of Mr Walker's complaints made about letters and orders drafted by the court staff might on detailed investigation be seen to fall into this excluded category but many others appear to be about the administrative actions of court staff. Within this latter category are documents drafted by court staff which do not reflect the directions given to that staff member, at least when the draft was significantly different from a judge's direction or was significantly outside the scope of that staff member's authority or when relevant documents were sent out without first being presented to a judge for correction and approval.
38. Mr Walker's overall complaint is that he had a highly arguable appeal in a small claims case on which no more than £950 turned. The issues were relatively simple and the appeal, had it gone to a hearing, would have been capable of being presented in a very short time and could have come on for a hearing soon after the original hearing at little cost, time or stress. This potential appeal was, however, turned into a nightmare in terms of time, cost, stress and complexity and, after a year of such difficulties, Mr Walker abandoned it since he had lost all confidence in the small claims county court process. Overall, he considered that he had been very badly treated by several court staff members and that his appeal was no longer cost-effective. He wanted, however, to pursue his complaints about his perceive ill-treatment at the hands of HMCS which he did firstly by exhausting HMCS's internal complaints procedures and secondly by his complaint to the Ombudsman.
39. The following generic difficulties were, as Mr Walker sees it, caused by HMCS staff:

(a) Processing the Claim and Appeal.

(1) Failing to draw up court orders when these should have been drawn up, drawing up court orders and drafting letters that failed accurately to reproduce the orders and directions of the judges who had made them and failing to obtain the relevant judge's approval to drafts before these were sent out;

(2) Drafting and sending out letters and orders whose wording was unclear or ungrammatical and which contained a large number of significant errors;

(3) Failing to pass on documents to judges and that should have been passed on to enable appropriate orders and directions to be issued;

(4) Failing to communicate sufficiently and accurately with Mr Walker and failing to provide him with accurate and sufficient information when he asked for it;

(5) Erroneously stating that important information, documents and files concerned with the claim and its appeal had been lost, then that they had been recovered and then that they had never been lost in the first place when a check would have shown the first two of thesse statements to have been incorrect and the third to have been unecessarry.

(6) Failing to meet with Mr Walker, particularly when he asked for a meeting, and failing to address his concerns.

(7) Acting in ways that were, or reasonably appeared to Mr Walker to be, dishonest or deliberately misleading.

(b) Processing Mr Walker's Complaints

(8) Failing to address Mr Walker's complaints fully or to provide him with all the information and answers to which he was entitled.

(9) Failing to explain what instructions had been given to court staff by judges and what documents had been supplied to judges when they had been asked to make a judicial decision or issue a judicial direction or order.

(10) Failing to explain each of the mistakes relating to the suggestion that important documents had been lost, recovered and never lost in the first place and as to why it took so long for Mr Walker to be informed of the correct position.

40. Mr Walker contends that all his complaints involve administrative action taken by a member of the Wandsworth County Court staff or of the HMCS complaints handling staff and none of them involve action taken by such staff at the direction, or on the authority (whether express or implied), of any person acting in a judicial capacity. He also contends that all his complaints amount to maladministration which in fairness should be investigated by the Ombudsman.

Mr Walker's Reference to the Ombudsman

41. Mr Walker submitted his complaint about HMCS to the Ombudsman through his Member of Parliament as required by the statutory provisions governing such complaints. The complaint was dated 24 April 2009 and it read as follows:

"I applied to the Wandsworth County Court to be allowed to appeal a decision made at a previous hearing. I responded to the two judicial requests/orders and the court then lost the file.

When I reconstructed the file for the court, I believed that there as maladministration on the part of WCC as the result of which judicial directions I subsequently received conflicted both with one another and with the requests/orders to which I had already responded, leaving me in an untenable position and unable to proceed.

I believe that the admin staff failed to place the whole of the reconstructed file before a judge, and instead extracted my appellant's notice and tried to restart my request without the supporting documents."

This complaint was supplemented by a bundle of documents that included the documents that I have referred to in this judgment. These documents were supplemented by further documents submitted by Mr Walker with his second request for a review of the Ombudsman's adverse decision that the complaint would not be investigated. This further request, dated 2 September 2010, included copies of the correspondence he had had with HMCS's Customer Services following the first review decision not to review the Ombudsman's adverse decision. That subsequent correspondence involved further complaints and it produced significant new evidence contained in the Head of Customer Services' letter to Mr Walker dated 26 July 2010^[9].

42. A complaint to the Ombudsman goes through two stages. The first stage is a screening stage in which the Ombudsman's staff determine whether to investigate the complaint. The Ombudsman has a wide discretion in this regard and as a matter of policy takes it by applying a test of fairness and reasonableness taking into account the published Principles of Good Administration and the circumstances of each case. In this case, the relevant Principles are to be found in the Principles of Good Administration and Good Complaint Handling published by the Ombudsman and the Framework for the Provision of Front Office Services in the Civil Courts published by HMCS^[10].
43. The Ombudsman decided not to investigate Mr Walker's complaint and informed him of that decision in a letter dated 27 July 2009. The decision was reached because the Ombudsman had not seen any evidence that maladministration by HMCS had led to unremedied injustice for Mr Walker. The reasons given for that decision were as follows:

"(1) While Mr Walker said that the appeal had 'gone through two stages' it does not appear that the court had yet granted permission to appeal. (2) Rather it seems that the court was trying to determine whether there was anything to appeal (3) as Mr Walker's case settled on consent. (4) The evidence does not suggest to us, as Mr Walker claims, that HMCS ignored an order and only put the appellant's notice before a judge and not the rest of the file. (5) HMCS confirmed that more than one judge saw the file and it does not seem to us that the papers provided contradict this. (6) It appears that HMCS' response to Mr Walker in January 2008 may have been incomplete. (7) However, many of his questions asked for clarification of a judicial order. (8) As such, it would not have been within HMCS' expertise to reply. Instead, they put his letters before judges for them to respond. This seems reasonable to us.

(9) HMCS admitted they lost Mr Walker's file and we do not condone this. However, it appears that they have since recovered the file (10) and put it to a senior judge who has given directions that are not within our remit to question. (11) We have seen no evidence to doubt HMCS' word on this matter. Consequently, (12) it does not seem to us that HMCS' actions have ultimately hindered Mr Walker's appeal in the way he suggests."

The particular passages which Mr Walker contends are erroneous are prefaced by a number in brackets. I deal below with each numbered passage in turn^[11].

44. That decision was confirmed in the review decision dated 20 November 2009. The review decision did not add to the reasons given in the original decision save that the reviewer added this further reason:

"… (13) I acknowledge that you disagree that a transcript is necessary and that the judge has not seen all of your file, but such disagreement is not itself evidence of an outstanding injustice. (14) I have seen nothing to suggest that the loss of your file has thwarted your appeal. (15) It seems to me that it has simply stalled because a judicial decision requires your appeal to have a transcript of the hearing before you can proceed further. (16) That is not evidence of a failing on the part of HMCS but a judicial decision upon which the Ombudsman cannot comment."

Mr Walker's Application for Judicial Review

45. Following Mr Walker's submission of the further material, the Ombudsman concluded in a decision dated 25 November 2010 that the previous review decision should not be changed and that the Ombudsman would not be taking any further action. Mr Walker then initiated this judicial review application. In it he seeks to quash the decisions of the Ombudsman not to undertake a formal investigation of his complaints and an order that those decisions should be reconsidered.
46. Mr Walker contends that the Ombudsman failed to consider whether the court and HMCS complaints handling staff had performed their functions properly and failed to give reasonable consideration to the weight of evidence that he had provided to support his view that there had been significant and sustained maladministration by court staff.
47. It is contended, in the grounds of defence filed on behalf of the Ombudsman, that the decision-makers acting on her behalf had a very wide discretion in order to decide whether or not to investigate complaints of maladministration. In concluding that there was no evidence of maladministration that had led to unremedied injustice for Mr Walker and in taking the decisions not to investigate, they took decisions that they were entitled to take and, in consequence, there is no public law basis for challenging these decisions. It is also contended that the judicial review was initiated out of time and should be refused on that basis.
48. The deputy High Court judge refused permission on these grounds:

"Mr Walker may or may not be able to impeach the compromise on the basis of mistake. But on what appears to be the facts there was no order of the court against which he could have appealed. Accordingly, how his application for permission to appeal was handled by HMCS does not appear to have been capable of prejudicing any such appeal."

The Decisions of the Ombudsman

49. I will first consider whether the decision-maker properly took into account the various matters referred to in the refusal decision and the first review decision.
50. There are 16 separate matters that were arguably erroneously taken into account in the refusal decision. These and the reasons why they were arguably wrongly taken into account were:

(1) "While Mr Walker said that the appeal had 'gone through two stages', it does not appear that the court had yet granted permission to appeal."

Possible error

The court had granted, or was to be taken as having granted, permission to appeal. The order dated 27 December 2007^[12] is only explicable as one that gives preliminary directions for the appeal hearing and as one that recognises and acknowledges that permission to appeal has already been, or should be taken to have been, granted.

Comment

The court had already granted permission to appeal and Mr Walker was correct in stating that the court had gone through two stages.

(2) "Rather it seems that the court was trying to determine whether there was anything to appeal."

Possible error

The statement appears to misstate what the court was trying to do. The order dated 27 December 2007 had directed Mr Walker to file and serve a transcript of the whole proceedings. This was, or it appeared to have been, made in connection with an appeal for which permission had already been granted. Although not stated in the order, it was, or could only have been, a direction made under CPR PD 52.8[4] requiring Mr Walker to obtain an official transcript of the entire hearing before A-M for use at the hearing of the appeal for which permission had already been granted. Mr Walker had not challenged the need to provide a transcript but, in his letter dated 24 January 2008, he applied for a variation of the order of 27 December 2007 to enable him to confine the order to the provision of an informal transcript of the relevant evidence (being about thirty minutes of evidence extracted from a three-hour hearing). This application was a reasonable one to make since the CPR provided that in small claims appeals a "suitable" record of the relevant evidence and not an official transcript should be provided.

Comment

From 27 December 2007 onwards, the court was, or appeared to be, engaged in an exercise of determining Mr Walker's application to vary the order directing him to obtain a transcript, it was not determining whether a transcript was needed at all.

(3) "Mr Walker's case settled on consent".

Possible error

It is an over-simplification to state that Mr Walker's case settled by consent. According to Mr Walker, what happened was that the judge announced her decision as to liability and quantum and then invited the parties to agree to an informal procedure to give effect to that decision. They were invited to agree that the proceedings should be brought to an end without a formal order or judgment being given. The ending of the proceedings would be achieved by Mr Sumpton paying Mr Walker £20 in cash in court. What Mr Walker was seeking to achieve by his appeal was to re-open the hearing that the judge had impliedly directed should be permanently stayed and to obtain a correction of the mistake that he contended she had made when announcing her verbal decision.

Comment

The case had not settled by consent in the normal meaning of that term and the appeal was seeking to set aside such a settlement. The case, as a whole, had not settled. The case had been decided by A-M and, in consequence, a procedural settlement had been reached to the effect that the case would be permanently stayed with no formal judgment being given. It was therefore incorrect to regard the case as having been brought about by a simple settlement or the appeal as being an attempt to challenge a simple settlement agreement.

(4) "The evidence does not suggest to us, as Mr Walker claims, that HMCS ignored an order and only put the appellant's notice before a judge and not the rest of the file."

Possible error

This statement is referring to the papers that court staff sent to A-M on the instructions of Judge Knowles. In his original complaint to the Ombudsman, Mr Walker had complained that, contrary to Judge Knowles's direction that the entire court file should be sent to A-M, the court staff had only sent her the notice of appeal and A-M's response was, in consequence, inevitably based on inadequate information and erroneous. At that time, Mr Walker had reasonable grounds for thinking that that is what the court staff had done since the court staff were still standing by their contention that the original file had been lost and that A-M had been sent the replacement file provided by Mr Walker from which, when he had handed it into the court, he had seen the counter clerk extract the notice of appeal with the words "that's what I want". His belief that inadequate information had been sent to A-M was reinforced by the wording of the court's letter dated 7 May 2008 which had stated that only "the case and appellant's notice" had been sent to her. However, when two years after his original complaint had been sent to the Ombudsman, Mr Walker received HMCS's letter dated 26 July 2010, he learnt for the first time that HMCS was contending that the court file had never been lost and that that file, and not any duplicate file or document, had been sent to A-M. However, even then, he was not given an explanation as to why the court had informed Mr Walker in the first place that the file had been lost, why it had not informed him that court staff had discovered that it had never been lost as soon as the court woke up to that fact and why it had taken a further period of at least two years for HMCS to inform him that it had never had been lost.

Comment

Mr Walker's original complaint was appropriately worded, given the facts that were then known to him at that time. Having provided the Ombudsman with the additional information that HMCS had given him, there remained considerable doubt as to what the correct factual position was about the file and the information that A-M had been provided with and why the error that was made had been made and why it had been maintained with for two years. It was necessary for the Ombudsman to consider whether, on that significantly altered basis, Mr Walker's renewed request for a review decision and for a formal Ombudsman's investigation was justified.

(5) "HMCS confirmed that more than one judge saw the file and it does not seem to us that the papers provided contradict this."

Possible error

This is a reference to the court staff's suggestion that more than one judge had seen and commented on the file after A-M had seen it and that more than one judge had expressed the opinion that the appeal could not go ahead in the absence of a full transcript^[13]. However, there is no evidence that any judge, other than Judge Knowles, saw or was shown the file after A-M had returned it to Wandsworth County Court. Furthermore, it would have been highly irregular for any judge to have been shown the file in order to express an informal opinion about the case, certainly without that having been recorded on the file.

Comment

There was no apparent basis for the unusual suggestion that several judges had been shown and had expressed views about the contents of the file. There was, moreover a significant contradiction in the court's assertion that this had happened that might be said to warrant the investigation of the Ombudsman. This was that there had been no disclosure of any document which showed that any other judge except Judge Knowles had seen the court file once it had been returned to Wandsworth County Court in March 2008.

(6) "It appears that HMCS' response to Mr Walker in January 2008 may have been incomplete."

Possible error

The suggestion appears to be that HMCS's responses that were communicated to Mr Walker in January 2008 were incomplete but not in any significant respect. However, these responses were incomplete in two fundamental respects, they did not answer Mr Walker's query seeking confirmation that he had been granted permission to appeal and they did not provide him with any answer to his application to vary the transcript order of 27 December 2007.

Comment

The two respects in which HMCS's response was incomplete go to the heart of Mr Walker's complaints about HMCS which he wished the Ombudsman to investigate. The implied suggestion that those complaints were not consequential is, therefore, erroneous.

(7) "However, many of his questions asked for clarification of a judicial order."

Possible error

The characterisation of Mr Walker's complaints as being complaints about the way that his requests for clarification of judicial orders does not appear to have been made having considered fully the nature of his complaints. Mr Walker had asked the court staff two questions that could certainly be fairly characterised as ones that sought clarification of a judicial order. The court staff obviously could not answer them themselves but they should have sought and obtained from Judge Knowles clear answers to both questions and then communicated those answers to Mr Walker. The court staff never appear to have sought answers to Mr Walker's queries seeking and with an answer to his application to vary the original transcript direction. These queries can be interpolated as follows:

"Please may I be permitted to respond to the direction to provide a full official transcript by supplying the 30 minutes of relevant evidence by myself typing out the transcript from the tape having been given access to it by the court? I wish to respond in this way because this is small claims arbitration, only £250 is at stake, the cost of a full transcript is £550, much of the transcript is irrelevant and I can type out the relevant parts at no additional cost. I am, in any case, entitled to provide "a suitable record" since this is a small claims appeal."

The courts staff should have taken steps to obtain an answer to this request or, if one could not be obtained, to list the application for a telephone hearing in front of a circuit judge.

Similarly, despite at least three separate requests for confirmation, the court staff never appear to have processed this request or passed it onto Judge Knowles or to have asked her to provide a response. Alternatively, they never passed on her answer if one was in fact given.

Comment

The nature of Mr Walker's complaint was, if well-founded, about a series of administrative errors committed by court staff and was not about a judicial order or decision.

(8) "As such, it would not have been within HMCS' expertise to reply. Instead, they put his letters before judges for them to respond. This seems reasonable to us."

Possible error

HMCS has never provided a full account of the exchanges between the court staff and Judge Knowles nor of the documents that they provided her with to accompany each request that they made for her to view the court file and to provide an answer, direction or order. Similarly, HMCS has not identified what documents were in that file. It is therefore not possible to conclude, unless the complete court file is inspected, whether it is correct to state that Mr Walker's letters and their contents were sufficiently brought to Judge Knowles's attention or that the court staff provided sufficient approved answers to those letters.

Comment

Mr Walker's particular complaint is that the court staff did not fully or sufficiently bring his queries about the transcript direction and his permission to appeal application and his various letters requesting information or court action and his complaints about inaction to the attention of Judge Knowles. Moreover, he also complains that court staff drafted and sent off a series of answers which did not reflect Judge Knowles's instructions, which were poorly drafted and which had not been approved by her.

(9) "HMCS admitted they lost Mr Walker's file and we do not condone this. However, it appears that they have since recovered the file."

Possible error

The file was, as is now belatedly apparent, never lost. It was finally stated by HMCS when answering Mr Walker's complaint two years after it was stated to have been lost that instead of it being lost, it was sent promptly to A-M in January 2008 and that she considered it and returned it to Wandsworth County Court in March 2008 and her response was then considered by Judge Knowles in April 2008.

Comment

The Ombudsman's response does not address Mr Walker's complaint that he has never received an adequate explanation as to why it was ever erroneously stated that the file had been lost in the first place and later erroneously stated that it had been recovered and why the non-loss of the file was not reported to him in May 2008 but only two years later without any explanation for the previous errors. Given the history that is set out above, the court's errors in stating that the file had been lost and in not correcting that error until June 2010 appear to be both series and clear evidence of maladministration.

(10) "Put it to a senior judge who has given directions that are not within our remit to question"

Possible error

Mr Walker's complaint does not appear to have been accurately summarised. Mr Walker's complaint is, when analysed, a three-fold complaint:

(1) It would seem that court staff did not bring his queries and complaints to Judge Knowles's attention;

(2) Judge Knowles's directions were not clearly and accurately set out in the form of an order whose draft had been approved by her and her supporting reasons were not obtained from her nor provided to Mr Walker;

(3) The documents that were sent out were poorly drafted, unclear and full of errors.

(11) "We have seen no evidence to doubt HMCS' word on this matter (i.e. complaint (10) above)."

Possible error

HMCS has never disclosed the full exchanges between court staff on the one hand and Judge Knowles and A-M on the other, has never identified what documents were provided to each judge on each occasion that they were consulted and has never confirmed what documents were on the court file. For example, it has not been revealed whether A-M's notes and the time sheets that she had annotated were on the court file and, if they were, whether they were provided to A-M when she was consulted. Therefore, given the history of this matter and the relevance of this information to Mr Walker's complaints, the comment that there is no evidence to doubt HMCS's word, before seeing the relevant evidence, does not appear to be justified.

Comment

Given the unfortunate history of the "lost" file and the complaints about correspondence and court orders, it is suggested that consideration should have been given to calling for the entire court file so that it could be inspected before a final decision not to conduct a formal investigation was taken.

(12) " Consequently, it does not seem to us that HMCS' actions have ultimately hindered Mr Walker's appeal in the way he suggests."

Possible error

Mr Walker has, he contends, been hindered in two ways. Firstly, he had a small claims appeal involving £250 which raised a very short point about the judge's announced decision. That appeal could and should have been heard and determined at little or no cost and within about three months from the initial hearing. As a result of his suggested shortcomings of the court staff, Mr Walker could no longer stand the strain, time and cost of proceeding with that appeal because "the game for him was no longer worth the candle" and he abandoned it. Secondly, he has suffered, as he sees it, the indignation of being the victim of maladministration by court staff which has not been recognised and which has caused him considerable stress and hurt feelings.

Comment

Mr Walker was entitled to the satisfaction of knowing that the Ombudsman had fully considered both of these two types of hindrance before a final decision was taken as to whether or not to conduct a formal investigation.

51. There are 4 further matters that were arguably erroneously taken into account in the review decision. These and the reasons why they were arguably wrongly taken into account were:

(13) "I acknowledge that you disagree that a transcript is necessary"

Possible error

Mr Walker has never stated that a transcript was not necessary. He provided his notes of the evidence when he was initially asked to comment about the apparent settlement of the case. Then, when he was directed to provide a full transcript, he accepted the need for a transcript to be provided but sought to be permitted to adopt a cheap and reasonable means of providing the relevant transcript.

Comment

Mr Walker's request would appear to have been a perfectly reasonable one which accorded with the relevant CPR Practice Direction that is concerned with small claims appeals. That request was never answered and the procedure became bogged down as a result, he contends, of court staff maladministration.

(14) "I have seen nothing to suggest that the loss of your file has thwarted your appeal."

Possible error

I have already dealt with Mr Walker's concern with this comment^[14]. The suggestion that the loss of his file had not thwarted his appeal appears to have been unwarranted when considered against the history of that appeal process.

(15) "It seems to me that it has simply stalled because a judicial decision requires your appeal to have a transcript of the hearing before you can proceed further."

Possible error

There is no need for an appeal from a judicial decision to be supported in all cases by a transcript. In small claims appeals, one is only needed very rarely and then only when it is necessary to enable the appeal to be decided fairly and following a judicial direction. Mr Walker's complaint is that his appeal stalled because the court did not address his request to provide the directed transcript in a simpler and cheaper form and because the court staff, in the critical letters that were sent to him, did not process that request or any judicial direction in response clearly and accurately in a court order or a letter drafted by court staff member.

Comment

It was particularly unfortunate that the court manager declined to meet Mr Walker when he requested a meeting to discuss his complaints and that he was not provided with appropriate answers to his queries and complaints in the period April to November 2008.

(16) "That is not evidence of a failing on the part of HMCS but a judicial decision upon which the Ombudsman cannot comment."

Possible error

The borderline between judicial direction and administrative action is clearly a difficult one to draw in this case. This is because Mr Walker's complaints relate to the way in which court staff processed a particular case file from soon after it was opened through what turned out to be a long and lengthy journey. The complaints related to matters which are, in part, purely administrative action, in part concerned with the court staff acting as a go-between, in part concerned with the court staff acting under judicial direction, in part with them acting purely administratively and in part in a manner which fell outside the scope of the relevant judicial direction that they were working to. Mr Walker's complaint is that the reasons provided by the Ombudsman in refusing to investigate do not address these difficulties or provide a clear answer as to why the complaints are, on analysis, correctly characterised as being solely about judicial direction which, in consequence, fell outside her jurisdiction.

Comment

The evidence provided by Mr Walker appears to show, at the very least, that a substantial part of his overall complaint is concerned with matters which fall within the Ombudsman's jurisdiction and that the reasons for asserting that none of it falls within that jurisdiction appear to be inadequate.

52. I must finally deal with the refusing judge's reason for his paper decision that refused Mr Walker's application to apply for judicial review. This decision was to the effect that there was no order of the court against which Mr Walker could have appealed. Accordingly, the manner in which his application for permission to appeal was handled by HMCS could not have prejudiced any appeal because he had no appeal to bring. However, for the reasons set out above, there were two decisions of the court from which he could appeal. Firstly, there was A-M's announced decision as to her findings about liability and quantum. This was never drawn up but it can nonetheless provide the basis for an appeal. Secondly, there was the agreement of A-M to the parties' agreement that the case would be brought to an end by the payment of £20 by Mr Sumpton. That agreement of A-M amounted to an order by the court that the case would be stayed on agreed terms. Finally, if the view is correct that there was nothing to appeal from, Mr Walker would have further substantial complaints to the effect that he was never told this during the lengthy procedural history of his attempted appeal and that the court had erroneously proceeded on the basis that it was concerned with whether the agreement could be set aside or disregarded, not with the question of whether the court lacked the jurisdiction to entertain an appeal of any kind.

Conclusion

53. The grounds for interfering with a decision of the Ombudsman are limited given the wide discretion that she is provided with in order to decide whether or not a court should intervene. However, as Collins J found in R v Commissioner for Administration (ex parte Turpin) EWHC Admin 503 at paragraph 36:

If it is clear that the Ombudsman in reaching a decision has misdirected himself as to a matter of law or has failed to have regard to a relevant consideration or has had regard to an irrelevant consideration … then the court can and should intervene.

My function is not to determine whether the court should intervene but merely to determine whether, on the basis of the factual background that I have summarised and the possible errors in the Ombudsman's decisions that I have discussed, Mr Walker has an arguable case for obtaining a quashing order and an order requiring the Ombudsman to consider afresh whether to hold a formal inquiry into his complaints.

54. I must first resolve two threshold questions. Firstly, I must decide whether the judicial review claim was started promptly and within three months of the relevant decision. On behalf of the Ombudsman, it is contended that the relevant decision being challenged is the review refusal decision dated 20 November 2009 so that the claim lodged on 26 January 2011 was well out of time. However, this case was unusual since Mr Walker, following the first review refusal decision, undertook further investigations and raised a further complaint to HMCS and, by its letter dated 26 July 2010, HMCS answered that complaint by providing significant further information which placed its earlier answers to earlier complaints in a very different light. As a result, Mr Walker raised what amounts to a fresh complaint and asked the Ombudsman to undertake a formal investigate all his complaints as they stood in the light of this further information. The Ombudsman, in a decision dated 25 November 2010, declined to do so. Given that unusual background and the unexplained volte face of HMCS, I conclude that the relevant decision was that of the 25 November 2010 and that all three of the Ombudsman's decisions formed part of a continuous decision-making process that was only concluded by the last of her three decisions. In those circumstances, Mr Walker's judicial review claim was lodged in time.
55. Secondly, I must resolve whether it is arguable that the view of the deputy High Court judge in refusing permission was wrong. I am clear that it was wrong for the reasons set out above^[15]. In summary, I conclude that his decision was wrong because there were relevant decisions that could be appealed since A-M had decided to stay the proceedings and had also decided what sum should be awarded to Mr Walker. There were, therefore, relevant decisions from which an appeal could be brought. Moreover, the court appears to have resolved at an early stage that, in principle, an appeal could be brought and also decided that permission for that appeal to be brought would be granted.
56. As to the substantive application, I am satisfied that permission should be granted. I have sought to demonstrate at unusually great length that the decisions of the Ombudsman are arguably unreasonable so that, for the reasons summarised by Collins J in ex parte Turpin in the extract set out above, there is an arguable case for her decisions to be judicially reviewed.

Final Concluding Observation

57. I finally conclude with this observation. When all is said and done, Mr Walker's complaints about HMCS, his complaint that the Ombudsman decided not to formally investigate those complaints and this judicial review are all concerned with a small claims appeal of low value. Mr Walker, in reality, wishes the HMCS to acknowledge formally that he was the subject of maladministration by court staff and also seeks payment of appropriate financial compensation. I invite the Ombudsman to give further thought as to whether she wishes to maintain her decision not to investigate Mr Walker's complaints. I also invite her to consider making a proposal to Mr Walker and HMCS that they and she should collectively attempt to resolve Mr Walker's complaints against both HMCS and the Ombudsman an informal, speedy and economical way without further intervention of the court. If she is prepared to put such a proposal to both of the other parties, she could at the same time propose a way that all three parties could adopt as the means of attempting such a resolution
58. In those circumstances, I will direct that there should be a stay of the judicial review proceedings for three months for attempts to be made to dispose of these disputes informally and economically as soon as possible. If Mr Walker has not achieved a resolution of his claims against the Ombudsman by 4 June 2012, he is to give notice to the Administrative Court stating whether his judicial review claim is to be withdrawn or pursued. If he gives notice by 4 June 2012 that his claim is to be pursued, the hearing will be set down for a one day hearing. If he does not give that notice, the claim will be dismissed. There is no need for Mr Walker's attendance when this judgment is handed down but he is welcome to attend if he wishes.

HH Judge Anthony Thornton QC.

Note 1    See paragraphs 9 and 10 below.    [Back]

Note 2    See paragraph 22(2) below.    [Back]

Note 3    A so-called “Tomlin Order”.    [Back]

Note 4    Her Majesty’s Court Service is the Executive Agency of the Ministry of Justice responsible for the administration of the Civil Courts.    [Back]

Note 5    See paragraph 19 - 20 above.    [Back]

Note 6    See paragraph 29(7) below.    [Back]

Note 7    Found in both the Supreme Court Practice (“The White Book”) and the Civil Court Practice (“The Green Book”).     [Back]

Note 8    See paragraphs 15 and 17 above.    [Back]

Note 9    See paragraphs 22 – 24 above.    [Back]

Note 10    The current versions of the Ombudsman’s documents were published on 10 February 2009 and that of the HMCS document in September 2008. I have assumed for the purposes of this permission decision that these were the relevant principles in force throughout the period of Mr Walker’s complaints which predominantly relate to the period October 2007 – November 2008 although his complaints about complaint handling extend up to July 2010.    [Back]

Note 11    See paragraphs 49 - 50 below.    [Back]

Note 12    See paragraphs 13 – 15 above.    [Back]

Note 13    See paragraph 32(4) above.    [Back]

Note 14    See paragraph 49(12) above.    [Back]

Note 15    See paragraph 51 above.    [Back]