Ogilvy, R (on the application of) v London Borough Of Tower Hamlets

Judicial review is concerned with public law rights and issues. A decision does not become amenable to judicial review merely because it was made by a public authority, or because the claimant may lack an effective private law remedy. A dispute arising from the termination of a working relationship remains a private law matter unless a genuine public law issue is identified. Rights under the Employment Rights Act 1996 are ordinarily pursued in an Employment Tribunal, while other private rights may be pursued in the ordinary courts. The Human Rights Act 1998 does not alter that jurisdictional position. Permission to appeal a discretionary costs order requires an arguable error of principle, failure to consider relevant matters, consideration of irrelevant matters, or a plainly wrong result.

Mr Leonard Ogilvy, supplied by an employment agency to work for the London Borough of Tower Hamlets, challenged the termination of that working relationship by judicial review. He alleged procedural unfairness, breach of Article 6, and contravention of section 3 of the Human Rights Act 1998.

Goldring J directed an inter partes hearing. Sir Richard Tucker subsequently held that the complaint raised no public law issue and that judicial review had no jurisdiction. He ordered Mr Ogilvy to pay £1,000 costs. Mr Ogilvy sought permission to appeal against both decisions. The central issues were whether the complaint was amenable to judicial review and whether there was any arguable basis for challenging the costs order.

1. Permission to appeal refused. The proposed appeal had no real prospect of success.
2. Per Lord Justice Mummery, the complaint concerned the termination of a working relationship and did not raise a public law issue. The fact that the respondent was a public authority did not, by itself, make the decision amenable to judicial review.
3. The absence of contractual or other private law remedies did not convert a private dispute into a public law matter. If the complaint concerned rights under the Employment Rights Act 1996, the usual forum was an Employment Tribunal. If it fell outside that jurisdiction but involved a private right, it could be pursued in the ordinary courts.
4. The provisions of the Human Rights Act 1998, including section 3 as relied on by the applicant, did not alter the jurisdictional distinction. The court expressed no view on the merits of the complaints or on any alternative proceedings available to the applicant.
5. The challenge to costs also had no real prospect of success. Permission to appeal from a discretionary costs order would not ordinarily be granted unless the order was plainly wrong, contrary to legal principle, affected by failure to consider relevant facts, or affected by consideration of irrelevant facts. A costs order against the unsuccessful party after a contested inter partes hearing was normal. There was no basis for challenging either the amount or the absence of a special enforcement qualification.

• High Court of Justice, Queen's Bench Division, Administrative Court: Sir Richard Tucker held that the complaint raised no public law issue and that judicial review was unavailable. An order for £1,000 costs was made against Mr Ogilvy.
• Court of Appeal (Civil Division): permission to appeal was refused.