Abernethy, R (on the application of) v Local Government Ombudsman

Judicial review of an Ombudsman’s decision is available only where an error of law is identified. The court must not substitute its own view where the Ombudsman’s conclusion falls within the range of conclusions reasonably open to him.

Costs remain discretionary. A respondent may recover the costs of resisting permission in a complicated case, particularly where the applicant is a litigant in person and the respondent materially assists the court. In deciding costs after reconsideration of a complaint, the court may treat the substantive issue of whether proceedings should continue as decisive, rather than the technical distinction between a stay and setting aside.

Mr Abernethy challenged several decisions made by Richards J on 19 April 2002. The judge had refused permission to apply for judicial review of a Local Government Ombudsman report dated 30 July 2001, refused permission to appeal a costs order made by Keene J in July 1999, and ordered Mr Abernethy to pay the Ombudsman’s costs of the permission hearing.

The Ombudsman had investigated complaints concerning the closure and relocation of a library. He rejected the complaints save for maladministration concerning inadequate shelf spacing and recommended a payment of £250. Earlier, after the Ombudsman agreed to reconsider the complaint, Keene J stayed the judicial review proceedings and ordered Mr Abernethy to pay £3,000 in costs. The central issues were whether the Ombudsman’s conclusions disclosed an error of law and whether the costs orders were properly made.

Lord Justice Dyson gave the judgment of the court. The applications were dismissed or refused, and there was no order for costs.

1. Challenge to the Ombudsman’s report. The court could interfere with the Ombudsman’s decision only if an error of law was identified. Mr Abernethy had not shown that the Ombudsman’s conclusions, including those concerning catchment areas, fell outside the range of conclusions reasonably open to him. The complaint that the library had opened without a completion certificate under the building regulations or a fire certificate did not require the Ombudsman to find injustice resulting from maladministration. Richards J was therefore correct to conclude that no error of law had been identified.
2. Costs ordered by Keene J. The substantive issue was whether the judicial review proceedings should continue after the Ombudsman agreed to reconsider the complaint. The distinction between setting aside the proceedings and granting a stay was technical. Keene J was entitled to regard Mr Abernethy, who insisted that the proceedings continue, as having fought and lost that contest. The costs order was within his discretion. Although Mr Abernethy had been taken by surprise when the issue was raised before Richards J, he suffered no prejudice because he had later presented all his arguments fully.
3. Costs of the permission hearing. There was no fixed rule governing whether a respondent who successfully resisted permission to apply for judicial review should receive costs. The matter was discretionary. In a complicated case, particularly where the applicant was a litigant in person, it was reasonable for the respondent to appear and assist the court. Richards J had been materially assisted by the respondent’s submissions, so he was entitled to order Mr Abernethy to pay the Ombudsman’s costs.

• Court of Appeal (Civil Division): On 7 October 2002, Lord Justice Dyson dismissed Mr Abernethy’s challenges, refused the applications for permission, and made no order for costs.
• High Court, Administrative Court: Richards J had refused permission to apply for judicial review of the Ombudsman’s report, refused permission to appeal Keene J’s costs order, and ordered payment of the Ombudsman’s costs of the permission hearing. Earlier, Keene J had stayed the judicial review proceedings and ordered £3,000 in costs.