Wilson, R (on the application of) v Secretary of State for Transport

At the permission stage of judicial review, complaints of procedural unfairness, apparent bias and inadequate reasons are arguable where the decision-maker fails to disclose or address material evidence and gives only bare conclusions. An internal review or complaints investigation will not necessarily cure those defects. It must address the specific complaint and provide an independent and adequate examination of the decision-making process. Apparent bias may be arguable where a decision-maker’s prior employment creates a real possibility of bias in the eyes of a fair-minded observer.

The claimant sought renewed permission to challenge the Maritime and Coastguard Agency’s decision that its investigation of his complaint was unbiased and had identified no breach of the Maritime Labour Convention 2006. The complaint arose after his employment with Princess Cruises was terminated and he alleged victimisation for making complaints.

The claimant alleged that the MCA had failed to give him a fair opportunity to comment on material supplied by Princess Cruises, had failed to give adequate reasons, and had acted with apparent bias because the author of the challenged decision had previously worked for Carnival Cruises, Princess Cruises’ parent company. An Independent Complaints Assessor had reviewed limited issues but had not addressed those matters fully.

1. Permission granted. The claimant’s complaints disclosed arguable grounds for judicial review based on procedural unfairness, apparent bias and inadequate reasons.
2. The MCA’s decision letter was extremely brief. It did not identify the evidence reviewed, adequately address the allegation of bias, or explain why there had been no breach of the Maritime Labour Convention Regulations 2006. If the decision rested on the proposition that victimisation fell outside the Regulations, that reason was not communicated to the claimant.
3. The Independent Complaints Assessor’s report did not cure the defects. The assessor had not been instructed to consider all the procedural complaints and did not address the decision-maker’s prior employment or the specific apparent-bias allegation. General observations about the review process were insufficient.
4. A fair-minded observer, having considered the relevant facts, might conclude that the decision-maker’s prior employment with Carnival Cruises created a real possibility of bias. That issue had not been addressed by the MCA’s review process.
5. The claimant also had an arguable complaint that he had not been given a fair opportunity to comment on evidence and information provided by Princess Cruises during the successive MCA reviews. The court additionally expressed concern about the lack of independence in the internal review and the absence of rigorous legal consideration in a novel complaint.
6. The judge observed that success might not determine the ultimate merits of the claimant’s underlying complaint and encouraged both parties to reconsider their positions and the MCA to review its procedures.

Permission was refused on the papers on 18 February 2015 by Michael Kent QC, sitting as a Deputy High Court Judge. The claimant renewed the application, and permission was granted by Alexandra Marks, sitting as a Deputy High Court Judge, on 25 March 2015.