Vlad v Judicial Appointments And Conduct Ombudsman

A complaint about judicial misconduct concerns the alleged misconduct itself, not the wider litigation in which it occurred. A continuing state of affairs does not extend the time for complaining merely because the underlying proceedings remain unresolved or may generate further litigation. Complaints should be investigated promptly while the relevant facts remain fresh. An investigating officer may collect and report material from different sources, including complaints, correspondence, court records and judgments; the ombudsman may use that report as part of the evidence for the final decision. Judicial review examines the legality and fairness of the process, not the merits of the ombudsman’s factual conclusions.

The claimant challenged the temporary ombudsman’s handling and determination of complaints about the conduct of several judges involved in continuing divorce litigation. Most complaints concerned events between 2010 and 2012, but were made in May 2013. The claimant argued that the complaints were in time because the divorce litigation remained continuing. She also challenged the transition between the 2006 and 2013 regulations, the investigative process and the use of draft reports and an investigating officer’s report.

The court considered whether the complaints were out of time, whether the investigation and decision-making process was legally flawed, and whether the ombudsman’s conclusions could properly be challenged by judicial review.

1. Time limits. Regulation 4 of the applicable judicial appointments and discipline regulations required a complaint to be made within 12 months of the event or matter complained of. A complaint concerning a continuing state of affairs could be made while that state continued or within 12 months after it ended. The continuing state of affairs meant the state of affairs relating to the alleged judicial misconduct, not the wider divorce litigation. The fact that litigation might continue for years, or produce fresh evidence or appeals, did not keep earlier complaints in time.
2. Investigation and decision-making. The defendant was entitled to find that most complaints made in May 2013 were out of time. The transition from the 2006 regulations to the 2013 regulations could have been explained more clearly, particularly to a litigant in person, but that did not make the process arguably unlawful. The procedure was not required to be linear. An investigating officer could gather material from different sources and prepare a report forming part of the evidence considered by the ombudsman. References to draft reports or reports not yet finalised did not establish predetermination.
3. Scope of judicial review. The court was not sitting as an appellate tribunal to reconsider the temporary ombudsman’s factual conclusions. The report was detailed, reasoned and based on material properly collected and considered. No arguable procedural error or realistic prospect of success on a full judicial review application was shown.
4. Statutory instruments and costs. The 2013 regulations were made and laid before Parliament and were not within the ombudsman’s personal power to introduce for the purpose of defeating the claimant’s complaint. The application was refused. A protective costs order was refused, and the defendant was awarded its costs except for the costs of the extension-of-time application.

The application had been adjourned by Lewis J on 7 July 2015. The Administrative Court, presided over by Mrs Justice McGowan, refused the application and declined to make a protective costs order.