DAMILOLA JOHN OGUNMUYIWA (R on the application of ) v The Army Board of the Defence Council

In a service-complaint appeal, an appeal body must apply the correct statutory exclusions and consider evidence of injury where it may illuminate the alleged conduct, its seriousness, corroboration or the complainant’s credibility. A working definition of bullying in policy guidance must not be treated as a rigid legal definition requiring proof of intention.

Fact-finders may adopt earlier findings only after conducting their own proper analysis or satisfying themselves that the earlier analysis was sound. The civil standard does not require independent corroboration, and disputed allegations may be accepted in part. Where credibility and central factual disputes cannot fairly be resolved from written evidence, fairness may require an oral hearing.

The claimant, a serving soldier, brought judicial review proceedings against the Secretary of State for Defence concerning an Army Board appeal determination on his service complaint. He alleged bullying, harassment, assault, racial abuse and interference with medical treatment by a superior officer during service in Canada.

The Appeal Body partially upheld one allegation but rejected the remaining complaints. It excluded matters considered capable of supporting a personal-injury claim, applied a restrictive approach to bullying, adopted the Decision Body’s reasoning, made adverse credibility findings, declined to obtain further evidence and refused an oral hearing. The claimant challenged those decisions on six grounds.

1. All six grounds succeeded. The Appeal Body had applied the wrong transitional regime. The complaint was subject to the exclusions in the Armed Forces (Redress of Individual Grievances) Regulations 2007, not the personal-injury exclusion in the Armed Forces (Service Complaints Miscellaneous Provisions) Regulations 2015. Even where personal injury itself was outside the complaint process, evidence concerning injury could remain relevant to the alleged bullying, its gravity, corroboration and credibility.
2. The bullying guidance in JSP 763 described a working definition and did not require a rigid legal test or proof of intention. The Appeal Body’s exclusive focus on intention and the abbreviated definition produced a legally flawed and unreasonable decision-making process.
3. An appeal body considering a complaint afresh may adopt findings of the Decision Body only if its own proper analysis reaches the same result or the earlier findings were themselves the product of appropriate analysis. The absence of independent corroboration does not prevent findings on the balance of probabilities. A complainant’s account may be accepted for one allegation and rejected for another.
4. The Appeal Body’s blanket adverse credibility finding failed to weigh the minor inconsistency it identified against evidence from other personnel, evidence of the respondent’s conduct and matters it had itself accepted. Its reasons also failed to show whether relevant medical and witness evidence had been considered or what weight it received.
5. The applicable fairness question was whether oral evidence was required to resolve a disputed issue of fact central to the decision. Given the importance of credibility, the findings already made and the available witnesses, fairness required the Appeal Body to be willing to hear oral evidence.
6. The statutory relief bar in section 31(2A) of the Senior Courts Act 1981 was not satisfied. It was not highly likely that the outcome would have been substantially the same without the errors. The determination was quashed and remitted, at the earliest opportunity, to a differently constituted appeal body. Costs followed the event, with £30,000 paid on account to the claimant; the defendant’s costs of the adjourned hearing were assessed at £2,365 on the standard basis, to be set off.

First-instance judicial review. The claim challenged the Army Board Appeal Body’s determination dated 10 June 2019. The High Court quashed that determination and remitted the matter for fresh consideration by a differently constituted appeal body.