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

The Claimant sought judicial review of the Army Board of the Defence Council's appeal determination dated 10 June 2019 arising from a service complaint made under section 334 of the Armed Forces Act 2006. The court held that the Appeal Body had applied the wrong statutory framework by failing to have regard to the Transitional Regulations and had thereby excluded matters it ought to have considered.

The Appeal Body also adopted an unduly narrow approach to the JSP 763 working definition of bullying, treated the Claimant's evidence and credibility irrationally by effectively requiring independent corroboration in every disputed respect, failed to give adequate consideration to relevant documentary and witness material (including contemporaneous medical entries), and unreasonably declined to convene an oral hearing despite central factual disputes. Those defects rendered the Determination procedurally unfair and irrational.

Applying the statutory approach to remedies and the discretion in judicial review, the court quashed the Appeal Body’s Determination and remitted the matter for fresh consideration by a differently constituted appeal body. The court refused to decline relief for delay and ordered costs adjustments as appropriate.

The Claimant, a serving soldier, brought a service complaint in 2015 alleging mistreatment, bullying and harassment by an acting Warrant Officer while serving at BATUS. The complaint was investigated by a Harassment Investigation Officer and determined by a Decision Body in May 2018. The Claimant appealed and the Appeal Body issued a Determination on 10 June 2019.

Nature of the claim and relief sought

• The Claimant applied for judicial review seeking quashing of the Appeal Body's Determination, a fresh appeal before a differently constituted appeal body, and that any new appeal give proper regard to the relevant law and guidance.

Issues framed by the court

1. Whether the Appeal Body applied the correct statutory framework (the Transitional Regulations) and hence whether it wrongly treated matters capable of being the subject of a personal injury claim as excluded.
2. Whether the Appeal Body adopted an unduly restrictive interpretation of bullying contrary to JSP 763 and thereby reached an irrational conclusion.
3. Whether the Appeal Body unlawfully or irrationally failed to make findings of fact on the civil standard and improperly treated absence of full corroboration as fatal.
4. Whether the Appeal Body reached irrational credibility findings.
5. Whether the Appeal Body failed to consider relevant documentary and witness evidence, including contemporaneous medical records.
6. Whether it was procedurally unfair for the Appeal Body to decline an oral hearing and to refuse to hear evidence from the Claimant and other witnesses.

Court’s reasoning and outcome on those issues

The court found that the Appeal Body did err in law by failing to take account of the Transitional Regulations and thereby misapplied the exclusions it relied upon from the 2015 Regulations. That led it incorrectly to exclude consideration of evidence relevant to the cause and extent of any injury and the nature and duration of conduct complained of. The Appeal Body further adopted a restricted reading of the JSP 763 working definition of bullying (treating intention as decisive), when the guidance provides working definitions and recognises a range of relevant considerations. The Decision Body’s and Appeal Body’s approach that disputed allegations without independent corroboration could not be established on the balance of probabilities was legally flawed. The Appeal Body’s adverse credibility findings were disproportionate and inadequately explained, given available contemporaneous materials and witness accounts that had not been given adequate weight. In the circumstances, and given that the disputed credibility and factual conflicts were central to the determination, fairness required that oral evidence ought to have been considered. The court therefore concluded the Determination was irrational and procedurally unfair.

The court quashed the Determination and remitted the complaint for fresh consideration by a differently constituted appeal body, directed that the new body approach the matter informed by the judgment, and refused to refuse relief for delay. The court made orders as to costs and an interim payment on account to the Claimant.

The claim is allowed. The court quashed the Appeal Body’s Determination dated 10 June 2019 and remitted the service complaint for fresh consideration by a differently constituted appeal body. The court reached that result because the Appeal Body applied the incorrect statutory regime (failing to have regard to the Transitional Regulations), adopted an unduly restrictive reading of JSP 763’s working definition of bullying, reached irrational credibility and factual conclusions by treating lack of independent corroboration as determinative, failed adequately to consider contemporaneous medical and witness evidence and acted unfairly by refusing to convene an oral hearing where central factual disputes existed.