Radoslaw Kaleta, R (on the application of) v The Judicial Appointments and Conduct Ombudsman

Judicial review examines the lawfulness, rationality and procedural fairness of the decision under challenge. It is not an appeal and does not provide an opportunity for the court to substitute a fresh decision. Where the Judicial Appointments and Conduct Ombudsman is concerned, the statutory scheme limits review to the process by which a complaint about judicial conduct was handled. The Ombudsman cannot review the merits of the underlying judicial decision. Permission should be refused where the claimant identifies no arguable basis for concluding that the Ombudsman’s decision was irrational or otherwise unlawful.

The claimant sought permission to apply for judicial review of the Ombudsman’s decision dated 5 September 2022. The decision concerned the handling of his complaint about delay in the delivery of an employment tribunal judgment and the response of the Regional Employment Judge to that complaint.

The Ombudsman concluded that the complaint did not warrant a full investigation. He considered that the appropriate process had been followed, while recognising that some responses had been delayed. The claimant alleged pre-determination, inadequate investigation, irrationality, insufficient reasons and failure to consider material matters. Permission had been refused on the papers by Lang J, and the claimant renewed the application before the court.

1. Permission to apply for judicial review was refused. The claimant had not identified an arguable ground on which the Ombudsman’s decision could be shown to be irrational or otherwise unlawful.

2. Under section 110 of the Constitutional Reform Act 2005, the Ombudsman’s remit was confined to reviewing the process by which a complaint about a judicial office-holder was handled. Section 110(6) prevented review of the merits of the underlying decision. Since the Ombudsman did not consider a review necessary, the first statutory condition was not met and section 110(7) prevented him from carrying out a review.

3. The Ombudsman had considered the relevant correspondence and tribunal papers. He addressed the Regional Employment Judge’s investigation, the explanations for delay, the alleged failure to address the claimant’s concerns and the timing of the responses. His conclusion that the appropriate process had been followed was not arguably irrational.

4. The claimant’s disagreement with the employment judge’s conduct, the Regional Employment Judge’s conclusions and the underlying employment tribunal matters could not convert the judicial review claim into an appeal. The relevant question was whether the Ombudsman’s own decision was unlawful, irrational or procedurally defective.

5. Allegations of intentional influence, dishonesty and concealment were unsupported by evidence and irrelevant to the lawfulness of the Ombudsman’s decision.

• High Court (Administrative Court): permission to apply for judicial review was refused after renewal following refusal on the papers by Lang J.