Mark Moss, R (on the application of) v The Service Complaints Ombudsman of the Armed Forces (No 3) (Remedy)

On quashing a public decision, the court may remit the matter with directions necessary to secure a lawful and fair reconsideration. The direction may require a new investigator where the same investigator has prepared successive reports whose reasoning has been judicially reviewed, and the circumstances would reasonably create a perception of unfairness. The court should identify the error and give effect to its judgment without deciding issues reserved to the primary decision-maker. It should not prescribe the substantive outcome, add findings on matters not decided, or give advisory directions merely to manage future litigation. A fresh decision may repeat material from the quashed decision if the decision-maker considers it relevant, fair and consistent with the court’s findings.

The claimant successfully challenged the defendant Ombudsman’s substance decision under section 340H(1)(a), concerning service complaints and related matters. The earlier judgment, [2023] EWHC 3311 (Admin), held that the decision lacked a reasonable basis in several respects and granted judicial review.

This sequel judgment concerned the appropriate remedy. The parties agreed that the separate maladministration decision under section 340H(1)(b) should remain undisturbed. The issues were whether the substance decision should be quashed and remitted, whether reconsideration should involve a new investigator, and whether the court should make further findings, substitute its own decision, or award damages.

1. Remedy. The claim was granted. The Ombudsman’s section 340H(1)(a) substance decision dated 18 March 2022 was quashed and remitted under section 31(5)(a) of the Senior Courts Act 1981. The Ombudsman was directed to reconsider the matter in accordance with the findings in the earlier judgment and in conjunction with a new investigator.
2. New investigator. The investigator had a key front-line role: analysing the materials, forming a reasoned assessment, drafting and presenting the report. The same investigator had prepared successive assessments, including the assessment underlying the quashed decision. Although the decision had not been quashed for apparent bias, the need for a genuinely fresh merits decision, and the importance of reasonable perception, justified requiring a new investigator. The court held that this direction fell within its power to direct reconsideration under section 31(5)(a). The court considered that HCA International Ltd v CMA [2015] EWCA Civ 492 did not prevent that result, since the circumstances crossed the threshold of reasonably perceived unfairness.
3. Limits of the order. The court declined to prescribe findings, require substitution of particular conclusions, make a prospective advisory declaration, identify untouched background passages, or direct that particular matters be reopened. Its supervisory role did not displace the Ombudsman’s primary decision-making function, and no sole justifiable outcome had been found.
4. Effect of remittal. The Ombudsman and new investigator were not prohibited from repeating statements in the quashed decision, provided they considered them relevant, fair, consistent with the judgment and proper on the merits. The maladministration decision remained undisturbed. The claimant’s proposed damages and substitution orders were refused because the statutory conditions were not met and no cause of action in damages against the Ombudsman had been established.
5. Costs. Agreed costs of £2,000 and £1,080 were recorded. Save as agreed, there was no order as to costs.

This was a remedy judgment following the same court’s earlier judicial review judgment, [2023] EWHC 3311 (Admin), which allowed the claim. The present court quashed the substance decision and remitted it for reconsideration.