What happens if I take PHSO to Judicial Review?
You lose, they win, and it costs you loads of money.
Judicial review is essentially PHSO’s ‘get out of jail free’ card. It makes them ‘accountable’ by law but in reality an individual citizen never wins so it doesn’t bother them one little bit if you threaten to take them to court. Similar to the review process a judicial review does not look at the decision itself, but at the process employed when coming to that decision. As the Ombudsman has total ‘discretion’ concerning the way he handles cases, the Judge will inevitably decide that the Ombudsman’s actions are ‘reasonable’. This evidence from an oral hearing between Miss Monica Dyer V PAC 1993 explains how ‘discretion’, built into the 1967 Act, will effectively deny the chance of any successful court action. (PCA = Ombudsman)
…it does not follow that this Court will readily be persuaded to interfere with the exercise of the PCA’s discretion. Quite the contrary. The intended width of these discretions is made strikingly clear by the legislature: under section 5(5), when determining whether to initiate, continue or discontinue an investigation, the Commissioner shall “act in accordance with his own discretion”; under section 7(2), “the procedure for conducting an investigation shall be such as the Commissioner considers appropriate in the circumstances of the case”. Bearing in mind too that the exercise of these particular discretions inevitably involves a high degree of subjective judgment, it follows that it will always be difficult to mount an effective challenge on what may be called the conventional ground of Wednesbury unreasonableness. www.bailii.org/cgi-bin/markup.cgi
Officially PHSO has very little to say about the judicial review process, preferring to leave it as a mysterious process which requires solicitors, barristers and deep pockets.
‘Once you have received our response, that is the end of our internal complaints procedure. If you disagree with our response you can challenge it through the courts using judicial review. We are unable to give you advice about this and you might need to get your own independent or legal advice on how to do this.’
They do not inform you that you have three months from the date of their final report to file your papers. If you make a complaint to PHSO and transfer to their RAFT team then the clock is already ticking. If they take longer than three months to deal with your complaint then you may be ‘out of time’ for putting papers to court. customer_care_appeals
What is a judicial review?
All government bodies are subject to judicial review as in theory this allows members of the public to redress the balance of power through court action. It can be very daunting for an individual to enter the world of legal mumbo-jumbo where participants use the obscure language of Dickens in order to cloud the proceedings with smoke and mirrors. It costs a lot of money as you have to pay the costs of the other party as well as your own and the legal remit is so narrow that most do not get accepted by the judge and fail to proceed to court at all. general overview of judicial review and here an interesting research paper from the House of Commons library with a thorough outline of the limitations of judicial review and reference to previous case law. 2006 Judicial Review research paper
From the 2018/19 PHSO Annual Report
We received and responded to 24 pre-action letters in 2018-19. Twelve did not convert into legal proceedings. There were twelve new applications for judicial review of our decisions. This is an increase of four applications from the previous year. Eight claims were refused permission to go forward to a full hearing. Three of those decisions are being appealed. Four claims have been recently issued and are pending.
You are extremely unlikely to win if you take PHSO to judicial review and neither will you get any publicity for trying, so putting in legal papers won’t cause them much concern. If they think you have a really strong case, which may trigger adverse publicity, they usually agree to re-investigate in order to quash the action. There is no guarantee, however, that the result of a new investigation will be any different. If you decide to go ahead and your case is accepted for a judicial review you can ask the judge to consider it a case of ‘public interest’ which will mean that you are not liable for PHSO costs if you lose. If the judge is not willing to do this (and they rarely are) you will have to be prepared to sign a blank cheque to cover both your legal costs and those of the defendant. (Could be up to £40,000 to get to the first stage of the court process – a lot more if you go all the way to appeal) If you win the judge would simply order PHSO to review your case again and possibly pay you a small sum of money in compensation. The Ombudsman may well review your case but come to a similar conclusion.
If you want to present your own pre-action protocol letter, and there is nothing to stop you doing so, you will find much useful information in this training pack which also has proforma letters. How to carry out a JR
If you are looking to find a good Solicitor then use the Chambers guide or the Legal 500 to identify firms that specialise in JR and public law. Look at those firms who have won awards or been nominated for legal aid work/pro bono work by the Legal Action Group, the Lawyer and the like. Ask how many JRs the solicitor has done personally and how many they have on the go at the moment. Solicitors are obliged to give you a quote on fees and to set out clearly how much a case or each stage of a case will cost. This should be set out in a very clear letter. If they can’t do this and want to put you ‘on the clock’, and charge you by the hour forget it. Solicitors tend to waste more time on things when they’re not specialists so avoid anyone who isn’t a public law solicitor in the first place.
You may be able to pay for your legal advice from your house insurance policy.
The relevant code of conduct link for solicitors is here sra.org.uk/solicitors/handbook and it has a section on costs. Clients should ask for quotes and ask the solicitor to tell them when they have reached a certain level of costs – e.g. £500 or £1000. If anyone tells you that it is hard for them to quote for the whole case, fine, ask them to quote stage by stage e.g. how much to apply for legal aid, read the file, instruct counsel etc. Solicitors really should be able to do this.
If the Judge rejects your initial JR claim then you can appeal this decision via an oral hearing and put your case directly to the Court. In some cases people have applied for judicial review simply to have this one day in court, knowing that the case will go no further. The present government are clamping down on judicial review applications and if the Judge decides that the case has ‘no merit’ then he can also deny access to an oral hearing. Guardian article: on ‘no merit’ cases
Most applications do not get past the first stage, so all the money you paid to your legal team has produced nothing more than a tidy pile of paper. If you do get a hearing then jolly good luck to you. Only one case has ever been found in favour of a citizen claimant against PHSO and it took the Balchins over twenty years to achieve justice. In 2018 two GPs won a judicial review against the Ombudsman in Miller v Health Service Commissioner for England. The Ombudsman had found against the GPs where a patient suffered an avoidable death. The GPs were backed financial through to the Court of Appeal by their medical insurance organisation. This judgement is likely to deter the Ombudsman from upholding such complaints in the future. If you are thinking of taking JR action you will learn a lot from reading the case notes. Good luck.