Whats in their briefs?

[Marc Berger]

Anybody care to back me?

Local Government
Ombudsman


22 June 2016
Mr Marc Berger
Beam End
Muckton
LOUTH
LN11 8NU
Your ref:
Our ref: 15 013 320
(Please quote our reference when contacting us and,
if using email, please put the number in the email subject line)
If telephoning please contact: 0330 403 4045
email address: D.Campbell@coinweb.lgo.org.uk

Dear Mr Berger

Complaint against West Lindsey District Council

Thank you for your email of the 20 June 2016. You have referred to the possibility of a judicial review.

In a judicial review, the court considers whether the Ombudsman has acted within the law or whether for example he or she has misunderstood the law or failed to take account of a relevant factor, or has taken account of an irrelevant factor. Under the Local Government Act 1974, the Ombudsman is given a wide discretion about whether to conduct or to discontinue an investigation, and whether to find maladministration. It would be necessary to show that the Ombudsman had acted unlawfully in the way that discretion was exercised.

Judicial review is not an appeal against the Ombudsman’s decision and the court could not change the decision. The most that could be achieved would be for the decision to be quashed and sent back to the Ombudsman for re-consideration.

There is a procedure called the Pre-Action Protocol that should be followed before an application for judicial review is made. The Protocol sets out a code of good practice and describes the steps a party should generally follow before the claim is made. You may obtain more information about the Protocol and the guidance and procedure for judicial review by contacting the Administrative Court of the Royal Courts of Justice on 0207 947 6205 or 6000 or at http://www.justice.gov.uk/civil/procrule...ot_jrv.htm. You will see that the Protocol, at paragraph 11 strongly advises claimants to seek appropriate legal advice when considering proceedings and in particular before making a claim.

I should also refer to the question of costs. A claimant must obtain the permission of the court to bring an application for judicial review. The court first considers the matter on the basis of a written claim, together with any written submission by the proposed defendant opposing the grant of permission. The Court of Appeal has said that if permission is refused, the defendant is entitled to seek to recover the costs of the preparation of the written submission.

I hope you would understand that the Ombudsman would need to oppose any application from you and seek to recover his legal costs if your application is not successful. In my experience those costs are normally in the range of £2,500 to £5,000 (plus VAT) depending on the time involved in preparation. It is up to the court to decide on the award of costs, but I am aware that such cost orders are frequently made.

I must of course emphasise that I am giving you this information to ensure that you understand broadly what is involved. I am not trying to prevent you from making a judicial review claim. You have the right to make a claim and it is not for me to seek to stop you pursuing such action, if this is your wish.

The time limit for making an application for judicial review is very strict. It must be made promptly and in any event within three months after the decision concerned.
In your case, the decisions were made on 19 May 2016.

Yours sincerely
Donna Campbell