Lexis Nexis – Viability of remedies against public authorities

Topics covered: Judicial Review, Paul Ridout, Public bodies

Public bodies serve the public. Increasingly those affected by public authority decisions are aggrieved and seek a remedy. Clearly if the grievance relates to breach of contract or a tort (civil wrong) the public body may be held liable for remedies arising under the common law. Such claims include breach of statutory duty (where such a duty may both be identified and held to give rise to an expectation of financial recompense). Such claims include breach of a public bodies duties under the Human Rights Act 1998. There is little precedent and such as there is, suggests that compensation may not be substantial- following the level of compensation ordered by the European Court of Human Rights.

However, where no clear course of action exists, the remedies for a genuinely felt governance about the way in which a public body has exercised its powers, are much more obscure.

Legally public bodies are entitled to exercise their powers as they see fit provided that they do not act unlawfully or unreasonably- usually taken to mean acting in a way which no reasonable body exercising such powers would act; sometimes characterised as acting perversely. The bar to such claims is thus very high. In addition, such claims must be bought swiftly (within absolutely no more than 3 months from decision and, often in a shorter period depending on the circumstances), and the remedy is not “as of right” but discretionary. Only in the rarest of cases will the court considering completing evidence.

Those who bring such claims must be ready:-

  • To act quickly.
  • To demonstrate an undisputed factual background.
  • To succeed in [persuading] the court that the decision is obviously flawed.
  • To show that a real remedy is required and that that remedy will have real value and:-
  • Persuade the court to exercise discretion in the claimants favour.

Unless legal aid can be provided (this being increasingly difficult) public bodies are unlikely to respond favourably save in the context of actual legal proceedings. Some would see that as cynical but it is nothing more that the attitude available to any prospective litigant.

Very often the only real remedy is to cancel the decision and force the local authority to think again- may be usually in the same decision but this time framed more carefully.

Recognising the difficulties [provided] by claims for judicial review, Parliament established a system for aggrieved persons to have complaints, about the manner in which decisions have been taken, referred to an “ombudsman.” The Ombudsman will consider complaints about procedural errors but not usually substantive issues. These claims arise where it is recognised that there is no legal remedy and claimants are usually required to undertake that, if the ombudsman agrees to review a complaint, the complainant will not seek a legal remedy later.

Ombudsmen cases usually follow the exhaustion of the public bodies own internal complaints procedures (often having passed through an internal and external review). It follows that the Ombudsman procedure comes at the end of a long process, the whole of which may take a considerable time to complete.

Ombudsmen have wide ranging powers to order redress and this includes compensation pay-outs. However, the compensation payments will be limited for compensation for the flawed process rather than the substantive issues unless it can be shown that the failure had led to the failure to make financial pay-outs otherwise due- e.g. entitlements to publicly supported funding.

Many of those who seek redress by way of judicial review or by complaint to an ombudsman will be disappointed and their sense of injustice will be intensified.

Before commencing such proceeding, it is very important to weigh the strength of the case (which should be stronger than civil litigation) and value of any remedy realistically achievable. This is a critical cost/benefit analysis which should be undertaken.

Those with deep pockets may find such proceedings helpful to make a strong point even if ultimately successful. The cost of such an indulgence may be very high and it will include reimbursement of cost of the successful public bodies’ legal costs.

In short, there are remedies to pursue grievances against the decision making process of public bodies, but, securing such remedies is a far from simple task fraught with pitfalls.

Those who consider such a course should proceed only with utmost caution.

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