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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Soar, R (on the application of) v Secretary of State for Justice [2015] EWHC 392 (Admin) (20 February 2015) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2015/392.html Cite as: [2015] EWHC 392 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		20 February 2015

Philip Mott QC :

1. This is an application for judicial review pursuant to permission granted by Charles George QC on the papers on 21 May 2014. It seeks to challenge an adjudication review decision of the Defendant's National Offender Management Service ["NOMS"] dated 6 January 2014, upholding a finding of guilt against the Claimant whilst he was a prisoner at HMP Full Sutton.
2. The substantive challenge is now limited to a single issue, whether there was a procedural irregularity in the adjudication when the adjudicator took evidence from a nurse by telephone in the absence of the Claimant, and then failed to give the Claimant an opportunity to answer or challenge that evidence. The Claimant asserts that this irregularity was so fundamental that the fairness of the adjudication was affected, that it was irrational for the review decision to uphold the finding of guilt, and that in any event the review decision did not address this complaint at all.
3. This challenge is resisted by the Defendant, who also raises an argument that the Claimant failed to make use of a suitable alternative remedy in the form of a complaint to the Prison and Probation Ombudsman ["PPO"]. In respect of this argument, the question arises whether it is available to the Defendant after the grant of permission to apply for judicial review.
4. I heard argument on both the substantive and the discretionary arguments together. I propose to deal with the substantive argument first. In doing so, I will look first at the question of whether the adjudication was unfair, and then (if it is) consider whether the review decision should be quashed.

Was the adjudication unfair?

5. The Claimant is now aged 50, and was at all material times serving a life sentence as a Category B prisoner at HMP Full Sutton. He is post-tariff, which makes any adjudication findings particularly important to his progress and potential release on licence by the Parole Board, as well as to his categorisation.
6. On 13 November 2013 an incident occurred which led to the adjudication hearing. The basic facts are not in dispute, and were contained in a statement from the reporting officer, Senior Officer Lawson, which was read at the adjudication in his absence with the consent of the Claimant. That statement is not in the hearing bundle, but no issue is taken with the description of the incident in the subsequent witness statement from Mr Lawson made for these proceedings.
7. At about 9.15 am on 13 November 2013, during a rub-down search, the Claimant was found to have secreted some bread in the front of his trousers. Mr Lawson became involved when he heard the Claimant protesting that he would not go to work without the bread. He asked the Claimant why he wished to take the bread to work and was told it was "medical". He told the Claimant that he could put in an application to Healthcare to ask whether it was appropriate for him to take bread to work, and if permitted then there would not be any issue. He then ordered the Claimant to go to work and he refused. The Claimant returned to his cell and was locked in. After five minutes Mr Lawson went to the cell to give the Claimant a second chance to comply, saying that it did not have to be this way. The Claimant again refused to go to work. Mr Lawson then placed him on report and charged him with disobeying a lawful order, contrary to rule 51, paragraph 22 of the Prison Rules.
8. The elements of the offence under Prison Rules 51(22) are set out in Prison Service Instruction 47/2011 ["PSI"], at paragraph 2.97 and 2.98 (insofar as relevant to this case), as follows:

i) Did a member of staff give the accused prisoner a lawful order? An order is lawful if it is reasonable and the member of staff has authority to give it in the execution of his or her duties. It is not necessary for the member of staff to specifically state that they are giving an order, only that they give a clear indication, preferably verbally, to a specific prisoner to do or not do something.

ii) Did the prisoner understand what he or she was being ordered to do, or not do? …

iii) Did the prisoner disobey the order? 'Disobey' can mean the prisoner refused to comply with the order, or did not comply with it within a reasonable time (even if eventually complying).

iv) If the prisoner puts forward the defence of not understanding the order or what it required him or her to do, or that the order was not lawful, or any other reason for not obeying, the adjudicator should consider whether this explanation was reasonable in the circumstances.

9. The Claimant had prepared a written defence to the charge. He raised two points, of which only the first features in this challenge, but I set it out in full as follows:

"This was not a reasonable order as complying with it would have entailed doing something which was detrimental to my health for these reasons:

1) I have a chronic bowel condition as a result of which I am prone to constipation. The most effective way I've found of managing this is to eat 6-8 slices of bread immediately after lunch. Not doing so will leave me, in the short term, with the discomfort of constipation and in the longer term with an increased chance of developing bowel cancer.

In the past I have discussed this with members of A Wing staff who told me I should speak to healthcare and that, if healthcare approve it, I would be permitted to take bread from the wing. One member of staff rang healthcare and was told I should make an appointment to see the GP. However healthcare have refused to give me an appointment, telling me to speak to wing staff, which I'd obviously already done, or ask for the matter to be raised at a consultative meeting and that this "… is not a healthcare matter".

In short, wing staff tell me to speak to healthcare who tell me to speak to wing staff.

2) Attending education means having to use a poorly ventilated toilet which doubles as a smoking room."

10. The only documentary evidence of contact with Healthcare on this issue is a written application from the Claimant dated 21 April 2012, some 18 months before the adjudication. It is not clear to me whether it was before the adjudicator. Its position in the hearing bundle suggests that it was, but that may not be an accurate guide. The point is not important as it is evidence which was available to the adjudicator on inquiry. The application states as follows:

"Last Monday I attended healthcare and spoke to a nurse because I have a chronic bowel condition which means I am prone to constipation. For some years I have controlled this by eating a lot of brown bread, but just recently some members of staff (or to be more precise – one individual) has had a problem with this. A member of healthcare staff rang the wing, but I have been unable to find out who they spoke to and the situation has not changed. Please can someone put something in writing to the wing."

There is no record in the papers of any response to this application, nor any further action by staff or by the Claimant.

11. The adjudication hearing was convened on 14 November 2013 at 10.29 am. The adjudicator was Governor Trotman, who had over 20 years experience in the Prison Service, and at least six years as a governor. He had been at HMP Full Sutton for about three months, since August 2013. The record of proceedings is in his handwriting, which is difficult to decipher in copied documents, but he has transcribed it. It is worth setting out extensively his record of what happened after the reporting officer's evidence had been read:

G: Mr Soar you have heard the rep[orting] off[icer's] evidence do you have any Q's or anything that you wish to say

Mr S: No

G: You admit to saying that you wouldn't go to work if you couldn't take your bread

Mr S: Yes

G: And when that Officer told you that you couldn't take your bread you then refused a direct order to go to work

Mr S: Yes that's right

G: I can see from you[r] written statement that you say this is for medical reasons, yet you haven't been diagnosed with any condition

Mr S: Healthcare don't want to get involved. I've put in several apps.

G: I am going to adjourn this hearing to check with HCC [Healthcare Centre]

1041 HRS Adjudication reconvened

G: Mr Soar I have spoken to HCC and they tell me that there is no medical reason why you need to take bread to work with you. They also say that eating bread will not ease your constipation which you refer to in your written statement. In addition to this, whilst at work you are issued with a sandwich, which again asks why you need to take bread off the wing with you. Based on the evidence and what you have told me I am satisfied that you were given a lawful order to go to work, you heard it and disobeyed lawful order. I therefore find the charge proved.

Mr Soar had nothing to say in mitigation and no comments relating to his conduct and adjudication report.

12. I should note that the Claimant, in his witness statement for these proceedings, says that he did try to comment on the evidence from the nurse but the governor interrupted him and made it clear that he was not interested in hearing from him. This assertion is denied by Mr Trotman in his witness statement, for reasons I will deal with later. Whether or not the Claimant is correct, it is clear from the Mr Trotman's own record of proceedings that he moved straight from the report of what he had heard from Healthcare to his finding of guilt.
13. The PSI gives some guidance about procedure at an adjudication hearing.

i) Paragraph 2.30: "Other witnesses [other than the reporting officer] may be called in support of the charge, if the adjudicator agrees their evidence is relevant, and may be questioned by the prisoner, adjudicator or reporting officer. Written evidence may be accepted in the absence of the witness as above if the prisoner has no questions."

ii) Paragraph 2.43: "An adjudicator satisfied beyond reasonable doubt that a charge has been proved will find the prisoner guilty or, if not satisfied, will dismiss the charge."

iii) Paragraph 2.44: "In order to be satisfied that the evidence presented at the hearing has established guilt beyond reasonable doubt the adjudicator will take account of the following criteria …". The subsequent paragraphs list the ingredients of specific offences. The ingredients relevant to this charge are set out earlier in this judgment, at paragraph [8].

14. It follows from these paragraphs in the PSI that a charge must be proved on evidence presented at the hearing, and that the prisoner should be allowed to question any witness called to give evidence.
15. These requirements are hardly surprising, and simply encapsulate the standard principles of natural justice, found also in Article 6 of the European Convention on Human Rights. The very recent decision in R (McCarthy) v Bar Standards Board [2015] EWCA Civ 12 considers these in the context of non-disclosure of a witness's previous statement in a disciplinary tribunal. As Burnett LJ said in paragraphs [24] to [26], the question whether a rehearing is called for "is answered in the same way whether it is approached via the common law of article 6"; "The ultimate question is whether the proceedings as a whole were fair"; the test in criminal proceedings was settled by the Supreme Court in McInnes v Her Majesty's Advocate [2010] UKSC 7; it is, in a non-disclosure case, "Is there a real possibility that the Tribunal would have come to a different conclusion had the disclosure been made?". None of these principles are contentious in this case.
16. The Defendant submits that the information obtained from Healthcare was not evidence, and was not relevant to the adjudication. In effect the adjudicator was just checking in fairness to the Claimant that there was nothing omitted which would change the position. The comment by the nurse about bread not easing constipation was no more than an irrelevant aside which the Claimant did not need to be given the opportunity to deal with.
17. In assessing these submissions I look to Mr Trotman's own evidence about his thought process as adjudicator. He says this in his witness statement:

"In order to determine whether the charge was proven, it was necessary to establish whether the order given was lawful. If Mr Soar had a medical condition which meant that he had to take food to work with him as he had claimed in his statement, the order would have been unlawful and I would have dismissed the charge."

18. On first reading, I thought that "medical condition" might mean "diagnosed and recorded medical condition", so that the purpose of the phone call was merely to establish whether there had been such a diagnosis. However, as can be seen from Mr Trotman's own record of proceedings, it was never suggested that the Claimant had been diagnosed with the medical condition he complained of. As the Claimant said immediately before the adjournment to speak to Healthcare, he had tried but they did not want to get involved. It cannot therefore have been the purpose of the phone call to discover whether there was a diagnosed medical condition.
19. Mr Trotman's statement continues:

"… Nurse Eccles … was able to access Mr Soar's medical records on the NHS System (System 1) and confirm that Mr Soar had no medical condition which required him to take food to work. On the contrary, he said that bread would make his constipation worse. On completion of the call I was satisfied that it was a lawful order, and that it was not necessary for Mr Soar to question the medical advice."

20. On one reading of this statement it may be that Mr Trotman was seeking to confirm that no diagnosis was recorded on the NHS System. If this was all, it was not necessary to ask the Claimant to deal with it, because the information provided accorded with the Claimant's own case in this respect. However, it seems to me to be clear that the use made of what the nurse said went beyond this, and that reliance was placed by Mr Trotman on his opinion that bread would make constipation worse. I come to this conclusion for the following reasons:

i) Mr Trotman says in his statement that "it was not necessary for Mr Soar to question the medical advice". The only advice that had been given was about the effect of bread on constipation. Apart from this, what the nurse said was factual as to the state of the records, not advice or opinion.

ii) When the adjudication was resumed, Mr Trotman proceeded straight to his decision and expressed it in terms which appear to place reliance on the opinion of the nurse about the effect of eating bread. In other words, he appeared to be doubting the credibility of the Claimant in saying that he found eating bread to be effective.

iii) Mr Trotman says in his statement that Mr Soar did not raise any objection after the adjudication as he claims, but: "If Mr Soar did feel, as alleged, that it was unfair not to be able to question the member of staff from healthcare about the eating of bread, he could have raised this at the end of the hearing. It is likely that I would have permitted the Claimant to put questions to the member of staff from healthcare". PSI 2.30 advises that the calling and questioning of another witness should only occur "if the adjudicator agrees that the evidence is relevant". Mr Trotman says that calling the nurse to the adjudications room for questioning would have been disruptive because the Healthcare Centre was half a mile away and the nurses had to run several clinics. His willingness to allow questioning if asked therefore points strongly to his belief that this was evidence, and that it was relevant.

21. The implication of the sequence of events and Mr Trotman's own witness statement is that he was prepared to proceed on the assumption that the Claimant did have a chronic problem with constipation (whether because he had seen the earlier application to Healthcare from April 2012 or simply because he was giving the benefit of the doubt to the Claimant) and wished to establish whether eating bread could assist with such a condition. That involved receiving opinion evidence from the nurse and relying on it. In accordance with the PSI guidelines, the Claimant should have been allowed to question that witness.
22. It is insufficient and unsatisfactory to say that the Claimant could have asked to question the witness after the verdict had been delivered. He should not have been put in that position.
23. It may be arguable that the order was lawful in the absence of a properly diagnosed medical condition and medical advice that the Claimant should be allowed to take bread with him to work. Within the prison system there is a need for certainty, and an officer should not have to investigate alleged but undiagnosed illnesses before giving a lawful order. I do not have evidence before me to enable me to judge whether this would be a proper approach to prison discipline. Certainly it does not appear to have been the approach of Mr Trotman.
24. The test of fairness is whether there is a real possibility that the tribunal would have come to a different conclusion if the procedural error had not been made – in this case if the Claimant had been allowed to question the nurse. Mr Murray declined to put forward a "no difference" submission as he said he had no evidence on which to do so. That is a realistic and principled position to have taken. Firstly, there is no evidence as to whether the nurse's comment was accurate. It may be that the answer depends on the type of bread, and that high fibre brown bread would assist. It may be that no bread would assist with constipation. Secondly, given Mr Trotman's own evidence it would not be possible to argue that casting doubt on the nurse's evidence would not have affected his decision. It may not have stopped the reviewer at NOMS upholding the decision on different grounds, on the basis that Mr Trotman was being too generous, but that was not the basis of the review decision, to which I now turn.

Review decision

25. The request for a review of the adjudication was accompanied by a letter of 10 December 2013 from the Claimant's solicitors. It raised a large number of issues, all but one of which are no longer pursued. Included in these complaints was one clearly set out in relation to the telephone call to the nurse. It was made in the following terms:

"Heard evidence over the telephone from the nurse whilst Mr Soar was not present. Mr Soar was not able to question the evidence from the nurse and was not afforded the opportunity to comment on her evidence. Mr Soar attempted to comment on the evidence, but was interrupted by the Governor and ultimately could not address this evidence."

26. The review decision, dated 6 January 2014, is in somewhat pro forma terms. I do not criticise the use of a template, which may be very useful in ensuring that all necessary matters are covered. I do not suggest that a long letter was required, or that the details of what happened at the adjudication needed to be set out extensively simply to show that they were taken into account. The analogy with decision letters in immigration cases is clear. But it is necessary for the decision-maker to apply his or her mind to the complaints being made, and to address them, albeit briefly.
27. In this decision letter there is reference to the information coming from the nurse, but nothing at all is said about its status as evidence and the failure to offer the Claimant the opportunity to question the nurse. Indeed, the reference to this information followed by the assertion that "The adjudicator investigated both charges thoroughly and your client's guilt was established beyond reasonable doubts" suggests that the reviewer herself took what the nurse said to be part of the evidence in the investigation.
28. I have a witness statement from the decision-maker, Soheli Hossein. She has 14 years experience in her role. She says the following:

"I took into account that the adjudicator was advised by the Healthcare Staff, that the Claimant did not have any condition which would require him to take an extra portion of bread with him and that he was already allowed to take sandwich [sic]. I also noted that Mr Soar did not have any permission from the Healthcare or from his wing staff to take any extra portion of bread. I was satisfied that the adjudicating Governor investigated the charge thoroughly, considering the evidence before him and exploring the defence raised, and the Claimant's guilt was established beyond reasonable doubt."

29. The reference to the Claimant being allowed to take a sandwich is an error. A sandwich was provided to those working at an unspecified time. It was not taken by the prisoner. The error is not in my judgment material, nor was that argued before me. The overall indication is that Ms Hossein placed considerable emphasis on the nurse's evidence, paraphrasing it in terms which went further than the record of proceedings. Later in her witness statement, at paragraph 14, she expressly refers to the adjudicator having "heard evidence from a member of staff from Healthcare in closed conditions". This is justified because "he disclosed the information to the prisoner during the hearing". The fact that this disclosure was only as part of the announcement of the adjudication decision, without any pause for the Claimant to dispute it or ask for further evidence to be called, is not dealt with by Ms Hossein.
30. Matters did not end there because a pre-action protocol letter was sent on 11 February 2014 which repeated the complaint about hearing important evidence over the telephone. It stated that the Claimant, had he heard the nurse's evidence, would have requested the GP to attend as a witness. It complained of the "failure of the Adjudicator to follow the correct evidential procedures".
31. The response from NOMS is dated 14 February 2014. The letter states that the case "has been reviewed a second time". I approach this therefore as a supplementary decision letter, to be read in conjunction with that of 6 January 2014. Although signed by someone else, Ms Hossein says in her witness statement that she was responsible for this second review. It justifies the procedure followed in the following terms:

"The nurse gave evidence to the adjudicator that there was no medical reason for your client to take extra bread to work with him. The evidence was discussed by the adjudicator and your client was able to dispute it and could have requested another medical witness but did not do so."

32. This analysis (as that of Ms Hossein in her witness statement) differs markedly from the submissions of Mr Murray before me, but accords in its first sentence with my analysis of what happened. This was evidence from the nurse received by the adjudicator in the absence of the Claimant. The second sentence is incorrect in that the adjudicator merely announced the evidence as part of his adjudication. There was no discussion. There was no pause to allow the Claimant to dispute it. There was no point at which the Claimant could have requested another medical witness prior to the adjudication. Mr Trotman in his statement acknowledges the last point, and asserts only that it could have been raised "at the end of the hearing".
33. In my judgment neither decision letter properly addresses the failure to allow the Claimant to question the nurse during the hearing, or to request other medical evidence, in order to establish that eating brown bread might reasonably alleviate his constipation.
34. Neither decision letter suggests as an alternative that the evidence of the nurse was in reality irrelevant to the charge, which should have been approached in a stricter manner than that adopted by Mr Trotman. Accordingly, it cannot be argued at this stage that the error of procedure would have made no difference to the result, and Mr Murray very properly did not seek to suggest this.

Conclusion on the substantive challenge

35. For these reasons I conclude that the adjudication hearing was fatally flawed by the error in receiving evidence in the absence of the Claimant, without giving him the opportunity to question the witness or to adduce further evidence on the point himself.
36. I further conclude that the first review decision was fatally flawed in that it failed to address the complaint made at all. The supplementary decision was equally flawed in suggesting, incorrectly, that the Claimant had the opportunity to dispute the evidence of the nurse or to request another medical witness.
37. For completeness I should refer briefly to an alternative submission of Mr Stanbury. He submitted that even if the adjudicator could have found the charge proved without the nurse's evidence, by taking a stricter view of reasonableness, a proper investigation of the nurse's opinion might have changed the result because the adjudicator had a discretion to dismiss the charge even if technically proved. When asked to identify the source of such a discretion, he drew my attention to paragraphs 2.7 and 2.40 of the PSI. These, it seems to me, simply reflect the common law power to stop a trial for abuse of process or for delay, if the accused can no longer have a fair trial or it is unfair for him to be tried. They do not confer a broader discretion to dismiss a charge which has been proved, out of sympathy with the accused. Such sympathy, if relevant at all, would affect only the sentence imposed.

Alternative remedy

38. On 31 March 2014 judgment was handed down in R (Gifford) v Governor of HMP Bure & Others [2014] EWHC 911 (Admin). In it Coulson J discusses at length the availability and suitability of an application to the PPO as an alternative remedy to judicial review of prison decisions. In it he refers to my earlier comments in R (Odigie) v Serco & SSJ [2013] EWHC 3795 (Admin).
39. It is not necessary in this judgment to rehearse the issues comprehensively dealt with by Coulson J. He concluded that complaints made by prisoners arising in connection with adjudications "are generally suitable for reference to the PPO" (see paragraph [53]). This case does not fall within any of the exceptions set out in paragraph [54] of Gifford. The reasons for preferring the PPO include its "detailed understanding of the prison service and the way in which it works", and its ability to "deal with the merits of decisions as well as their procedural aspects" (paragraph [46]). Such a course is also in the public interest as it tends to be both quicker and cheaper than judicial review proceedings (paragraphs [45] and [47]).
40. Coulson J concluded in Gifford that in his view the judicial review proceedings should never have been issued. In Odigie I concluded that a complaint to the PPO would have been just as effective and would have had a number of advantages. In these circumstances the launch of these proceedings requires some explanation. At first sight they appear inappropriate, and should never have been issued.
41. Both review decision letters concluded with an invitation to take the matter to the PPO within three months if not satisfied with the outcome of the review. If the period were calculated from the second review decision, it expired in May 2014. A request was made to the PPO to investigate by letter of 2 April 2014. This enclosed the paperwork and stated "We are proceeding to Judicial Review for completeness and to protect Mr Soar's position should you indicate you cannot investigate". The claim form was lodged in this court the following day.
42. By this date the decision had been handed down in Gifford. The PPO was an interested party represented in that case, and should have been aware of the decision and its encouragement to claimants to use the PPO mechanism to deal with complaints and challenges to adjudications. On 11 April 2014 the Claimant's solicitors wrote again to the PPO asking for an urgent answer as to whether they would investigate the complaint, specifically referring to this court's approach in Gifford. I have not been shown any response to that letter, but in a witness statement Mr Kingham, the Claimant's solicitor, says that he telephoned the PPO on 2 May 2014 to be told that they could not locate the letter he had sent. He was told that as the matter had proceeded to Judicial Review the PPO would not investigate.
43. It is not possible for me to assess this bald statement without some further information about who made it and what information he or she was given. In the light of Gifford it might be expected that Mr Kingham would ensure that he was speaking to someone in authority at the PPO, and to follow it up with a letter asking for reconsideration at a high level. It may become relevant to return to this in relation to costs, so I say no more about it at this stage.
44. In both Gifford and Odigie the judicial review claims failed on their merits. In this case, subject to the argument about alternative remedy, the challenge would succeed for the reasons explained above. The question arise, therefore, whether the alternative remedy point is still available after permission has been granted, and secondly whether the failure to pursue the alternative remedy should as a matter of discretion debar the Claimant from obtaining relief.
45. As to the effect of the grant of permission, Mr Stanbury produced at the hearing a short extract from De Smith, paragraph 16-016, which states:

"Questions as to whether a claimant should have used another type of redress process should arise on the application for permission and not at or after the substantive hearing of the judicial review claim. Once the court has heard arguments on the grounds of review, there is little purpose in requiring the parties to resort to some other remedy; indeed, to do so may be contrary to the overriding objective of the CPR. But a failure to pursue other remedies may influence how the court exercises its discretion to award costs."

46. The footnotes refer to two cases in support of the main proposition, R v Chief Constable of Merseyside Police, ex parte Calveley [1986] 1 QB 424 and R v Secretary of State for the Home Department, ex parte Swati [1996] 1 WLR 477 at 485. Neither was provided or referred to by Mr Stanbury. A quick look at the Judicial Review Handbook, 6^th edition, by Michael Fordham QC shows that there are a large number of authorities, not always pointing in the same direction (see paragraphs 36.3.7 and 36.3.8). It may make a difference whether the grant of permission is on paper or at a contested oral hearing (see R (Wilkinson & Others) v Chief Constable of West Yorkshire [2002] EWHC 2353 (Admin)). In some cases it may not be possible at the permission stage to determine the adequacy of the alternative remedy, or whether it would resolve the issue fully and directly (see R (JD Wetherspoon) v Guildford BC [2006] EWHC 815 (Admin), at paragraphs [88] to [90]).
47. In the present case permission was granted on paper on the grounds that there were fundamental points of procedure relating to natural justice which were arguably more suitable for judicial review than for the PPO procedure, and in any event the PPO had no jurisdiction over decisions of the Ministry of Justice. In fact it appears that the second ground is a bad one, and has not been pursued by Mr Stanbury. The first is correct, in that it concerns principles of natural justice, but it is not suggested that the PPO procedure would have been inappropriate or ineffective. The only reason for not giving the PPO complaint precedence is said to be because it declined jurisdiction having been told that judicial review proceedings had been started, albeit only protectively.
48. In the end it seems to me that the issue decides itself on the application of the overriding objective. To refuse relief now, having made the findings I have, would be to force the Claimant to expend more time and money in seeking to revive his complaint to the PPO, or else would leave him without a remedy at all if the PPO were to say that it is too late to do so.
49. Accordingly I will grant the relief sought, of quashing the review decision of the Defendant. Where this leaves the Claimant is a matter to be decided by others. If the review decision were to be re-made, and the Claimant were still dissatisfied with the result, any complaint about that should be pursued with the PPO.
50. As far as the costs of these proceedings are concerned, they may be determined on written submissions, but in view of the issues arising, which I have touched on above, I shall reserve the determination of costs to myself.