Morris (2014)
R (Morris) v Health Service Commissioner [2014] EWHC 4364 (Admin)
Parties and outcome
- Claimant
- Irene Morris
- Defendant
- Health Service Commissioner (Parliamentary and Health Service Ombudsman)
- Interested party
- Guy’s and St Thomas’ NHS Foundation Trust
- Outcome
- The Ombudsman won: Morris’s judicial review claim was dismissed.
Citations in this work
Dyer
35. This judicial review challenge raises what I would choose to call a refined Wednesbury issue. I put the matter in those terms because the courts have consistently recognised that the defendant's investigatory powers under section 3 of the Health Service Commissioners Act 1993 are very widely drawn. In R (on the application of Mencap) v Parliamentary and Health Service Ombudsman [2011] EWHC 3351 (Admin), Mitting J referred to “an unfettered discretion”. I interpret that as meaning a very broad discretion, reviewable only on a conventional Wednesbury basis, including demonstrating that the decision maker has plainly asked itself the wrong question or has plainly misinterpreted the complaint. In R (on the application of Jeremiah) v Parliamentary and Health Service Ombudsman [2013] EWHC 1085 (Admin), Collins J said this: “30. The law, as set out by both the Act and its interpretation in previous decisions, is that the hurdle which has to be surmounted by any claimant seeking to persuade a court that an exercise of discretion by the Ombudsman is unlawful is a very high one indeed. The relevant leading decision is R v Parliamentary Commissioner for Administration ex p Dyer [1994] 1 WLR 621 where Simon Brown LJ, as he then was, giving the judgment of the Divisional Court made it clear that the width of the discretion was, as he put it, made ‘strikingly clear’ by the legislature. That is a reference to the provision which is now in section 3(5) that the Commissioner should act in accordance with his own discretion. He said that it would always be difficult to mount an effective challenge on what may be called the conventional ground of Wednesbury unreasonableness. While manifest absurdity perhaps did not have to be shown, it would be almost as difficult to demonstrate that the Commissioner had exercised one or other of his discretions unreasonably in the public law sense … ” I endorse that approach, and in so far as there is any difference of substance or emphasis between Collins J and Mitting J, I prefer the reasoning of Jeremiah .
Mencap
35. This judicial review challenge raises what I would choose to call a refined Wednesbury issue. I put the matter in those terms because the courts have consistently recognised that the defendant's investigatory powers under section 3 of the Health Service Commissioners Act 1993 are very widely drawn. In R (on the application of Mencap) v Parliamentary and Health Service Ombudsman [2011] EWHC 3351 (Admin), Mitting J referred to “an unfettered discretion”. I interpret that as meaning a very broad discretion, reviewable only on a conventional Wednesbury basis, including demonstrating that the decision maker has plainly asked itself the wrong question or has plainly misinterpreted the complaint. In R (on the application of Jeremiah) v Parliamentary and Health Service Ombudsman [2013] EWHC 1085 (Admin), Collins J said this: “30. The law, as set out by both the Act and its interpretation in previous decisions, is that the hurdle which has to be surmounted by any claimant seeking to persuade a court that an exercise of discretion by the Ombudsman is unlawful is a very high one indeed. The relevant leading decision is R v Parliamentary Commissioner for Administration ex p Dyer [1994] 1 WLR 621 where Simon Brown LJ, as he then was, giving the judgment of the Divisional Court made it clear that the width of the discretion was, as he put it, made ‘strikingly clear’ by the legislature. That is a reference to the provision which is now in section 3(5) that the Commissioner should act in accordance with his own discretion. He said that it would always be difficult to mount an effective challenge on what may be called the conventional ground of Wednesbury unreasonableness. While manifest absurdity perhaps did not have to be shown, it would be almost as difficult to demonstrate that the Commissioner had exercised one or other of his discretions unreasonably in the public law sense … ” I endorse that approach, and in so far as there is any difference of substance or emphasis between Collins J and Mitting J, I prefer the reasoning of Jeremiah .
Cited by
- Newman
44. In R (Morris) v The Health Service Commissioner [2014] EWHC 4363 (Admin), Jay J said [paragraph 35]: “… the courts have consistently recognised that the defendant’s invest igatory powers under section 3 of the Health Service Commissioners Act 1993 are very widely drawn. In R (on the application of Mencap) v Parliamentary and Health Service Ombudsman [2011] EWHC 3351 (Admin), Mitting J referred to “an unfettered discretion”. I interpret that as meaning a very broad discretion, reviewable only on a conventional Wednesbury basis, including demonstrating that the decision maker has plainly asked itself the wrong question or has plainly misinterpreted the complaint. In R (on th e application of Jeremiah) v Parliamentary and Health Service Ombudsman [2013] EWHC 1085 (Admin), Collins J said this: “30. The law, as set out by both the Act and its interpretation in previous decisions, is that the hurdle which has to be surmounted by any claimant seeking to persuade a court that an exercise of discretion by the Ombudsman is unlawful is a very high one indeed. The relevant leading decision is R v Parliamentary Commissioner for Administration ex p Dyer [1994] 1 WLR 621 where Simon Brown LJ, as he then was, giving the judgment of the Divisional Court, made it clear that the width of the discretion was, as he put it, made “strikingly clear” by the legislation. That is a reference to the provision which is now in section 3(5) (sic) that th e Commissioner should act in accordance with his own discretion. He said that it would always be difficult to mount an effective challenge on what may be called the conventional grounds of Wednesbury unreasonableness. While manifest absurdity perhaps did not have to be shown, it would be almost as difficult to demonstrate that the Commissioner had exercised one or other of his discretions unreasonably in the public law sense….”
- Morris (2019)
35. In the Claimant’s first judicial review claim ( R (Morris) v The Health Service Commissioner [2014] EWHC 4364 (Admin)), Jay J. in terpreted Mitting J.’s reference to an “unfettered discretion” in the Mencap case as meaning “a very broad discretion, reviewable only on a conventional Wednesbury basis, including demonstrating that the decision maker has plainly asked itself the wrong question or has plainly misinterpreted the complaint” (at [35]). If there was any difference of substance between the approach taken by Mitting J. in the Mencap case and by Collins J. in Jeremiah, Jay J. preferred the reasoning of Jeremiah. I agree with Jay J.’s approach.