Morris, R (on the application of) v Health Service Commissioner

1. MR JUSTICE COLLINS: Mr Coppel, I am persuaded that it is implicit, or was implicit, that there were two strands to this complaint. The obvious major one was: I want the records. But included in that it seems to me implicit in that and you get that from the sentence I have referred to at the end of seven, of the original complaint. But the loss is inexcusable and thus there is, I think it was implicit as I say, or arguably so, that the Ombudsman should have appreciated that she needed to consider how it came about that these records were so much all over the place that it did require so much. And if in those circumstances the hospital's record keeping or system of record keeping is completely hopeless, then that is something that is in the public interest to deal with. And also, of course, it would be known to the claimant that there was not actually anything sinister in this. It was purely human incompetence. But that may not be satisfactory. It means that she is not looking at a case where they are trying to cover something up deliberately. And I can see that peace of mind on that basis could be important. I think that, in those circumstances, wide though the discretion is, if the matter was approached without considering the full scope of what was needed, then that arguably comes within the technical failing to have regard to a material consideration rather than something being perverse. It is not a question of that sort of irrationality. So I am prepared in those circumstances to grant permission but -- you know all about this anyway -- that does not mean that necessarily there will be success. She has a decidedly uphill struggle in the light of, as you know, what the law is in relation to Ombudsmen. At this stage she has incurred no costs, as it were, other than whatever she has to pay for those representing her. But she is at real risk because I cannot say that this is a case which is bound to succeed, far from it. She does have an uphill struggle. She will have to consider whether it really is worth a fighting shot(?) at the end.

2. MR COPPEL: She is, of course, behind me in court.

3. MR JUSTICE COLLINS: I appreciate that, that is really why I was saying these things.

4. MR COPPEL: I will again myself reinforce those points.

5. MR JUSTICE COLLINS: And the arguments put, however unfair they may sound to someone such as her, are strong so far as the law is concerned, as you appreciate. Parliament has given the widest possible discretion to the Ombudsman. It does not mean it is completely unfettered because I think I said in argument the fetters are pretty loose. That is the right way of looking at it. But nonetheless, it seems to me that that is the only basis upon which it would be appropriate to grant permission, namely that it is implicit or was implicit from the outset. If this case does proceed, it may be worth considering, or the court considering, the proper approach to review, ie if judicial review is to be brought, it is when the activity starts. It is not really anything like Birkett.

6. MR COPPEL: No.

7. MR JUSTICE COLLINS: But, as I say, if this case is to proceed, it might be worth at least that being considered.

8. MR COPPEL: Certainly.

9. MR JUSTICE COLLINS: I do not think I need to extend time but if I do, I extend it. I think that is the sensible way of dealing with that issue at this stage.

10. MR MAURICI: My Lord, one other matter and I am grateful to my learned friend, and that is the name of the defendant.

11. MR JUSTICE COLLINS: Yes, I gather that it should leave "Parliamentary" out.

12. MR MAURICI: It should be the Health Service Commissioner, and so if I might amend.

13. MR JUSTICE COLLINS: Yes, of course.

14. MR MAURICI: I am grateful.

15. MR JUSTICE COLLINS: There is no problem there. Yes, Mrs Justice Carr was right.

16. MR MAURICI: We are very grateful.

17. MR COPPEL: Sorry. One final thing. There is the costs order in place.

18. MR JUSTICE COLLINS: That goes.

19. MR COPPEL: That goes. I am grateful.