Mark Moss, R (on the application of) v The Service Complaints Ombudsman of the Armed Forces (No.3)
[2023] EWHC 3311 (Admin)
Mark Moss, R (on the application of) v The Service Complaints Ombudsman of the Armed Forces (No 3) (Remedy)
22 March 2024
[2024] EWHC 669 (Admin)
High Court
Mr. Moss sued the Armed Forces complaints Ombudsman. A judge already threw out some of the Ombudsman's decision. Now, the judge says the Ombudsman has to look at it again, but with a different person doing the investigating to make sure it's fair.
Key Facts
- •Mr. Moss brought a judicial review claim against the Service Complaints Ombudsman of the Armed Forces (SCOAF).
- •The claim concerned the Ombudsman's decision in an Investigation Report (IR3) relating to Mr. Moss's service complaints (SC1, SC2, and SC3).
- •The High Court previously quashed parts of IR3 in [2023] EWHC 3311 (Admin).
- •This judgment addresses the appropriate remedy following the previous quashing order.
- •The court quashed the Ombudsman's s.340H(1)(a) “substance” decision dated 18.3.22.
- •The court ordered the matter to be remitted to the Ombudsman with directions to reconsider using a new investigator.
Legal Principles
Section 31(5)(a) of the Senior Courts Act 1981 (SCA 1981) allows the High Court to remit a matter to the original decision-maker with a direction to reconsider in accordance with the court's findings.
Senior Courts Act 1981
The court has discretion in determining the appropriate remedy in judicial review, including directing the use of a new investigator to ensure fairness and avoid the perception of bias.
HCA International Ltd v CMA [2015] EWCA Civ 492
A quashing order should be designed to give effect to the court's judgment and clarify what must be done to provide a determination in accordance with the court's opinion.
R (Perrett) v Communities and Local Government Secretary [2009] EWCA Civ 1365
The court can quash specific parts of a decision and state expressly that other issues need not be reconsidered.
R (Essex County Council) v Education Secretary [2012] EWHC 1460 (Admin)
The court can grant a declaration specifying matters on which the decision-maker may not rely in future consideration.
R (Balakoohi) v Home Secretary [2012] EWHC 1439 (Admin)
Outcomes
The Ombudsman's s.340H(1)(a) "substance" decision was quashed.
The decision lacked a reasonable basis due to the absence of an assisting officer, failure to advise Mr. Moss, reliance on post-meeting communications, and concerns about Mr. Moss dropping his complaints after being told there was nothing to be gained.
The matter was remitted to the Ombudsman with a direction to reconsider using a new investigator.
To ensure fairness and avoid the perception of bias given the previous judicial reviews and the significant role of the investigator in preparing the reasoned assessment. The court found that using the same investigator would present an unfairness to Mr. Moss.
The Ombudsman's s.340H(1)(b) "maladministration" decision remained undisturbed.
This was not the subject of the judicial review.
The Ombudsman was ordered to pay Mr. Moss's costs.
Agreed between the parties.
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