POL00022611
POL00022611
Post Office Complaints and Mediation Scheme
24 November 2014
1. We are assuming that POL is reviewable (i.e. exercises sufficient public law
functions to make it susceptible to JR).
2. Not all its decisions are reviewable - private law decisions will not be
reviewable.
3. Matter of fact and degree. Different courts reach different conclusions.
Following pr
3.1. Aga Khan [1993] 1 WLR 909 - where powers derive from agreement of the
parties and give rise to private rights, then not a public law decision.
3.2. PIA [2001] EWHC Admin 247 at [12] PLA Ombudsman not reviewable
because legal authority arises from consensual submission to the
jurisdiction
3.3. Insurance Ombudsman [1994] CLC 88 - Insurance Ombudsman was not
reviewable
3.4. Swann v AG Turks & Caicos[2009] UKPC 22 at [14] - claim for unpaid
remuneration was a “classic private law claim based on breach of
contract”
4, So here, what is the nature of the scheme and what role does public law have to
play?
or
POL00022611
POL00022611
First, underlying claims are private law claims for breach of contract. A
decision to bring proceedings against a sub-postmaster would not be
susceptible to JR. Ditto the decision to defend proceedings brought by a sub-
postmaster.
Second, a decision by POL to mediate a claim brought by or against a
subpostmaster would not be susceptible to JR.
Third, was then the decision to set up the Scheme a decision that is susceptible
to JR?
7A.
7.2.
7.3.
7A.
The scheme is an attempt to provide a framework for the resolution of
private law disputes, without the need for litigation.
(1) It was to give “an opportunity to raise their concerns directly with Post
Office. In partnership with Subpostmasters, the JFSA, Second Sight and
interested MPs, all sides can then work towards resolving those
concerns”
Why should a scheme to oversee this process make it susceptible to JR?
The scheme is not about Horizon - it is about the individual cases
submitted by the applicants - and providing a framework for those cases
to be resolved.
A scheme for individual applications who will voluntarily submit to the
jurisdiction of the Scheme (but can withdraw at any moment).
Fourth, would any decision under the Scheme be reviewable?
8.1.
It is only “final” as to the inapplicability of mediation.
10.
8.2.
8.3.
8.4.
8.5.
POL00022611
POL00022611
But it cannot be binding as to a mediation in fact taking place. It is merely
a finding that mediation is appropriate.
Applicant could decide not to participate - although it does not say that
POL would participate, given that mediation is a consensual process
would be odd to compel mediation
That said, there is an offer for costs to be covered.
But it looks like a voluntary submission to a non-binding dispute
resolution process by the Applicant - without any clear obligation on the
part of POL. Looks like the Ombudsman or the Jockey Club.
Fifth, would any decision to withdraw the Scheme be reviewable?
9.1.
9.2.
9.3.
94,
9.5.
Decision to set it up not reviewable.
Why should a decision to withdraw from the Scheme be reviewable?
Will they say that it is? Probably
How to protect yourselves? Consult.
(1) They will say a legit expectation that the Scheme will be used. We
will say that it is has broken down and is not working. Material
change of circumstances
(2) They will say irrational to withdraw. We will say that it is has
broken down and is not working.
You have not said that you will not start proceedings. You could do so.
Sixth, is POL required to accept the view of SS?
11.
10.1. No.
POL00022611
POL00022611
They were required to give a recommendation and to act
independently.
Seventh, JFSA’s letter dated 10 November is almost incomprehensible
So to your questions
12.1. (a) decisions taken in relation to the Scheme are private in nature
12.2. (b) Not reviewable
12.3. (c) there is a risk - likelihood of JR is low - and in any event protect
yourselves by consulting.
124. (d) timings
(1)
(2)
(B)
(4)
6)
Promptly and in any event within 3 months of a decision
AoS within 21 days of service of the CF
Then decision on permission - paper and then oral renewal.
If permission, 35 days later for our detailed grounds/evidence
Then a hearing.
12.5. (d) prospects of success - much will depend on the reasoning process and
the consultation exercise.
12.6. (d) remedy - keep the scheme going? Shows the ludicrous nature of the
claim.