R Wildbur v Ministry of Defence

JurisdictionEngland & Wales
JudgeMr Justice Langstaff
Judgment Date03 February 2016
Neutral Citation[2016] EWHC 1636 (Admin)
Docket NumberCO/2090/2015
CourtQueen's Bench Division (Administrative Court)
Date03 February 2016

[2016] EWHC 1636 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Royal Courts of Justice

Strand

London WC2A 2LL

Before:

Mr Justice Langstaff

CO/2090/2015

Between:
The Queen on the Application of Wildbur
Claimant
and
Ministry of Defence
Defendant

Mr Jonathan Dingle (instructed by Parker Bullen) appeared on behalf of the Claimant

Mr James Chegwidden (instructed by Government Legal Department) appeared on behalf of the Defendant

Mr Justice Langstaff
1

If it be necessary to do so, I extend time for the acknowledgement of service and for any reply that came to it.

2

The application for judicial review concerns the decision of an Army Service Complaint Panel of the Ministry of Defence which in a decision of 27 January 2015 upheld, in part, a complaint made on 12 December 2012 by the claimant who was then Captain Wildbur.

The Background

3

Until 12 June 2013 Captain Wildbur was a full-time commissioned officer in the British Army. He was on a short-service commission but had provisionally been accepted for a long-term IRC (a regular commission) in substitution. The IRC is an intermediate step to a full regular commission which attracts a pension. Around two-thirds of those on an IRC convert to an RC. The claimant was highly likely, it was thought, to obtain promotion to a Major and it was asserted on his behalf in his grounds that he had a reasonable prospect thereafter of securing an appointment as Lieutenant Colonel.

4

Under regulations made in 2011, required to adjust the size of the Army, some officers had to be selected for compulsory redundancy. The defendant was required by the Government to ensure that the process of selection was fair, logical and based on clear published criteria. The claimant, as it happened, did not fall within the criteria, but because of errors on the part of the defendant was erroneously thought to do so and was regarded as eligible for — and therefore selected for — redundancy. In short, it was held by the Service Complaint Panel (SCP) some two-and-a-half years after the date of his dismissal from the Service as redundant that he had been wrongfully dismissed from the Armed Services.

5

The power under which the SCP sat was that contained in the Armed Forces Act 2006. Section 334 headed "Redress of Individual Grievances: Service Complaints" sets out some provisions in general terms as to the handling of those complaints and the powers of an SCP. By Section 334 (7), if a complaint is referred to the Defence Council, on whose behalf the SCP in this case sat, the Defence Council (known as the "appropriate person" within the statute) "must decide whether the complaint is well founded". It did so here. By sub-section (8), it was provided, so far as material, as follows:

"(8) If the appropriate person decides that the complaint is well-founded, he must —

(a) decide what redress (if any), within his authority, would be appropriate; and

(b) grant any such redress."

6

The Panel set out its conclusion on the complaint in a decision which ran to nine pages. It was only on the penultimate page that it turned to the question of redress, apart from having directed itself at paragraph 4 (g) as follows:

"4 (g) As redress, Captain Wildbur said that since he had been subject to gross career mismanagement over a number of years, he did not wish to continue in employment in an organisation that had treated him so appallingly. He requested compensation for the loss of future earnings that he would have received had his career not been so mismanaged, including pension benefits he would expect on completion of his IRC and seven years salary to take him to the end of that commission.

…..

10 We considered Captain Wildbur's request for specific redress but we were not bound by the request. In the event of a finding that he was wronged, it was for us to decide on appropriate redress."

7

As it happens, and it may be material, the quote at paragraph 4 (g) came from the complaint which was dated 12 December 2012, that is some six months or so prior to the date that Captain Wildbur left the Army. He was then saying, whilst a serving soldier, that he did not wish to remain in it. At paragraph 19 the tribunal said, in paragraphs which are central to this challenge, as follows:

"19 We direct as follows:

(a) Captain Wildbur has asked for compensation and indicated that he does not wish to continue serving in the Army. Nevertheless, we consider it appropriate to offer him the opportunity to serve on the basis that he should not have been selected for redundancy for the reasons we have set out above. Subject to what is said at (b) below, Captain Wildbur is to be told that his retirement will be annulled and he will be allowed to continue serving in the Army on terms appropriate to an officer with an IRC;

(b) Captain Wildbur is to be directed to our decision concerning his continuing service. If he does not now wish to continue serving, his retirement on redundancy is to remain in place;

(c) in addition, Captain Wildbur is to be paid a sum equal to the salary he would have received if he was not made redundant from his last pay day of service to the date this decision is notified to him. This sum is payable subject to the following deductions:

(i) income tax and national insurance contributions that would have been payable by him if he had received the sum as Army pay,

(ii) the sum equal to the sums he received as a SCP [that means in this case a Special Capital Payment] and re-settlement grant on account of his being made redundant, and

(iii) a sum equal to any pay he received for other employment during the period set out above."

8

At paragraph 20 the Panel added:

"20 In addition, we apologise to Captain Wildbur for the wrong in this case and we apologise for the delay in resolving his complaint which raised serious and complex issues."

9

Neither counsel has referred to paragraph 20 as being part of redress, but in my view it was intended to be so, came under the section in relation to it, and plainly indicates some of the considerations of a non-financial sort which can fall within the head "Redress". For many, an apology is of significant importance.

The Challenge

10

In summing up the submissions he made orally on behalf of Captain Wildbur, Mr Dingle submitted that the decision which the Panel had reached as to redress was not rational. No rational panel could have conducted itself, having made a finding that the Captain had been dismissed in breach of the law and regulations, and found that financial redress was that which it was appropriate to offer whilst failing to analyse the subjective circumstances into which the Army had put Captain Wildbur. It had not gathered any evidence of his position, it had not considered the relevant circumstances and there was no subjective analysis of his predicament (the first word that came into Mr Dingle's mind — "situation" is perhaps the word he was searching for) such as to satisfy the test under Section 334(8) which it is common ground was the applicable test.

11

I shall deal with the further submissions of both parties in the course of this judgment at a later stage.

12

Where there is an attack on the decision-making of a body of non-lawyers occupying a public function as here, two matters must be stated at the outset. First, the challenge must be determined in the light of the information that the decision-making body had before it. Second, in his case the words of the decision are to be read as those of Army men speaking to an Army man.

13

My task is to determine if the decision which the Panel reached is unlawful. It would be so in these circumstances: if the Panel had misconstrued the statute so as to misapply it; or, if properly construing and applying the statute, it had reached a decision which was Wednesbury unreasonable which, for these purposes, I take as meaning that it took into account a factor which it should not have taken into account or failed to take into account one which it was obliged to; or reached a decision which no reasonable Panel in its position could have reached: in other words, a perverse decision, one which, as it has been described in other cases, flies in the face of reality.

14

The fact that a differently composed body may quite reasonably have reached a different result is irrelevant to the question whether this Panel erred in this decision: it is of the nature of decisions involving the exercise of judgment that they may very well be made differently by different panels, and most decision-making bodies have a wide range within which a proper decision may be reached even though views may be strongly held on both sides.

15

The point here is illustrated by the facts of a case to which I was taken which was added to the bundle this morning, that of Crompton v United Kingdom, Application 42509/05, before the European Court of Human Rights. The point in issue was not that here. Indeed, there is no direct precedent dealing with this particular statute or these particular circumstances. But in the course of the recitation of the facts it emerged that there was a decision made by the Army Board, under what was a previous statute covering service complaints, relating to the redundancy of the applicant from the Army which had been made incorrectly some six years prior to the case being heard. He had claimed redress. He was offered compensation for the loss of earnings which he had suffered made up of his loss of salary, a loss of pension rights and a redundancy payment. Not unnaturally, Mr Dingle points to this as a paradigm exercise of the discretion under that particular statute and argues...

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2 cases
  • Flight Sergeant (Ret'd) Barbara Eyton-Hughes v The Secretary of State for Defence
    • United Kingdom
    • King's Bench Division (Administrative Court)
    • 31 July 2024
    ...and may state in the decision or determination their response to those comments.” 44 So, as Langstaff J said in R(Wildbur) v MOD [2016] EWHC 1636 (Admin) at [19] of the predecessor scheme in the AFA, the scheme fleshed out under the SC Regs has many of the hallmarks of an internal grievanc......
  • Ian Craig Malone v Ministry of Defence
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    • Queen's Bench Division
    • 8 November 2021
    ...procedure: see for example the decision of Mr Justice Langstaff in The Queen on the application of Wildbur v Ministry of Defence [2016] EWHC 1636 (Admin) and the decision of the European Court of Human Rights in Crompton v United Kingdom [2010] 50 EHRR 36. Mr Johnston submits that, given th......

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