IvN 0012_ 102

FINAL REPORT OF THE SELECT COMMITTEE ON COMPLAINTS OF MALADMINISTRATION MADE BY MRS A E S J PILLING

To: The Hon Noel Q Cringle, President of Tynwald, and the Hon Council and Keys in Tynwald assembled

FINAL REPORT OF THE SELECT COMMITTEE ON COMPLAINTS OF MALADMINISTRATION MADE BY MRS AE S J PILLING

I INTRODUCTION

Terms of Reference of the Committee

1. At its October 2000 sitting, Tynwald Court resolved:

"That, following the presentation of a petition for redress presented by Anne Elizabeth Saria Jill Pilling at Tynwald assembled at St John's on 5th July 2000, a Select Committee of three Members be appointed to consider:-

(i) the circumstances surrounding the failure to make an audio recording of the High Court action between Mrs Pilling and the Department of Local Government and the Environment before Acting Deemster Michael Shorrock QC on 16th July 1998; and

(ii) the application of the standardised procedure for complaints against Departments of the Isle of Man Government and Statutory Boards in respect of complaints allegedly made by Mrs Pilling between 1991 and 1993, and her complaint of the failure to record the 1998 court action;

and to report."

C /CMPil / mck Membership of the Committee

2.01 At the same sitting Mr L I Singer, Sir Miles Walker and Mr J N Radcliffe were appointed to serve on the Select Committee. At the sitting of the Court on 17th January 2002, Mrs H Hannan was elected to serve on your Committee in place of Sir Miles Walker who had retired at the General Election in November 2001.

2.02 Mr J N Radcliffe sadly died on 5th September 2002 in the closing stages of our investigation but before this Report was finalised.

Chairman of the Committee

3. At the first meeting of the Committee, held on 31' October 2000, the Hon Member for Ramsey, Mr Singer, was elected Chairman.

Interim Report of the Committee

4. At the sitting of the Court on 12th July 2001, your Committee's Interim Report on the first part of its remit was made, and it was resolved that the Report be received and its recommendations noted. The second part of the Committee's remit is now considered, namely:-

the application of the standardised procedure for complaints against Departments of the Isle of Man Government and Statutory Boards in respect of complaints allegedly made by Mrs Pilling between 1991 and 1993, and her complaint of the failure to record the 1998 court action.

2 C/CMPi1/mck Evidence received with respect to the second part of the inquiry

5.01 Your Committee received and examined a substantial amount of written evidence in addition to that referred to in their Interim Report, and in addition to the oral evidence appended to it. A detailed list is at Appendix 1. We regret to record that answers to a number of our enquiries to DLGE were not forthcoming and we were obliged to send for and examine all the Department's files occupying two large boxes. In view of both the quantity and nature of this evidence in particular, the various papers and files are being retained in the Clerk of Tynwald's room, where they may be consulted by Members of Tynwald, or members of the public, by prior arrangement.

5.02 In this second phase of the investigation, your Committee proceeded on the basis of written rather than oral evidence because of the nature of the inquiry - that is, whether the Standardised Complaints Procedure was respected and how representations which should be treated as complaints were dealt with - which is essentially a matter of record. All the officials whose conduct is the subject of comment below were shown the passages of the draft Report relating to them and invited to confirm the accuracy of what is said; all of them, with the exception of Mr Barry Vannan, have replied to this invitation: their replies have been taken into account and the letters containing them are included in the publicly available evidence. Mrs Pilling, for her part, supplied us with full, detailed and helpfully organised documentation and replied to further enquiries in writing.

5.03 We regret that it was not possible, of course, to put to Mr Michael Savage, the former Chief Executive of DLGE, the passages where his actions are criticised; the investigation would, however, have been incomplete without these passages.

3 C/CMPi1/mck II THE ISSUES TO BE CONSIDERED

The origin and terms of the standardised complaints procedure

6.01 For convenience, we will refer to the standardised complaints procedure as the "SCP".

6.02 The origin of the SCP was the Report of the Select. Committee of Tynwald in 1989 on the Appointment of an Ombudsman.' That Report concluded that there was insufficient evidence to determine whether it was necessary to establish an independent authority to consider complaints of maladministration and to assess administrative procedures operating on the Island. The Report recommended as an "interim" measure that a standardised complaints procedure should be introduced within the Isle of NI an Government for responding to complaints from the general public, accompanied by an annual report to Tynwald by the Chief Secretary on its operation.

6.03 The SCP that followed is reproduced at Appendix 2 to this Report. It was introduced in 1990 and became fully operational on 1st January 1991. It will be seen that its main features are:-

(i) the five principles of accessibility, simplicity, speed, independence and confidentiality on which the SCP is based;

(ii) flexibility in the implementation of the SCP in Departments

(iii) a common description of what is to be regarded as a complaint.

I Approved by Tynwald Court on 22 November 1989.

4 C/CMPil/mck 6.04 The following detailed features of the SCP may be noted:-

(a) In relation to the identification of a "complaint", paragraph 1 of Appendix 1 to the SCP states that It is important to avoid too close a definition. Any problem or concern should be regarded as a potential complaint.

(b) Paragraph 1(8) of Appendix 1 to the SCP provides that A complaint solely against a decision which is the subject of an independent appeal mechanism or where the mechanisms available for further review and appeal have not been exhausted does not warrant recording and, by implication, is not within the full system of the SCP itself; but paragraph 6 goes on to state that Where, in any particular case, there is doubt about whether the complaint should be recorded, it should be recorded.

(c) The position of Members of Tynwald with regard to complaints is addressed at paragraph 8(vi) of the SCP, which provides:-

A Member of Tynwald will always be deemed to have sufficient interest in any complaint that is brought to his attention. Where a complaint is lodged on behalf of a complainant by a Member of Tynwald, the standard procedure should be applied subject to the following additions:-

(a) the Member concerned should be advised of developments in addition to the complaint;

(b the Chief Officer and the Minister should be advised of any complaint lodged by a Member and should be advised of developments.

(d) The purpose of the SCP is to make provision for complaints against officials. This is clear from: (i) the fact that the complaints in question are to be about maladministration which, by definition, relates to official

5 C/CMPil/mck rather than political action; (ii) responsibility for the operation of the SCP is entrusted to the Chief Officer of each Department or Board - paragraph 5 of the SCP; (iii) training to deal with complaints is for staff - paragraph 9 of the SCP.

The questions to be answered

7.01 Your Committee have approached their task with these provisions in mind and have, accordingly, examined the evidence before them to identify -

• first, any and every occasion on which Mrs Pilling can fairly be taken to have expressed herself in terms which should have been recognised as a complaint;

• secondly, what action was taken on such occasions; and

• thirdly, whether - and if so what - loss or damage Mrs Pilling can be said to have suffered as a result of any failure to give effect to the requirements of the SCP.

7.02 In addition, we refer briefly to a further matter raised with us by Mrs Pilling, namely a complaint about the appointment of a member of the judiciary, which was outside our remit.

6 C/CMPi1/mck III DEPARTMENT OF LOCAL. GOVERNMENT AND THE ENVIRONMENT 1991-1993

Introduction

8.01 The object of Mrs Pilling's grievance so far as the Department for Local Government and the Environment ("DLGE") is concerned is the role discharged by Mr Brian Sinden, who was DLGE's Development Control Officer for Douglas and South of Island. The complaint is that Mr Sinden dealt on a number of occasions with planning applications and planning business generally, which immediately concerned Mrs Pilling because he was (a) a local resident liable to be affected and (b) his late wife was, at certain stages, a member of the Board of Commissioners for the parish of Arbory,2 which was the relevant local authority. In reviewing the detailed evidence of Mrs Pilling's dealings with DLGE, therefore, we have focussed on Mr Sinden's involvement with Mrs Pilling's planning affairs.

8.02 Between 1988 and 1993, Mrs Pilling made four planning applications in respect of land that she owned at Colby, in the parish of Arbory, behind an existing residential development known as Cronk-y-Thatcher. Mrs Pilling's land was some 10.25 acres in size and she wished to develop it for residential use. The four applications were referenced as: 1988/694; 1990/4169; 1992/0013; 1993/0063.

The 1988 application - 1988/694

9.01 In 1988, Mr Sinden was approached for his advice on what was to become the 1988 application, and he recommended that the area covered by it should be reduced; according to Mrs Pilling, Mr Sinden also recommended that application 1988/694 was then submitted on that basis but was refused

2 The late Mrs Sinden was elected to the Board in May 1992 and served until the end of April 1998.

7 C/CMPil/mck 21' September 1988 on the grounds that it would involve an undesirable extension of urbanisation in a rural area, that it would be contrary to the Development Plan and that there was insufficient capacity in the local sewage system. On review, the application was on 23rd November 1988 again refused, Mr Sinden having appeared for the Department.

9.02 On appeal, the Inspector also recommended refusal, but on the ground only that sewage system was inadequate and that a new sewage treatment plant would have been needed: the Inspector who conducted the review said "It seems to me that the objections raised to the general principle [of an individual sewage treatment plant] by, in particular, the Department of Local Government and the Environment, have considerable weight.".

9.03 Up to that point, Mrs Pilling had made no complaint about Mr Sinden and the Committee therefore make no criticism of the Department with regard to the SCP in respect of the 1988 application.

The 1990 application - 1990/4169

10.01 Following the holding of a Public Inquiry in October 1990 into the Island Strategic Plan Southern Sector, Mrs Pilling was advised by a planning officer of DLGE to lodge a fresh application: it was evidently made in 1990, but the original DLGE file was lost, because there is a duplicate file for the application and it contains a minute to staff dated 28th October 1993 asking them to search for the original file "which has been missing for some time".

10.02 It appears from the duplicate file that Mrs Pilling was encouraged to resubmit the application on le March 1991, but it continued to bear the same serial number. Mr Sinden was the official who dealt with the application. Mrs Pilling has stated to us that "From previous experience, I was filinly of the opinion that Mr Sinden, perhaps because he himself was a resident of Colby, did not want my land in Colby to be developed.".

8 C/CMPi1/mck 10.03 Mrs Pilling wrote to Mr Sinden on 18th March 1991 apologising for confusion over certain details; her letter contained no hint of complaint. The same is true of a further letter which Mrs Pilling wrote on 26th April 1991 reminding Mr Sinden of various salient facts relevant to the application.

10.04 The 1990 application was in its turn refused on 15th May 1991. The grounds were that it was premature in the context of the then draft Sector Plan for the South of the Island and that there were inadequate plans for sewage disposal.

10.05 Mrs Pilling and her husband then had a meeting on 15th May with the late Mr Michael Savage, the Chief Executive of DLGE. Mrs Pilling states that:-

"We complained to Mr Savage that it seemed to us that Mr Sinden was abusing his position as planning officer to make personal recommendations. ... We complained to Mr Savage that it was totally wrong that Mr Sinden, a local resident, should process my planning applications and make recommendations to the Planning Committee. ... It seemed to me that Mr Savage went on the defensive regarding the complaints made against Mr Sinden. Having argued the matter of Mr Sinden's involvement in my planning . applications, Mr Savage stated that it was not for us to question as to which officer presented an application. He certainly did not draw my attention to the Department's complaint procedure. Mr Savage did, however, tell me that he would arrange for a meeting to be held with Mr [B] Vannan and I was left with the impression that Mr Vannan would now be the officer dealing with my planning applications."

10.06 Although an affidavit by the late Mr Savage in later litigation - see 11.02 below - denies that any complaint about Mr Sinden was made, Mrs Pilling's subsequent letter to Mr Savage on 17th May is consistent with her statement; it does not refer to complaints about Mr Sinden but, since Mrs Pilling thought that her complaint had been taken on board, there was no need for it to do so. Mr Savage replied to Mrs Pilling on 21st May confirming that Mr Vannan would meet her architects to discuss the matter further.

9 C/CMPi1/mck 10.07 The immediate sequel to this meeting was that a further meeting was held on 11th June between Mrs Pilling and her advisers 'with Mr Malcolm Watson, Architect and Planning Officer (Mr Vannan being unavailable), which was to Mrs Pilling's satisfaction. Various developments followed which are not material to this Report, and a further planning application was lodged in April 1992.

10.08 Your Committee infer that the late Mr Savage dealt with Mrs Pilling's unease about Mr Sinden at the meeting on 15th May 1991 to Mrs Pilling's satisfaction: the case therefore falls within Appendix 1, paragraph 1(5), of the SCP as being one "successfully dealt with on the spot", and it did not require Mrs Piling to be informed specifically about the SCP. In the result, your Committee therefore make no criticism of the Department in respect of the 1990 application on the basis of the SCP, but we do criticise the failure of the Department to keep a record of the meeting or of the reason for it for future administrative reference.

The 1992 application - 1992/0013

11.01 The third planning application with which we are concerned was submitted on 2nd April 1992. The application was handled by Mr Sinden.

11.02 At this point, we must note that Mr Sinden's involvement at this stage was the subject of later legal action in Pilling v Department of Local Government and the Environment & Anor (CLA/1993/199)3; the judgment of Deemster Corrin is at Appendix 3. The action sought, among other things, to establish that DLGE and Mr Sinden were guilty of the torts of misfeasance in a public office, breach of statutory duty and of negligence.

11.03 it will be seen from page 21 of the transcript that these claims were not successful; and at page 20, the Court concludes in relation to Mr Sinden that "there is not a hint of dishonesty". We will refer again to this judgment and to the decision of Acting Deemster Shorrock in a subsequent action; but it

10 C/CMPi1/mck must be understood that your Committee's task has not been to revisit in any sense what has already been decided by the law Courts, but only to examine the operation of the SCP.

11.04 That Mr Sinden became involved in the 1992 application is clear. He made detailed notes about it and provided a brief for the planning committee, recommending its refusal. The notes are available in DLGE's files, they were disclosed to Mrs Pilling and they were available to the Court. Surprisingly, given the meeting less than a year before on 15th May 1991 at which Mrs Piling had successfully complained about Mr Sinden's involvement, there is nothing in DLGE's files to suggest that any thought was given to that question by Mr Sinden's superiors; Mr Sinden himself has told us that he was unaware of any complaint at this time - though he became aware of Mrs Pilling's unease: see 11.06, 12.08 below. Among the objections received to the application was one from Arbory Commissioners dated 16th April, which was shortly before the late Mrs J M Sinden's election in May of that year.

11.05 The application was considered by the planning committee on 8th May and a notice of refusal issued on 21' May: the reasons given for the refusal were that the application would "prejudice any Planning Study of the broader area" and that the detailed layout was unsatisfactory in certain respects. On 18th May, Mr and Mrs Pilling had a meeting with Mr David Killip of DLGE, who was at that time Secretary of the Planning Committee. Mr Killip supplied them with a copy of Mr Sinden's recommendations, which showed that the grounds for refusal had followed the latter's advice to the planning committee.

11.06 Mrs Pilling's evidence is that Mr Sinden had been invited to attend the meeting and she complained to Mr Killip, in Mr Sinden's presence, that the latter's report to the Planning Committee had been "wrong, biased and contrary to the advice given to me by his Department within letters, documents and meetings". Mr Killip, in written evidence to us, has stated of

3 The decision in this action was the subject of appeal in Pilling v. Department of Local Government and the

11. C/CMPil/mck this meeting that "Mrs Pilling's complaint was made informally and verbally" and has sought to excuse himself for not taking action on it by saying that it should have been made in writing. Mr Killip added: "Had the complaint been submitted correctly, it is clear from the requirements of the Standard Complaints Procedure that it would have been referred to Mr Sinden's line manager. That was not me."

11.07 We have been unable to find any record of this meeting in DLGE's files, still less any record of Mrs Pilling's complaint. It is to be noted that the complaint about Mr Sinden's Report had three elements: (i) it was "wrong"; (ii) it was "biased"; and (iii) it was at odds with advice previously given by the Department. Of these three, (ii) and (iii) are matters which fall within the notion of a complaint as set out in the SCP, Appendix 1, paragraph 1(C1); only complaint (i) might fairly be regarded as being within paragraph 1(8), since it would be the subject of the review hearing.

11.08 But (ii) and (iii) - bias and inconsistency - are administrative faults which are not, as such, within the scope of a planning appeal and should therefore have been seen as complaints to be investigated. The SCP, paragraphs 6, 7(i) and 8(i), makes it clear that it is the duty of officials both to recognise a complaint when it is being made and to see to it that the person making it is aware of, and able to use, the procedures laid down. We therefore conclude that Mr KiRip failed to implement the SCP in relation to Mrs Pilling's complaints at the meeting on 18th May 1992; the same must be said of Mr Sinden, who was present at the meeting, and who we are satisfied must have been aware that Mrs Pilling's objections included the fact that he was dealing with the matter himself.

11.09 A further meeting took place on 11th June between Mr and Mrs Pilling, their architect arid the late Mr Savage, the Chief Executive. Mrs Pilling's evidence is that she again complained about Mr Sinden's involvement, and added that The late Mrs Sinden was one of the commissioners of Arbory Parish; nothing was said about the SCP. Again, we can find no record of this meeting in

Environment reported at 1996-98 MLR 293.

12 C/CMPil/mck DLGE's files, but at the review of the planning refusal held on 29th July, Mr Vannan represented the planning department instead of Mr Sinden, so it is to be inferred that, as before, Mr Savage took the complaint on board and dealt with it on the spot.' In respect of the complaint made on 11th June 1.992 therefore we conclude that the requirements of the SCP were at that time met.

11.10 The review was held on 29th July and on 6th August a notice of refusal was issued, repeating the first ground of the original refusal but omitting the second. Mrs Pilling then sought an appeal to the Minister, prior to which an independent Inspector would report on the case. For that purpose, a submission on behalf of the planning committee was prepared within DLGE, signed by Mr J M Watson but actually prepared by Mr Sinden. The manuscript submission in the file is unsigned, but it is in the same hand as Mr Sinden's earlier work and he has accepted that it was his work. This manuscript was then typed up unchanged into the formal submission signed by Mr Watson on 5th October, which concludes:

"This statement has been prepared by J Malcolm Watson, BA (Hans Arch), DipTP (Mans), ARIBA, MRTPI, Architect and Planning Officer, on behalf of the Planning Committee of the Department of Local Government and the Environment."

11.11 Whatever the convention may be with regard to a senior officer taking responsibility for work prepared by a junior officer, your Committee regard this statement, in the circumstances of this particular case, as misleading at best. We were told by Mr Watson and Mr Sinden that this format was used routinely where drafts were prepared for Mr Watson; but, in that event, they should not have been described as having been "prepared" by Mr Watson. Mr Watson himself told us: "I think everybody was aware of Mrs Pilling's disgruntlement regarding the outcome of her application and her obsession with Brian Sinden and the supposed influence of the late Mrs Sinden.". In this case, this false statement led to real damage. The late Mr Savage had on

4 In his affidavit in the litigation, Mr Savage however denied that any complaint was made or that Mr Sinden was alleged to be biased.

13 C/CMPil/rnck two occasions been made well aware of Mrs Pilling's complaints about Mr Sinden's involvement and had indeed acted on them, yet he permitted a very important submission to an independent Inspector - who would have no knowledge of Mr Sinden's questionable role - to be prepared by Mr Sinden and adopted without modification as another officer's work. As such, it was presented as having all the credibility of an independent and unconnected appeal body.

11.12 Although the expression "complaint" is used with a different connotation there, your Committee concur with the substance of the comments made by His Honour Deemster Corrin in the judgment to which we have referred already. At pages 16 and 17 of the transcript, when referring to Mrs Pilling's complaints about Mr Sinden's position, the judge says:-

"Mrs Pilling's concerns were completely ignored. Mr Fargher [who later became Chief Executive] said that there was no written complaint against Mr Sinden and Mr Sinden himself said that no complaint had been lodged. That, with respect, is not the point. Mrs Pilling was quite properly asking that Mr Sinden be taken off her Planning Applications - it was not a matter of complaint but rather common sense and common justice. I think it is a matter of much regret that Mr Savage, as Chief Executive, failed to understand Mrs Pilling's concerns which in my view were completely justified. Had Mr Savage stepped in and appointed another officer then these proceedings would not have arisen."

11.13 We therefore conclude that in permitting Mr Sinden to play the role he did in connection with the submission made on behalf of the Planning Committee on 5th October 1992, the late Mr Savage failed to give effect to the requirements of the SCP in that he was aware of the complaint, had accepted the force of it already, but took insufficient steps to remedy it.

14 C/CMPil/mck 11.14 On 14th October, Mrs Pilling wrote to the late Mr Savage about the submission - which she did not yet know had been prepared by Mr Sinden - complaining of "several serious errors and omissions which are prejudicial to my case and could well have a bearing on the decision of the independent Inspector". Mr Savage promised, in reply, to bring these comments to the attention of the Inspector. Mrs Pilling returned to the charge on 21st October, insisting that the submission be corrected, since it would otherwise appear that the Planning Committee regarded it as correct.

11.15 The late Mr Savage answered on 23rd October that he would "ask the Planning Committee if they wish to make any amendments to the Statement of Case provided to the Inspector". Mr Savage's implementation of this promise was to send a minute dated 23rd October to Mr Sinden saying simply: "Please find attached, for information, a copy of recent correspondence with Mrs Pilling regarding their (sic) forthcoming planning appeal."

11.16 Mr Sinden's notes in response to the detail of Mrs Pilling's complaints are in the file, and he has told us that he believes that they were addressed to Mr Malcolm Watson and forwarded to the Inspector, but there is no evidence that the Planning Committee were consulted as the late Mr Savage had undertaken they would be. The matter, however, seems to have been simply dismissed,' and the Inspector hearing the appeal proceeded to sit on 5' November. The Inspector's decision (undated in the file) concluded:-

"I recommend that the appeal be dismissed and the decision of the Planning Committee be confirmed."

11.17 The complaint by Mrs Pilling in her letters of 14th and 21st October about the submission to the Inspector was not, in terms, a complaint about Mr Sinden's involvement (partly because she was unaware of it). The complaint appeared to concern matters which were the subject of an independent appeal

5 The relevant minutes of the Planning Committee make no reference to Mrs Pilling's concerns being reported to them.

15 C/CMPil/mck mechanism, but in substance the complaint was that the impression was being given to the Inspector that the facts were as stated and that the Planning Committee's authority lay behind that statement.

11.18 In reality, it was only Mr Sinden's perception of the facts that lay behind it. While it is true, as Deemster Corrin pointed out at page 13 of his judgment, that Mrs Pilling had the opportunity before the Inspector to counter what she saw as the submission's errors,6 it is also true that that perception, coming from an official who the late Mr Savage knew was seen to have a conflict of interest, was allowed to go forward to the Inspector as an authoritative official statement, untainted by any suspicion of bias. There is, finally, nothing to suggest that the Inspector was addressed on any of the issues dealt with by Mr Sinden responding to Mrs Pilling's objections.

11.19 Overall, there was an administrative failing which was not subject to the Inspector's appeal jurisdiction, not least because he was ignorant of it. It had the potentially damaging consequence that the Inspector was faced with an apparently neutral official submission on the one hand and a necessarily partisan presentation from Mrs Pilling on the other - she had a case to argue, and a financial interest in arguing it; the Planning Committee, by contrast, was supposed to be representing the public interest. We therefore conclude that in not taking any useful action on Mrs Pilling's complaints of 14th and 21st October, the late Mr Savage again failed to implement the SCP in relation to them; indeed, Mr Savage's action positively aggravated the fault of which Mrs Pilling was complaining.

11.20 The Inspector's recommendation arrived in the Department on 7th December 1992. Mr Maurice Fargher, then deputy to Chief Executive of DLGE the late Mr Michael Savage, handed it personally to the Minister. The Minister, The Hon J A Brown, now Speaker of the House of Keys, gave evidence about what happened next in Pilling v Department of Local Government and the Environment, which is recorded in the judgement (at page 14) as follows:

Mrs Pilling's letter of 14th October was, according to Mr Sinden's later affidavit, sent on to the Inspector.

16 C/CMPiI/mck "The Minister said that he would normally take the reports home and read them. Then later within about ten days he would meet the Chief Executive or his deputy who would have the planning files available. He would also examine the plans and files and make his final decision. This is exactly what he did in Mrs Pilling's case. In fact Mr Brown concurred with the Inspector's Report in the other cases before him that day, but did not accept the Report in Mrs Pilling's case. He decided to change the Inspector's decision by granting planning permission on the lower part of Mrs Pilling's land (about 2.5 acres).

"Mr Brown, in his evidence, was adamant that only Mr Fargher was party to his decision. He said "Mr Fargher and I discussed the matter and the decision was made by myself". He added "I didn't seek advice or contact Mr Sinden and I made sure he was not involved. There had been criticism of his involvement." The procedure, said Mr Brown, was that he would signify his decision and it would then be passed on to the Planning Office to formulate the statutory notice.

"In this case, Mr Brown said, Mr Fargher called Mr Sinden down and he was told of the Minister's decision and asked to formulate the Planning Notice (subject to Mr Brown's direct approval). Later Mr Brown saw Mr Sinden's draft conditions which had been typed by the secretary and Mr Brown amended it."

11.21 DLGE's files show that the conditions of approval were prepared in Mr Sinden's handwriting; although the judgment refers to them being dated 7th December 1992 (the date when the Inspector's Report reached DLGE) there is no sign of this in the file. There is, however, a typed version of Mr Sinden's draft which has endorsed on it, in the Minister's hand, "Margaret: to be amended as marked JAB"; and there is a handwritten note by Mr Sinden to the same effect: "Margaret: If possible for Minister before he leaves! Thank you, Brian." The draft first typed for the Minister to sign was evidently dated

17 C /CMPil/ mck 14th December (a Monday) and, after the Minister made changes to it, it was finally issued and apparently signed by the Chief Executive' on 18th December (a Friday). It is clear that the alteration to the draft was made by theMinister and not by Mr Sinden.

11.22 In written evidence to the Committee, Mr Brown has said:-

"I can confirm, as I did in the High Court on 17th July 1996, (reference Deemster Corrin's judgment, 3' October 1996 - page 16) that I was aware of criticism of Mr Sinden's involvement.

"The statement by Mrs Pilling in her second affidavit to the Select Committee in paragraph 82(a)(i) is therefore incorrect where she states in relation to my evidence given in the High Court: "... confirmed that he knew of my complaints concerning Mr Sinden ...".

"During my time as Minister for the Department of Local Government and the Environment - December 1989 to October 1994 - I did not receive any oral or written complaint or expression of concern from Mrs Pilling regarding the involvement of Mr B Sinden, Planning Officer, in relation to her planning application(s) regarding the land at Colby.

"Whilst I was aware that there had been some expression of concern regarding Mr Sinden's involvement in dealing with Mrs Pilling's planning application, not an unusual expression made in relation to planning officers when they deal with some planning applications, I understood that there had been no formal complaint made.

"I confirm that no formal complaint was ever made to me by Mrs Piling, either orally or in writing regarding Mr Sinden. I can also confirm that Mrs Pilling did not put any concerns, or make any formal complaint to me either orally or in writing regarding the actions of Mr M I Savage my Chief Executive."

7 The same signature appears on another document in the file with the qualification, in the same hand, "Deputy" before "Chief Executive".

18 C/Ch/Pil/mck 11.23 We have seen no evidence which in any way contradicts these statements, and the affidavit of Mr Fargher in the litigation states in connection with the determination of the appeal:-

"I advise that [the discussion about the appeal] took place in the Minister's room and that there were no persons present other than myself and the Minister. Once the basic decision had been reached, the Minister and I discussed how the decision would be formulated and conveyed to the applicants. It is usual for Approval Notices, even in cases of appeal, to be drafted by the planning assistant for the relevant area. Thus, at this stage Brian Sinden was called down into the Minister's office, informed of the Minister's decision and instructed to draft the Notice of Approval. I confirm that Brian Sinden took absolutely no part in the decision-making process."

11.24 We find that Nir Brown received no communication at all from Mrs Pilling, still less anything which could be construed as a complaint by her. Quite clearly, Mr Brown acted as Minister on the advice of his officials, as he was entitled to do. As Minister, he was entitled to expect that if any statement had been made which was or should have been taken as a complaint it would have been dealt with according to the requirements of the SCP. The SCP, as we have noted at paragraph 6.4(d), is concerned with complaints against officials, and it is for the management of the Department to ensure that it is respected.

11.25 The Minister is not an official and his essential function is not that of administering the department: that is a matter for the Chief Executive and his deputies; by contrast, the Minister's functions relate to policy and to choices concerning the implementation of policy. In the event of it being brought to the Minister's attention that a complaint has been made and the SCP not applied, it may then of course be appropriate for him to require an explanation of why correct administrative practice has not been followed. In

19 C/CNE-11/alck all the circumstances, we conclude therefore that there is no basis for criticising Mr Brown in relation to the operation of the SO" in connection with his determination of Mrs Pilling's appeal in application 1992/0013.

Complaints to Mr Donald Gelling MHK

12.01 Mrs Pilling's evidence to your Committee included representations that she had over time sought the assistance of Mr Donald Gelling MHK, the Member for her then constituency, in connection with Mr Sinden's involvement. Mrs Pilling told us that she had lived in Ballasalla since 1987 and had approached Mr Gelling for his advice in regard to her plans for development at Colby. Mrs Pilling states that in 1991, when Mr Gelling was Minister for the Treasury, he was "fully aware" of negotiations which had been taking place between Mrs Pilling and the then DHPP about drainage for the proposed development. Specifically, Mrs Pilling says that:-

"When I received a copy of Mr Sinden's Report to the Planning Committee of April 1992, I discussed his erroneous statements with Mr Gelling and that it was quite wrong for a planning officer to call in question the policies of his Department and of his Minister. I informed Mr Gelling that I had complained to Mr Savage about Mr Sinden in 1991 and that I could not understand why he was allowed to make recommendations regarding this 1992 planning application."

12.02 Mrs Pilling and her husband had a meeting at DLGE on 10th January 1993 at which Mr Gelling was present; for the Department, there was Mr Fargher the Deputy Chief Executive. We have been unable to find any record of the meeting in the Department's files; the only contemporary evidence of it is contained in a letter from Mrs Pilling to Mr Fargher on 9th March 1993. From this letter, it is apparent that the meeting was a full and formal complaint about the handling of application 92/0013, and concerned both planning issues and maladministration. On the latter, the matters specifically raised were: (1) Mr Sinden's involvement prior to the Planning Committee's meeting on 8th May 1992 about the application,

20 C/CNIPE/Inck and (ii) Mr Sinden's preparation of the Planning Committee's subsequent submission to the Inspector. Mrs Pilling's letter enclosed the documents relevant to her concerns and noted that:

"Copies of these letters and documents were left for your consideration and to aid you in further enquiries as to the best way forward."

12.03 It should be added for completeness, that Mrs Pilling also complained about the advice in a letter from Mr David Killip on 22nd October 1991, which had followed the failure of the 1990 application and which contained suggestions as to the future content of her applications. Mr Killip had, at the time, been secretary of the Planning Committee, and his letter had dealt with debateable issues of planning policy as such, which were excluded from the SCP by paragraph 1(8) of Appendix 1 as matters which could be the subject of an independent appeal. Mrs Pilling's evidence to your Committee does not raise the advice in Mr Killip's letter as a continuing issue, and we do not deal with it further.

12.04 Mrs Pilling says that Mr Fargher "was told that we had complained about Mr Sinden to the late Mr Savage on several occasions. Mr Fargher was well aware that I was now complaining to him about the past actions of Mr Sinden." Mr Fargher is said also to have promised to consult the Planning Committee about a comment which had been made by the Inspector in his report concerning a yet further application.

12.05 In his affidavit in the litigation, Mr Fargher confirms that the meeting indeed took place and that both points were raised. With regard to Mr Sinden's involvement, Mr Fargher says only that Mrs Pilling "felt that any further application should be dealt with by an officer other than Brian Sinden. I passed these comments on to the Chief Executive, Mike Savage, who indicated to me that in his opinion there would have to be very strong reasons to justify the removal of a planning officer." In his correspondence with Mrs Pilling about the matters raised at the meeting on 10th January, Mr Fargher did not mention the question of Mr Sinden's position at all. In representations to us, Mr Fargher's

21 C/CMPi1/mck advocates have said that "Mr Fargher does not think that it is significant that his subsequent correspondence about the matters raised at the meeting on 10th January 1993 did not mention the question of Mr Sinden."; your Committee's view is that Mrs Pilling was entitled to infer that her complaints were being dealt with appropriately.

12.06 In regard to the meeting on 10th January 1993, your Committee reach two conclusions. The first is that, on the balance of probabilities, Mrs Pilling did express herself in terms which should have been seen as a complaint and dealt with as such. It is most unlikely that, given the history of Mrs Pilling's concerns about Mr Sinden, her representations about his involvement were so bland or so low-key that they did not have the character of complaints.

12.07 Mr Fargher's advocates added that Mr Fargher did not accept that there had been "a formal complaint". That comment, however, fails to take account of paragraph 8(i) of the SCP that "The availability of a complaints mechanism should be made known to those dissatisfied with service received or decisions made." To request that an official should be removed from a case is itself prima fade evidence that a complaint about that person is being made; and for the role of an individual official to be referred at all to the Chief Executive for his personal attention indicates that it was serious and not a matter of routine management. This conclusion is supported by the fact that Mrs Pilling subsequently requested that the then Acting Director of Planning should personally handle her next application — see 13.01 below.

12.08 There is no indication at all that Mrs Pilling's concerns were taken seriously, let alone that the application of the SCP was even thought of. Nor is there any evidence that the late Mr Savage asked what had given rise to Mrs Piling's request, or that he was told; the most likely inference is that the issue was minimised by Mr Fargher or by Mr Savage - or indeed by both of them, since Mr Savage had been aware throughout 1992 of Mrs Pilling's concerns.8

8 Mr Savage had even mentioned them to Mr Sinden who, in his affidavit in the litigation, says: "I do however recall Mr Savage indicating to me in passing on one occasion that [Mrs Pilling] was worried that as a resident of Colby other residents may decide to 'lobby' me with their views."

22 C/CMPil/mck 12.09 In evidence to us, Mr Fargher said only:-

"I agreed to raise these concerns with the Chief Executive, Mr Mike Savage, and this I did later that day. He took the view that there would have to be very strong reasons to justify the removal of Mr Sinden from dealing with the planning applications submitted by Mr and Mrs Pilling. I am now aware that no entry was made in the Department's Complaints Register at that time."

12.10 In these circumstances, your Committee therefore find that the Chief Executive the late Mr Mike Savage and his deputy Mr Maurice Fargher failed to give effect to the requirements of the SCP in relation to Mrs Pilling's complaints about Mr Sinden on 10th January 1993.

12.11 Your Committee's second conclusion in regard to the meeting on 10th January 1993.is that Mr Gelling was effectively in the same position as that of Mr Brown when he acted as Minister dealing with the appeal. The Deputy Chief Executive of DLGE was the Department's representative at the meeting. In terms of his seniority, Mr Fargher was therefore the second official of the Ministry; the meeting was not with a junior official whose handling of matters might - possibly - have been thought to be in need of double-checking. Mr Gelling's comment to your Committee is indeed that he brought Mrs Pilling's complaint to the attention of the Chief Executive of the Department, as well as at various times directing her concerns to the Attorney General or the Chief Secretary.

12.12 It is difficult to see what further steps Mr Gelling could have taken on behalf of a dissatisfied constituent than to arrange a meeting at the top level in the Department. We repeat that Members of Tynwald are not required to act as the management of the Civil Service on a day to day basis, and that Mr Gelling was well entitled to suppose that appropriate action would be taken by management following the meeting. The statement in the SCP at paragraph S(vi) that "A Member of Tynwald will always be deemed to have a sufficient interest in a complaint that is brought to his attention" does not alter that conclusion: the purpose of that statement is prevent any objection to a Member of Tynwald pursuing a case for a member of the public on the ground only that the complainant is not that Member's constituent.

23 C/CNIPil/ffick 12.13 Your Committee thus conclude that there is no ground for suggesting that Mr Donald Gelling MHK was required to give effect to the requirements of the SCP in relation to Mrs Pilling's concerns or, therefore, that he failed to do so.

The 1993 application — 1993/0063

13.01 On 8th April 1993, Mrs Pilling informed the Director of Planning (Acting), Mr Barry Vannan, that she would be submitting a further application, and requested that he himself would handle it. Mr Vannan replied that he could not give any assurance, but that "in this particular case it may well be that I shall handle the application". The application was made on 14th April, and was refused by the Planning Committee on 22nd June.

13.02 Your Committee were troubled to find that, notwithstanding everything which had gone before, the planning application was yet again handled by Mr Sinden (who recommended its refusal). In spite of the fact that DLGE seems not to have kept any records of meetings with Mrs Pilling, as Acting Director of Planning Mr Vannan cannot have been unaware of the background to the Colby applications and Mrs Pilling's objections to Mr Sinden. There is no evidence in DLGE's files that Mr Vannan tried to find out why Mrs Pilling had made the request that he should deal with the application himself, and his affidavit in the litigation contains this dismissive comment:-

"My final involvement with [Mrs Pilling's] applications was upon receipt of [her] letter of 8th April requesting me to exclusively deal with the new application. Such demands are of course unacceptable and the officer appointed, in this case, Brian Sinden, continued to prepare the report."

13.03 It is tempting to infer from the fact of Mr Sinden's continued involvement that officials had by then decided that Mrs Pilling's complaints should be ignored, and that the matter had become a contest of wills; while there is no final proof that that was the case, it is however clear that Mr Vannan at least closed his eyes to what was evidently amiss. In view of the admission in his affidavit that he had had no intention of acceding to Mrs Pilling's request for him to deal with the matter himself, it was curiously disingenuous of him to have suggested in his

24 C/CMPil/mck reply to Mrs Pilling that "it may well be that I shall handle the application". We note that there is no suggestion that DLGE's position was politically inspired, or that any Member of Tynwald was aware of it.

13.04 We return later to the question whether the continued involvement of Mr Sinden in these planning applications and appeals did influence their outcome. For the moment, we note that in the litigation to which we have referred the learned Deemster was categorical in his opinion that Mr Sinden should have been removed from this work, and it cannot be said that that option did not at least merit consideration. But it is unfortunately clear that the independent and reflective examination of it which the SCP provided for was at no time even considered by officials - still less undertaken.

13.05 In the particular circumstances of this case, we find that the Acting Director of Planning, Mr B Vannan, ought to have recognised Mrs Pilling's request to him of 8th April 1993 to conduct the consideration of her new application himself as a complaint about the conduct of the officer who had previously dealt with her applications. An appropriate course for him to have taken would have been to deal with the matter himself, in which case the complaint would have been one "dealt with in the spot" - see SCP Appendix 1, paragraph 1(5); alternatively, he could have recorded a complaint and investigated it. Mr Vannan did neither.

13.06 Faced with the Department's refusal to take her complaints seriously, Mrs Pilling - according to her affidavit in the litigation - then concluded that there was no point in going on, and withdrew a request she had made for a review hearing of the Planning Committee's refusal. Mrs Pilling said that she saw Mr Sinden as "judge, jury and executioner of all planning applications upon the land adjacent to Cronk-y-Thatcher"; she pointed out that Mr Sinden and his family lived in Colby and that the late Mrs Sinden was on the Board of Commissioners for Arbory parish; and, in Mrs Pilling's view, Mr Sinden had always opposed the applications or sought to reduce their scope. In October 1993, Mrs Pilling commenced proceedings against DLGE and Mr Brian Sinden alleging breach of statutory duty, negligence and misfeasance in a public office; this is the action referred to at 11.02 above.

25 C/CMPi1/mck IV THE RECORDING OF THE COURT PROCEEDINGS ON 16th JULY 1998

Introduction

14.01 In your Committee's Interim Report, it was concluded - paragraph 9 of the Report - that the failure to make a sound recording of the hearing in the High Court on 16th July 1998 of an action by Mrs Pilling against DLGE was the result of (i) there being insufficient recording equipment, (ii) over-reliance by the Chief Registrar on his divisional subordinate, (iii) uncertainty by the presiding judge about what was required, and (iv) uncertainty by court officials in regard to their obligations.

14.02 The final part of our remit requires us to examine the application of the SCP to Mrs Pilling's complaint about these failures. It must be emphasised that Mrs Pilling has made a number of other complaints with regard to the hearings of her legal actions and that, with the exception of the matter mentioned at paragraph 7.2 above which we refer to further below, they have not occupied our attention since they are outside the remit given us by Tynwald Court.'

14.03 We note that the staff of the General Registry have been helpful in seeking to identify papers that are relevant to this inquiry and your Committee has not been obliged, as in the case of DLGE, to conduct an exhaustive search of all the files. The Chief Registrar has stated that there is no record of any complaint made by, or correspondence, with Mrs Pilling between 1991 and 1993; and that the only item actually recorded in the Registry as a complaint concerned the failure to record the High Court hearing on 16th July 1998.

14.04 The requirement for "substantive" proceedings in the High Court to be recorded was introduced by section 27 of the High Court Act 1991, and was brought into force with effect from 1st April 1998 pursuant to the High Court Act 1991 (Appointed Day) (No. 2) Order 1998 and the High Court of Justice (Audio Recording) Rules 1998.

Strictly speaking, action by the General Registry is outside our remit since it is neither a Government Department nor a Statutory Board, but your Committee is satisfied that the resolution appointing it intended that the Registry's actions should be considered.

26 C/CMPil/mck 14.05 Mrs Pilling had at her request been briefed by the Registry about this development before the hearing of her case on 16th July 1998 because she attached importance to the hearing being recorded. Mrs Pilling told us in evidence that she had assumed that the recording would take place but that she had only become aware of the fact that no recording was being made during the hearing itself. Neither Mrs Pilling nor her advocate had drawn attention to it. In evidence to us, Mrs Pilling summarised her reasons why:-

"Well, if you look at it also that if we had objected and the Deemster insisted on carrying on with the hearing, where was that going to get us? All we would have done is prejudice our case by saying, 'You are not doing what you should be doing.'"

14.06 It must be emphasised that the question whether Mrs Pilling's advocate had a duty to inform the court of this irregularity, once he had become aware of it, or whether indeed he was instructed not to do so, are not for your Committee to consider: we are concerned only with the application of the SCP.

The failure to record the hearing — the General Registry

14.07 On 16th December 1997, Mrs Pilling had issued proceedings against DLGE claiming damages of £1.6M for negligence and breach of statutory duty on the ground of the Department's failure to implement the SCP in relation to her planning affairs. The action (CLA 1997/296) was heard by Acting Deemster Shorrock on 16th July 1998 and, as is explained in your Committee's Interim Report, it was not sound-recorded as it should have been.

14.05 A written-up note of the judgment (which had been delivered orally at the end of the unrecorded hearing) was made by the Acting Deemster on 31' July 1998, and is at Appendix 4. It recorded that the outcome of the previous litigation had been that Mrs Pilling's claims against DLGE and Mr Sinden for breach of statutory duty, negligence and misfeasance in a public office had all failed, but that the Deemster who had heard the action had been "extremely critical of the Department's failure to heed the complaints made by the plaintiff Mrs Pilling to have Mr Sinden removed from a position where he could consider the planning application."

27 C/CMPil/mck 14.09 DLGE argued that the subject matter of this new action had already been dealt with in the first action and that the issue could not therefore be re-litigated. At an interlocutory hearing on 16th July, on a motion by DLGE to stay or dismiss Mrs Pilling's further claim, that argument was successful and the new action was dismissed on the ground that it was frivolous and vexatious and that the matter sought to be litigated was res judicata. Mrs Pilling's further action therefore never got as far as full trial.

14.10 The day after the hearing on 16th July, Mrs Pilling wrote to the Chief Registrar complaining that the hearing had not been sound-recorded, contrary to the clear requirements of section 27 of the High Court Act 1991. There is no dispute that the recording had not taken place, and no dispute that the failure to record amounted to a breach at least of the office's standing instructions, and perhaps of the statute as well. The Chief Registrar, having returned from leave to find Mrs Pilling's complaint, wrote to her on 29th July admitting the error and offering his unreserved apologies for it.

14.11 The Chief Registrar had ascertained that the fault had occurred because of a practical difficulty over the installation and connection of recording equipment' in the courtroom in question, which ought to have been overcome; and he stated in his letter that he had made it clear to his staff that all High Court hearings had to be recorded. The Registrar also indicated that he had arranged with the Acting Deemster for the advocates' notes of the hearing to be made available to him so that, with the Deemster's own notes, he could let Mrs Pilling have a written record of the proceedings; in the event Mrs Pilling did not take up that offer. The Acting Deemster's oral judgment would in any event be written up from his notes. The Chief Registrar emphasised that it would be a matter for Mrs Pilling's advocate to advise on the merits of any appeal, which previous correspondence from the Head of Courts Division before the Chief Registrar had returned, had made clear remained Mrs Pilling's right.

Mrs Pilling has pointed out that this has been put differently by different persons as either a difficulty in installing equipment or an absence of any equipment to install: the practical consequence is the same, and the distinction is immaterial to the substance of the complaint.

28 C/CNffT/Inck 14.12 Mrs Pilling was, of course, aware of the SCP when she made her complaint on 17th July, so there had been no need to inform her of it. The Chief Registrar investigated the complaint summarily, and it emerged that the fault had lain essentially in the failure of staff to ensure that working equipment was actually in the courtroom and operating when the hearing began.

14.13 But an important subsidiary cause was that, although the First and Second Deemsters had made it clear that all hearings should be recorded, whether 'substantive' or otherwise, the position had (in the three and half months since recording had become mandatory) not been entirely clarified where the hearing was before an Acting Deemster. Mrs S M Ash, then Head of the Courts Division, told us: "I would consider that it is up to each Deemster to decide whether they considered the matter to be substantive or not". Mrs Ash added, with regard to the hearing on 16th July, that she would have told the court clerk something like: "It is a preliminary motion that we are not legally obliged to record, but make sure the Acting Deemster is aware that it is not being recorded".

14.14 It is apparent that the action taken by the Chief Registrar satisfied the SCP's requirements: in the Chief Registrar's absence, the complaint was acknowledged at once by the Head of Courts Division; the Chief Registrar — who was independent of and senior to the officials responsible for actually making the courtroom recording, or seeing that it was made, and was the person ultimately responsible for the Registry - himself investigated it; practical steps were taken at once to make amends for the fault as far as possible; action was taken to ensure that the error was not repeated; and the complaint was registered in the Registry's Complaints Register. In saying that the issue was straightforward, we do not minimise the error that occurred, but we do see the steps taken to investigate and remedy the complaint as quite sufficient in the circumstances.

14.15 We therefore conclude that the Chief Registrar's action on receipt of Mrs Pilling's complaint of 17th July 1998 was in accordance with the SCP.

29 C/CNTO/ffick 14.16 Mrs Pilling was not satisfied with the Chief Registrar's response and wrote to him on? August claiming an unquantified sum to compensate for the fact that it would be more difficult - she claimed that it would now be impossible, since no note had been taken of DLGE's case - adequately to pursue an appeal. After consulting the Attorney General, the Chief Registrar referred the claim to the Government's insurers, who wrote to Mrs Pilling on 4th September refusing compensation on the ground that she had sustained no financial loss.

14.17 The claim for compensation was not a complaint and, since Mrs Pilling had not quantified her alleged loss, it was not for the Chief Registrar to do anything more than he did in notifying insurers of it. Quite apart from the question of his responsibility in the use of public funds, the Chief Registrar had no basis upon which to quantify Mrs Pilling's claim: if it was to be supposed that an appeal would not have succeeded, she would in that case have suffered no loss; if a successful appeal were to be postulated, the most that that would have achieved would have been that Mrs Pilling's claim would have proceeded to trial, but it could not be assumed that it would have succeeded there, or to what extent.

14.18 There remains a peculiarity in relation to the reporting of complaints for 1998 by the Registry to the Chief Secretary. The form on which this was done, showed that one written complaint had been made and that it had been resolved at the level of Chief Officer; the covering letter submitting the return dated 18' February 1999 stated in contradiction to this: "There were no complaints outstanding at the beginning of [19981 and no other complaints were made during the year"; presumably the reference to "other" complaints was meant to allow for the existence of Mrs Pilling's complaint, but the phrase was ambiguous. Its use obviously led to the Chief Secretary's annual report to Tynwald in 1999 stating that no complaint had been recorded by the Registry in 1998. Mrs Pilling noticed the error and raised the matter with the Chief Registrar on 25th May 1999. It was subsequently corrected by an erratum laid before Tynwald in October 1999.

30 C/CMPil/mck 14.19 The present Chief Registrar has told us that she believes that the application of the SCP in the Registry has operated satisfactorily, though there are times when it is difficult to determine whether a person is making a complaint, passing a comment or posing a query. In an effort to resolve that dilemma, the Registry has recently launched its own internal complaints procedure, which includes an official complaints form and guidance to staff. A particular difficulty, we are told, remains at the margins where a matter more nearly concerns the actions or otherwise of the judiciary rather than those of the administration.

14.20 His Honour the First Deemster told your Committee that, when second Deemster, he had himself always had proceedings before him recorded, but that that had not been the practice of his predecessor. Since section 27 had come into force, it had not been a matter for the Deemster hearing the case to decide whether recording should take place: it was a legal requirement that it should. As far as His Honour is aware, all High Court proceedings have been recorded since the section came into force except for the hearing of Mrs Pilling's case on 16th July.

The failure to record the hearing — the Civil Service Commission

15.01 Mrs Pilling then commenced correspondence with, among others, the Attorney General with a view to his taking action in respect of the error that occurred in the General Registry. Mrs Pilling asserted that any civil action against the Registry or the Registrar would be impossible because they themselves would have to administer it, though the Attorney General denied that there would be any such impossibility. Mrs Pilling then sought the prosecution of the court officials for breach of section 27 of the High Court Act 1991 or for conspiracy contrary to section 330 of the Criminal Code 1872: the Attorney General replied that there was no such offence as breach of section 27, and that he saw no evidence to justify a prosecution for conspiracy.

31 C /CMPil/mck 15.02 Mrs Pilling's correspondence with the Attorney General on those lines took place between October 1998 and October 1999 but by the end of it matters had, as far as Mrs Piling was concerned, been taken no further. Meanwhile, Mrs Pilling started writing to the Chairman of the Civil Service Commission, Mr George Waft MLC on 2nd August 1999, pointing out that the SCP required - at paragraph 8(ii) - that "Where complaints remain unresolved, the Departmental procedure should allow for reference to the Chief Officer and ultimately to the Minister". Mrs Pilling rehearsed the difficulties she had encountered with the Registry and the additional error which had been made in failing to make a correct return to Tynwald showing her complaint. In Mrs Pilling's opinion, her complaint had been left unresolved and she invited Mr Waft's response as to the action he proposed to take.

15.03 Mr Waft took the necessary time, bearing in mind the holiday season, to investigate what had taken place and replied to Mrs Pilling on 20th September:-

"Having made my own enquiries about the incident I am satisfied that the matter was investigated fully at the time of your complaint in 1998. Also, I am satisfied that there has been no misconduct on the part of Mrs Ash or [the court clerk] Ms Dugdale. I can assure you that it was a genuine practical difficulty with the equipment."

15.04 Mrs Pilling challenged Mr Waft's conclusion that there had been no misconduct by the Registry staff when she replied on? October. Mr Waft replied that he did not accept that there had been a case of "wilful misconduct" by the court officials. Mrs Pilling continued to insist that a "most serious" breach of the law had occurred: that it was being "deliberately ignored"; that there had been "blatant negligence" on the part of the officials for which there were "no mitigating factors"; and a large number of "important questions" had not been answered, namely:

(i) if there had been a shortage of recording equipment, why had it not been rectified?

32 C/CMPil/mck (ii) if there had been a difficulty in installation, why had a different reason — that there was no equipment - been given in correspondence by Mrs Ash?

(iii) why did the court clerks decide that other hearings should be recorded, but not Mrs Pilling's?

(iv) why did the court clerks decide that Mrs Pilling's hearing should proceed in the absence of a recording? And when did they make that decision?

(v) why did those civil servants maintain silence about .the absence of a recording, so that the hearing went ahead without one?

(vi) was the Acting Deemster told that there was no recording, and if so by whom?

(vii) was the Acting Deemster apprised of the Manx law about recording? Did he ask, or was he told?

(viii) was anyone else aware that the proceedings were not to be recorded?

(ix) why did the First Deemster, who was also sitting on 16th July, not ensure that the proceedings in all other courts were being recorded?

15.05 Mrs Pilling said that these were "just a few" of the questions to which she had never received an answer, and which in themselves must give rise to further queries about Mr Waft's stated satisfaction that there had been no misconduct. Mrs Pilling demanded to see the Chief Registrar's report in the case, and pressed Mr Waft for "a complete report of your own findings in this matter". Mr Waft replied on 4th November that, having consulted the Attorney General, he could add nothing further to the explanations already given, and that in regard to the conduct of the officers concerned he considered matters concluded.

33 C/CMPiI/mck 15.06 Mrs Pilling continued the correspondence with Mr Waft, reiterating the same concerns. Mr Waft confirmed that his replies had been considered by the whole of the Civil Service Commission and endorsed by fellow Commission members. The correspondence comes to a close in December 1999, but not before Mrs Pilling had made a further complaint in these terms:

"I therefore formally lodge a complaint that the Civil Service Commission (its functions, by your admission, having been exercised by you) has not fully informed me of its investigation into the unresolved complaint concerning the General Registry".

15.07 On 12th January 2000 Mrs Pilling then wrote to every Minister of the Isle of Man Government enclosing what she described as "a large bundle of documents" putting her complaint before the Council of. Ministers. We pursue the history of Mrs Pilling's correspondence no further, because your Committee are clearly of the view that the possibilities of the SCP were fully exhausted when the matter had been referred to the Chairman of the Civil Commission, as the appropriate political head of the General Registry. Any consideration of the matter beyond that point is wholly outwith the terms and intent of the SCP.

15.08 As has been made clear at the beginning of this Report, the SCP is designed to address the possibility of maladministration by officers of the public service. It is not a means of political action. The provision in paragraph 8(ii) of the SC? for unresolved complaints to be referred ultimately to the political head of the official body concerned takes the complaint outside the scope of the procedure altogether. The Minister, or other political head of the agency concerned, no more becomes an administrator after the reference to him of a matter under the SCP than he was before it was made. At that stage, the disposal of the case becomes a matter for political decision, albeit that it concerns administration rather than politics. Your Committee consider that if the political head of the service in question decides that the public interest is satisfied by the steps that have been taken, that is a decision for which he is answerable only to Tynwald Court.

34 C/CNIPil/nack 15.09 In evidence to us, Mr Waft stated that his conclusions were based on outlines of events written by the two court clerks and the letter from the Chief Registrar to Mrs Pilling explaining the situation at the time; and that there was no independent investigation into the matter by the Commission. The decision to rely on that evidence, and not to conduct any further investigation, was one which the Commission was very well entitled to take. In taking it, they are answerable only to this Honourable Court. Your Committee's view in the circumstances, is that the Commission's decision was entirely reasonable, and proportionate to the case.

15.10 Accordingly, your Committee find no fault with the handling of Mrs Pilling's complaint to the Civil Service Commission.

V MR BENET HYTNER QC

16.01 In her written evidence to us, Mrs Pilling has raised a number of issues which fall outside your Committee's remit. There is one case, however, we have thought it necessary to draw to the attention of the proper authority, since the complaint raised could, if well-founded, have had a direct impact on matters which were within our remit. The issue in question relates to the validity of the continued appointment of Mr Benet Hytner QC as judge of appeal for the purpose of hearings on 2" and 3rd October 1997 which concerned litigation between Mrs Pilling and DLGE.

16.02 Mr Benet Hytner's extended term of office as judge of appeal was to expire on 24th September 1997, but it was extended for a further two months from that date. A new judge of appeal, Mr Geoffrey Tattersall QC had, however, been appointed on 15th September 1997, so that it appeared that there were two appointments of judges of appeal running concurrently, albeit only for a short period. The difficulty about that situation was that section 3 of the High Court Act 1991 provides for the appointment of only one judge of appeal, so that it appeared that Mr Hytner's re-appointment for two months from 24th September was beyond the powers conferred by the section.

35 C/CMPi1/mck 16.03 We therefore referred the complaint to His Honour the First Deemster, who advised your Committee in these terms:-

"Section 9(3) of the High Court Act 1991 states:

'Every judge of the High Court shall, before he enters on the execution of his office, take the oath of allegiance and the Deemster's oath.'

The Judge of Appeal is a judge of the High Court by virtue of section 3(1) of the High Court Act 1991.

Mr Tattersall was sworn into the office of judge of appeal on 4th November 1997. I enclose a copy of the certificate in the Liber Juramentorum as evidence of the swearing in. Mr Tattersall did not therefore enter into office as Judge of Appeal until after Mr Hytner's appointment had expired. Mr Hytner was the Judge of Appeal on 2nd October 1997. Mr Tattersall had not then entered into office, although his warrant of appointment was dated 15th September 1997. There was therefore no irregularity in Mr Hytner sitting as Judge of Appeal on 2nd October 1997."

VI COMPENSATION

17.01 Your Committee's remit does not expressly provide for the question of compensation to be considered, but it is inherent in the SCP that steps must be taken to remedy maladministration which has been found to exist. In exceptional circumstances, those steps may involve the reimbursement of financial loss occasioned by what has been done wrong. We have therefore considered whether such circumstances have been shown to exist in any of the areas considered in this Report.

36 C/ChtPil/mck 17.02 In relation to Mrs Pilling's dealings with DLGE between 1991 and 1993, your Committee believe that it is clear that there were numerous failures to give effect to the SCP, and they have been identified in the preceding paragraphs as they occurred. The question is: did Mrs Pilling suffer financial loss on account of them?

17.03 We concur with the opinion expressed by His Honour Deemster Corrin, in the judgment from which we have quoted several times, that a proper and independent review of Mrs Pilling's complaints about Mr Sinden's involvement in her planning affairs would and should have led to their being handled by another officer.

17.04 That view in no way implies any criticism of Mr Sinden himself in so far as his professional competence and integrity are concerned. Your Committee have no reason to differ from the assessment of Mr Sinden made by Deemster Corrin (at page 20 of the judgment):-

"In court, Mr Sinden struck me as a professional officer, dedicated to his work and one who, in his own words has 'endeavoured to act honestly, professionally and honourably at all times'."

17.05 But, in agreement with the learned Deemster's formulation (at page 17 of his judgment) of the principle that the disinterest of those dealing with public business should be demonstrable, your Committee's recommendation is that it should be accepted as a rule in the public service that wherever an official might reasonably be perceived by a member of the public to be likely to be biased, partial or otherwise personally interested in the outcome of dealings between the citizen and the state, that official should cease to be involved with them.

17.06 We see no case made, however, that Mrs Pilling suffered financial loss because of the failure to respect this principle. That issue has, in effect, already been decided in the litigation, for it will be seen that it is dealt with fully and explicitly in Deemster Corrin's judgment at pages 22 and 23. To establish any causal

37 C/CMPil/mck connection between DLGE's failures and a financial loss by Mrs Pilling would involve unacceptable and unjustifiable speculation about the inevitably uncertain outcomes of the planning decisions.

17.07 The matter also of Mrs Pilling's costs in the litigation is likewise already dealt with. It will be seen that in Acting Deemster Shorrock's notes of his judgment dismissing Mrs Piling's action CLA 1997/296 he said:

"I am fortified in my conclusion by a further consideration. At the conclusion of the [main] case CLA 1993/199 the learned Deemster heard argument as to costs. Mr Moroney for the Plaintiff [Mrs Pilling] was asking that the Defendant [DLGE] should pay her costs. The basis of his claim was the passage that I have quoted from the learned Deemster's judgment at pages 16 and 17. The thrust of the argument was that the Defendant had brought the action upon themselves by failing to heed Mrs Pilling's complaints and it ought therefore to pay her costs.

"In the event, the learned Deemster made no order as to costs. The usual order would have been that the costs should follow the event. Part of the claim for damages in the action before me is for the costs of the previous action. The fact that the Deemster made such an order only goes to show how much of the issue of complaints and the Department's failure to respond was all part and parcel of the first action."

17.08 We note finally in this connection, the comment of Deemster Corrin in his judgment in the main litigation, case CLA 1993/199 at page 23 of the transcript, that:-

"The point is that there can be no certainty of the success of a planning application, even in respect of land which is zoned for residential development. That is no guarantee of the grant of planning permission, as was shown in the recent case of Mill Baldwin. In the present case, Mrs Pilling's land was not so zoned. ... Mrs Pilling is not entitled as of right to planning permission in principle on her land and therefore she cannot say that damage has been inflicted upon her."

38 C/CMPi1/mck 17.09 Your Committee thus conclude that there is no actual financial loss to Mrs Pilling which can be shown to be outstanding as a result of the failures by DLGE to give proper effect to the SCP which we have identified.

17.10 In relation to the error acknowledged to have been made by the General Registry, a not dissimilar conclusion imposes itself. It has been seen that Mrs Pilling made, but did not pursue, a claim for financial compensation for the failure to record the interlocutory hearing on 16th July 1998. There is no way of quantifying any loss which may have occurred as a result, and Mrs Pilling has not attempted to do so. It is not entirely clear whether the failure to record the hearing was a breach of the legislation itself - since the hearing was only interlocutory - or whether it was simply a breach of the wider standing instructions which had been given: whichever was the case makes no difference to the conclusion.

17.11 Your Committee's further conclusion is therefore that no financial compensation is due to Mrs Pilling for the very regrettable series of failures in the public service from which she has suffered.

VII FUTURE ACTION

18.01 It is apparent from the evidence which we have reviewed that Mrs Pilling's experience of the public service over a significant period of time was one which no citizen should be expected to encounter. Matters may well have improved since the events which we have examined took place, but what your Committee have seen, however, gives little ground for supposing that the mechanism for taking up complaints from members of the public is adequate and, on the contrary, that there are grounds for disquiet about it which would justify requesting the Council of Ministers to conduct a comprehensive review of the SCP and to report to the Court on it.

39 C/CMPi1/mck 18.02 Such a review should ensure that all levels of staff in the public service receive training in recognising and acting on dissatisfaction by the public, whether in any particular case it amounts to a recordable complaint or not. In particular, it is clearly unsatisfactory if notes are not kept of meetings generally, or records not made of problems which come to a Department's attention which can be used to promote better practice in the future. Mrs Pilling, as we have indicated, has added further to her complaints in the course of giving written evidence to us which it has not been within our remit to consider. The limitations of the current system, overall, suggest to us that the review by the Council of Ministers which we propose should include a fresh look at whether a Complaints Ombudsman, whose reports would be laid before Tynwald, should be established.

18.03 Your Committee's recommendation is therefore that the Council of Ministers should undertake a full review of the current implementation of the Standardised Complaints Procedure, including the training of staff in its use, and of the desirability or otherwise of moving to a complaints regime supervised by an independent Ombudsman, and report to Tynwald by the end of the current Session.

VIII - SUMMARY OF CONCLUSIONS

19.01 There is no criticism of DLGE in respect of the first planning application made by Mrs Pilling in 1988 (paragraph 9.03).

19.02 Mrs Pilling' complaint of 15th May 1991 was dealt with in accordance with the SCP, but DLGE should have recorded the meeting at which it was made (paragraph 10.08).

19.03 The SCP was not followed in relation to Mrs Pilling's complaint of 18th May 1992 (paragraph 11.08).

40 C/CUMil/mck 19.04 The SCP was correctly implemented in regard to Mrs Pilling's complaint on 11th June 1992 (paragraph 11.09).

19.05 The SCP was not implemented in relation to a submission on behalf of the Planning Committee to a Planning Inspector made on 5th October 1992 (paragraph 11.13).

19.06 The SCP was not implemented in respect of Mrs Pilling's complaints of 14th and 21' October 1992 (paragraph 11.19).

19.07 The Minister of DLGE was not at fault in relation to the SCP when he determined Mrs Pilling's planning appeal on 18th December 1992 (paragraph 11.25).

19.08 The SCP was not implemented by DLGE in relation to Mrs Pilling's complaints on 10th January 1993 (paragraph 12.10).

19.09 Mr Donald Gelling MHK was not at fault in relation to the SCP in connection with Mrs Pilling's complaints on 10th January 1993 (paragraph 12.13).

19.10 The SCP was not implemented in relation to a request by Mrs Pilling on 8th April 1993 about the handling of her planning application (paragraph 13.05).

19.11 The Chief Registrar correctly implemented the SCP in relation to Mrs Pilling's complaint of 17th July 1998 about a failure to record a court hearing (paragraph 14.15)-

19.12 The Civil Service Commission were not at fault in relation to Mrs Pilling's complaints to them about the failure to record court proceedings (paragraph 15.10).

41 C/CMPil/rnck 19.13 Mrs Piling has suffered no unremedied financial loss as a result of the failures in the public service from which she has suffered (paragraphs 17.09 and 17.11).

IX RECOMMENDATIONS

20.01 It should be accepted as a rule in the public service that wherever an official might reasonably be perceived by a member of the public to be likely to be biased, partial or otherwise personally interested in the outcome of dealings between the citizen and the state, that official should cease to be involved with them (paragraph 17.05).

20.02 The Council of Ministers should undertake a full review of the current implementation of the Standardised Complaints Procedure, including the training of staff in its use, and of the desirability or otherwise of moving to a complaints regime supervised by an independent Ombudsman, and report to Tynwald by the end of the current Session (paragraph 18.03).

L I Singer (Chairman) H Hannan

December 2002

42 C/CMPil/mck Appendix 1

Written Evidence

Evidence not referred to in the First Report

1. Second affidavit of Saria Jill Pilling made on 18th October 2002 with 15 exhibits.

2. 19 files or folders of papers from the Department of Local Government and the Environment relating to planning applications on land at Colby and to subsequent litigation.

3. 1 file of evidence from the Chief Registrar.

4. 1 file of evidence in correspondence from the Chief Secretary and the Chief Executive of the Department of Local Government and the Environment.

5. 1 file of evidence in correspondence from Mrs S J Pilling.

6. Evidence in correspondence by or on behalf of -

The Hon J A Brown SHK Mr D J Gelling MLC Mr D Killip Mr M Faragher Mr B J Sinden Mr J M Watson.

Appendix 2

The Standardised Complaints Procedure 1991

STANDARDISED PROCEDURE FOR RESPONDING TO COMPLAINTS FROM THE GENERAL PUBLIC

Introduction

1. In November, 1989, the Report of the Select Committee on the

Appointment of an Ombudsman was received by Tynwald and the

recommendations contained therein were adopted.

2. The recommendations in the Select Committee's Report were as follows:-

"1.1 At present, we believe there is insufficient evidence to

determine whether it is necessary to establish an

independent authority to consider complaints of

maladministration and to assess administrative procedures

operating on the Island.

1.2 As an interim measure, we make two recommendations.

The first is that there should be introduced a standardised

procedure within the Isle of Man Government for responding

to complaints from the general public. This procedure

should contain three elements. First, each department of

Government should keep a central record of complaint!-,

received from members of the public and the action taken on

the complaint. Secondly, the procedure should indicate

clearly the level of seniority of the officer who should

investigate complaints received. Thirdly, the complainant

should receive a prompt acknowledgement of the complaint and

be kept fully informed of the progress of the investigation

of the complaint.

Our second recommendation is that the Chief Secretary should

make an annual report to lynwald, based on the centr,li records of complaints received which would indicate by

department the volume and nature of complaints received

during the previous year and the action taken to rectify

inadequate administrative procedures which have led to

complaints. We would also recommend that the annual report

from the Chief Secretary should contain, as appendices,

similar reports from the Chief Executives of the Statutory

Boards."

3. The Select Committee's recommendations clearly envisage a standardised

complaint recordal procedure which will apply to all Departments,

Boards and Offices, the annual results from which can be analysed to

assess, inter alia, the number of complaints which might legitimately

have been referred to an Ombudsman so that conclusions can be drawn as

to whether the appointment of an Ombudsman would be justified.

4. The following proposals are aimed at meeting the requirements agreed

by Tynwald and are intended to come into operation on the 1st January,

1991.

General Principles

5. Because of organisational differences between individual Departments,

guidelines on complaints procedures must allow for some flexibility

and the responsibility for devising detailed complaints procedures

suitable for each Department must rest with the relevant Chief

Officer. Nevertheless, the following guidelines are offered to

assist Chief Officers and to facilitate as great a standardisation,

across Government as possible.

6. Any organisation providing services will receive complaints, some well

founded, others not. (For a definition of "complaint", see Appendix

1.) Chief Officers should examine attitudes within their

organisation towards complaints which should be accepted dnd dealt with positively, particularly as showing ways in which performance

might be improved. A negative, defensive attitude should always be

avoided. Staff at all levels should be encouraged :-

to seek to deal with complaints with understanding, swiftly and

fairly;

to regard well-founded complaints as a means of showing up

weaknesses and improving performance in the future. Even

complaints without substance may be useful as showing a need to

work for better understanding of what a Department is trying to

do.

7. There are five principles which should be kept in mind in devising a

complaints procedure :-

(i) Accessibility It should be easy for the complainant to find out how and where

to complain. The procedures adopted should ensure that those

making complaints are not unnecessarily passed from one place or

person to another and that they are dealt with as quickly and

conveniently as possible.

(ii) Simplicity

There should be simple systems for recording complaints other

than those which can be fully and successfuly dealt with on the

spot. The procedure should have as few steps as possible and

should be described clearly and concisely.

(iii) Speed

Complaints should be dealt with promptly and time limits should

be built into the procedure.

Independence

The procedure should involve provision for the investigation of a

complaint by someone not directly involved in the matter complained of.

(v) Confidentiality

The complainant should be assured that his or her complaint will

be treated in confidence as far as possible.

A Standard Complaints Procedure

8. Based on the foregoing general principles, Departmental complaints

procedures within the Isle of Man Government should exhibit the

following characteristics :-

( -0 The availability of a complaints mechanism should be made known

to those dissatisfied with service received or decisions made.

In particular, a leaflet explaining ,the Departmental procedure

should be available to anyone wishing to complain and, where

appropriate, standard forms, brochures, invoices, etc., should

refer to the availability of the leaflet in the event of

complaint.

(ii) Clear responsibility for dealing with complaints in various areas

of activity should be allocated to appropriate line managers

within each Department. Where complaints remain unresolved, the

Departmental procedure should allow for reference to the Chief

Officer and ultimately to the Minister.

(iii) Where a complaint is made in writing, it should be acknowledge,

immediately and, if necessary, the nature of the complaint shoulc

be clarified. The complainant should be kept informed of

developments and/or be advised of any decision taken as soon a

possible. Ordinarily, no stage should take longer than seve

days. When a decision is notified to a complainant, it shoul

include advice as to what further procedures, if any, d r

available. Responsibility for this work will rest with the

designated line manager or Chief Officer as appropriate. iv) Enquiry into a complaint should be undertaken by staff appointed

for the task who are independent of those originally involved

and, where possible, they should be of more senior rank. In

the event of serious complaint, where a Department is unable to

appoint such an officer, the Chief Secretary may be approached

and he will nominate a senior officer from another Department to

consider the matter.

(v) The procedure should, so far as possible, reflect the need for

confidentiality and protect both the complainant and any staff

who may be the subject of the complaint.

(vi A Member of Tynwald will always be deemed to have a sufficient

interest in any complaint that is brought to his attention.

Where a complaint is lodged on behalf of a complainant by a

Member of Tynwald, the standard procedure should be applied

subject to the following additions :-

(a) the Member concerned should be advised of developments in

addition to the complainant;

(b) the Chief Officer and the Minister should be advised of any

complaint lodged by a Member and should be advised of

developments.

(v11) As well as recording and investigating complaints, Departments

should monitor complaints by :-

(1) considering them at appropriate management levels to decide

what action, if any, is required to prevent reoccurrence;

and

(2) identifying trends and particular problem areas.

Staff Implications

9. (i) There may be merit in having a Complaints Officer, i.e. a single

officer responsible for dealing with complaints received by a

Department. Such an officer would require to be of sufficient

seniority and standing to have the respect of senior officers and

Members.

( i i ) Care should be taken in investigating complaints that the

distinction between investigation and disciplinary procedures are

explained to staff (It has to be accepted that a complaint may,

in certain instances, lead to disciplinary action).

(iii) The institution of a complaints procedure does not relieve

staff on the ground of responsibility for initially processing

complaints and, if possible, resolving them. As such, all staff

must be familiar with the complaints procedure and their role in

it. It would be appropriate for staff to draw the attention of

a member of the public whose problem has not been resolved when

discussed orally, to the complaints procedure.

(iv) Staff must be appropriately trained or prepared to deal with

complaints.

There are three key staff training elements :-

(a) All staff must be familiar with the procedures and this

requires the preparation of detailed Departmental

instructions and the opportunity for staff to familiarise

themselves with them (through a seminar/workshop/teach-in);

(b) Some staff may not immediately support the concepts

underlying the complaints procedure. Particular attentic

needs to be made to ensure that staff have the right

attitude to dealing with complaints;

(c) Training must be repeated at regular intervals not only t

ensure that new staff know the procedures but also to remir

existing staff.

Complaints Register 10. A central .Complaints Register is to be maintained within each

Department.

11. The form of the central register should be such that it records the

following particulars in a form compatible with the annual return to

the Chief Secretary (see 13 below) :-

the date of the complaint and its acknowledgement;

the - nature of the complaint;

the actions taken in respect of the complaint;

whether the complaint was upheld, partially upheld or rejected;

whether any change in procedures was considered necessary arising

from consideration of the complaint;

(6) the rank of the most senior officer involved in dealing with the

complaint.

It would be sensible for just the basic data sufficient for the annual

return to be kept in the register itself with supporting documentation

kept in appropriate secure files.

12. Access to the Register must be afforded to :-

(i) the Minister or Chairman and any Member of the Department or

Board;

(ii) any Member of Tynwald with the authority of the Minister or

Chairman (in the case of an Office, authority will be vested in

the appropriate Chief Officer);

(iii) in relation to any particular entry in the Register, any officer

referred to in the complaint;

(iv) the Chief Secretary or his nominee.

Annual Return to the Chief Secretary

13. It is a requirement from the Tynwald Resolution of November, 1989,

that the Chief Secretary shall make an annual report based on the

central records maintained. Accordingly, all Departments will be

required to make a return to Government Office and the format of the return proposed is shown in Appendix 2. This return will cover the

year ended at the 31st December and should be submitted to Government

Office by the following 31st January.

14. The occasion of the annual return should be taken to review the

Departmental complaints register to see if any lessons can be learned.

Note

Government is made up of Departments, Boards and Offices not forming

parts of larger Departments. For the sake of simplicity, the

foregoing guidelines refer only to Departments. They should,

however, be applied with appropriate modifications to Boards and to

Offices. In the case of an Office where there is no immediate

political supervision, responsibility vests with the Chief Officer.

APPENDIX 1

WHAT CONSTITUTES A COMPLAINT?

I. This question is central to the establishment of a uniform complaints

procedure as the word "complaint" can be used to describe a very wide

range of customer representations. It is important to avoid too

close a definition. Any problem or concern should be regarded as a

potential complaint. For the purpose of this exercise, it is

proposed that complaints be divided between those that should be

recorded and those that should not :-

Complaints which do not warrant recordal in the Central Register kept by the Department. Board or Office

(1). A complaint about a matter outside the competence of the

Department, Board or Office;

(2) A complaint where it is obvious that there is no prima facie case

to answer or that the complaint is frivolous, malicious, trivial

or vexatious;

(3) A complaint where the complainant is not involved in the matter

forming the subject of the complaint or has no direct interest

therein:

(4) A complaint which is made more than twelve months after the

action has been taken which has led to the complaint being made.

(5) A complaint which is successfuly dealt with on the spot.

(6) A complaint about a failure of service which is rectified within

a reasonable timescale (e.g. failure of water or electricity

supply);

A complaint solely regarding the attitude/behaviour of a member

of staff (this is the subject of normal disciplinary enquiry);

A complaint solely against a decision which is the subject of

an independent appeal mechanism or where the mechanisms available

for further review and appeal have not beer exhausted;

(9) A complaint solely concerning the application of professional

judgement.

Complaints which warrant being in the Central Register

These would include the following which should be submitted in writing

by the aggrieved party or by their authorised agent (which might

include a Member of Tynwald) :-

(Cl) A complaint concerning a decision by the Department, Board or

Office where there is no independent appeal mechanism;

(C2) A complaint concerning any failure by a Department, Board or

Office to make a decision;

(C3) A complaint concerning a failure of service which is not

corrected or is not corrected within a reasonable time-scale;

(C4) A complaint concerning the failure of administrative arrangements

or an over-restrictive or narrow interpretation of such

arrangements;

(C5) A complaint concerning the application of inappropriate or unfair

remedies;

(C6) A complaint concerning breach of confidentiality;

(C7) Any other substantial complaint not falling within any of the

foregoing definitions.

6. Where, in any particular case, there is a doubt about whether the

complaint should be recorded, it should be recorded. APPENDIX 2

COMPLAINTS, PROCEDURE

ANNUAL RETURN TO CHIEF SECRETARY FOR YEAR ENDED 31112/?

1. Summary of Complaints Processed

Number of complaints outstanding at beginning of the year

Plus Number of complaints made during the year

Less Number of complaints outstanding at end of the year

Number of complaints disposed of during the year

2. Analysis of Complaints Outstanding at Year End

Complaints outstanding for less than 1 month

Complaints outstanding for more than 1 month

Complaints outstanding for more than 3 months

Complaints outstanding for more than 6 months

Complaints outstanding for more than 12 months

Total

3. Analysis of Complaints Disposed of During the Year (See table attached)

The categories of complaint set out in the table are as follows :-

(CI) A complaint concerning a decision by the Department, Board or

Office where there is no independent appeal mechanism;

(C2) A complaint concerning any failure by a Department, Board or

Office to make a decision;

(C3) A complaint concerning a failure of service which is not

corrected or is not corrected within a reasonable time-scale;

(C4) A complaint concerning the failure of administrative arrangements

or an over-restrictive or narrow interpretation of such

arrangements; (C5) A complaint concerning the application of inappropriate or unfair

remedies;

(C6) A complaint concerning breach of confidentiality;

(t7) Any other substantial complaint not falling within any of the

foregoing definitions.

4. For each case where a complaint revealed inadequate administrative procedures, indicate the action taken to rectify the position :- ANALYSIS OF COMPLAINTS DISPOSED OF DURING THE YEAR

CATEGORIES OF COMPLAINT

Cl C2 C3 C4 C5 C6 C7 Tot

Recorded Written Complaints

Resolved at the level of -

(1)Line Manager

(2)Chief Officer

(3)Minister/ Chairman

Total

Unresolved Complaints :-

Number of Complaints where complainant remained dissatisfied :-

Number of Complaints which revealed inadequate administrative provisions :-

Appendix 3

Judgment in CLA 1993/199 Pilling v DLGE & Anor,

Ice3/15:s 7N THE HIGH COLT OF CFUSTICE OF THE ISLE OF NLN COMMON LAW DIVISION

E.etween:

SAP I.. JILL PILLING Plaintiff anf;

TEE DEPARTMENT OF 7.00R GOVERNMENT AND THE ENVIRONMENT First Defendant and BRIAN SINDEN Second Defendant

Reasons for Judgment delivered, by His Honour THE DEEMSTER CORRIN at Douglas the 3rd day of October 1996.

Plaintiff's claim against tea D..f=nda-11- t damaces for necligence and breach of statutory duty and Mc E=ainst the Second Defendant damaces for necligence and sance in mlblic office. This claim relates to c=,.- taro _anninc =-..-7 c=tions submitted by th., Plaintiff in resoect the orcoosed her 1 =nd at Ea.7 7 1-,- 7 =ck 4 n :;'arLsh of Arbory.

P1 = 4 ntiff Mrs Pillinc, i.C. the owner o'F. =t Zallablack r=o-es=nt=, on the the =r==

bundle of documents yf th. rF.d !-.. hereon. This 'and a CroT3:-..-v-':.=-L...er and contains a tota: a_ out 1014 acres of land. It was Mrs Pilling's intention all of larc Fc7- purncses.

The development cf land in the Island is cot erned :S7 12 Planninc Scheme :•:evelcoment Plan) O_-:er which came into on is: Al.cust that year. That Sthe7.e, tocether with the Island Plan, set- the orovisonc 1-.7 :1C. Island includ'nc :he cf areas shswn cr. the ..71an for =1" r.c: zoned rcnc,.in as "white areas").

The Lan,' ty EhCW7. the :slanzi a wnite area and ^^▪ 1' a'ocated development. Nevertheless, in -.S..zi= submieted a p7 annina application for the development cf her land for residential purposes. That application was unsuccessful.

During 1990 the Department encaced in a consultative process culminating in the holding Of a Public Tnaui-ey with a view to the making of a new Develocment Order for the South of the Island, which included the land owned by Mrs Pillinc. However, after considerinc the report of the pu lid Inquiry the Department decided not to proceed to the rnakinc cf a new Development Order ----ether to the issue of a Planning Circular pursuant to Article 11.2a(vi) of the 1982 Order. That Circular 7/SI was issued in September 1991. The purpose of the Circular was to give general cuidance as to the Department's policy with regard to residential development in the Scuth of the Island. A Planning Circular does not have the status of a Planning Order. The latter must be ratified by Tynwald and thus . •- attains statutory authority. former is issued bv the Departmene as a Planning policy statement and in strice terms neither replaces ncr amends the 1952 Order.

M- Savage, the former C'n!ef Executive cf One epartmerlt, in his affidavit sworn on the 9th February 1953 in paracraphs 5, 6 and 7 explained the reasoning behind the Deoartment's decision to issue Circulars thaw mak'nc 0-ede,-s for approval }'_i Ir particular in paragraph 7 Mr Savage set out his or.inion as to the status of Planning Circulars as foliews:-

"7. Thus, the Sector Plans ie-'e,"nc the 7e'ene7 Stratecic Plan Southern Se to(v) which was issued as :2lanninc Circular 7/91 , ceneral terms, as e.- an extra layer of inee=retaeicn for the 1982 •▪ -r- Whilst the Sector Plans the basic

policies, it was intended thee they would be a

eccane the 9.'1'2 Order be in line with then eurren: tIn 4 nk4nc..1,

Mr Savaa., cause d 'c7.ue- in the press e: -

"The plan attached to the Planninc Circula,-, which will supersede the provisions of the 1952 Development Plan, sets out the land use of policies considered, after consultation with the Rushen, Arbory, Malew and. Santcn Parish Commissioners and the Public Inquiry held on 29th October 1990 most appropriate to meet this aim."

Thus the general public were told that the new Southern Sector Plan and Circular superseded the 1962 Order and Plan. Mr Savage was told by the Attorney General that his notice was misleading and incorrect and that a further public notice should be issued to retract it. However, he never did make any public pronouncement to correct the misleading public statement.

In the Substituted Statement of Case, the case against the Department is based upon negligence and breach of statutory duty and_ as acainst Mr Sinden negligence and the tort of misfeasance in public office.

As all these allegations arise out of Mr= Pillincrs planning applications between 1958 and 1553 it is necessary for the Court to consider in some detail the facts relatino tc such applications and the particiPation of Mr Sinden therein. Fortunately the crater part of such facts cannot be disputed they appear amoncst plethora of documentary evidence contained in t e Court bundles.

The applications in chronological order are as follows:- Planninc Ar,plicaon 1988/654 Application 1"0/.11E9

. T-T-nr.n,- Application 1932/C12 4. Planninc Application 1593/S: was a further 1 995 (Pl=nnnc

cinde7 when he G t ience that he helt a d-:7-=rer-; in Civil En:I.-ineerinc: whf_c..n laps.ad. sai6 tha:

he was a Technical Officer a departmental post wit.h olanning qualifications. His official title wa.. "Central Development Officer for Douclas and South of Island". It is .r.elvant to mention that Mr Sinden's hcme addr,-ss at 2€ Ballacriy Park, Colby is within the same village area as situated Mrs Pilling's land. It is also relevant to record that in respect of Planning Applications 1990/4169, 1952/013 and 1993/63 the Local Authority, Arbory Parish Commissioners, were objectors at all stages of the respective applications and that as and from the 1st May 1992 Mr Sinden's wife was an ejected member of that Board of Commissioners.

It is with that background that I examined the part- played by Mr Sinden in the several Planning Applications. There is really no complaint about the 1988 Application, save to record that Mr Sinden was oresent at the Planninc Review and made written submissions to the inspector for the purposes of . the -a-oo4eal.hearing. Mrs Pillinc said- in evidence that she had no complaint about Mr Sinden's 4 nvolvement at that stage.

A consultative Draft Plan for the South of the Island was published by the Department in May 1990. This Draftwas aailablevscrutiny to the public for 4 weeks and Mrs Pillinc amonc others made comments cn Plan. The fin=e_ l document was then prepared and be,-- amc, the Written Sta temen t The Written Statement was available for a minimum of 2 weeks prior tc the Public Incuiry. Furth,..rmo-..- all lutereS tee parties were civen the ocoortunity of submitting evidence at the Public Inquiry which was held on the 29th October 1; 90

711 fact there was only one objector to the inclusion of -Irs for residential development, such objector 1"-t"-cle-7 to c: =cornover surface 'water The result cf Public Inquiry and publoat$on cc the mc5.,--: Statement was somewhat delayed. However, Mrs Pillinc was told that i t was not in:ended to it for Tynwald aPproval but rather it would be a c: the p-inning policy. She order to the she was

ar . vsed by Mr another .0, ann, nc to loc.-- planninc application for accroval principlE. This she did, such Application bearinc the serial number

1990/4169. Mr Sinden was the planninc officer who service^ that application. It was refused on the grounds that the land was not zoned for development on the Island Plan cf 1582 and that to grant it would preempt the findings of the Public Incuiry. Immediately thereafter Mrs Pilling said in Pvid,-nce that she met Mr Savage and expressed concern that Mr Sinden, as a Colby resident, should present to Planning Committee the Application for development within his own vinare. At this meeting Mr Savage informed Mrs villinc that the final written statement cf the Southern

Sect or would be the official policy cf his Department as from the end of June 1991 and that he would arrange for meeting with Mr Vannan to discuss the proposed development which was to be available for 'residential use. As a result M-s Pilling wrote to the secretary of the Planning Committee on he 30th May ..requestina a hearina 'cf Appi 4 cat4 on 1990/4 669. On llth Jun. 735 Mrs Pill 4 nc, w4 H others, met Mr Watson, Chief z7 ar-t-inc Officer, who 1 informed tl.,em as to the area of was to .- =- appropriated for residential use, the Plan to be submit- ted for the review hearing being amended accordingly. Mr Watscn sent letter on 17th June 1 997 as a result of meatier a (pace 1E) which makes it clear tha,- Mrs "lr...c was seekina a review hearing of her Application '990/4ig9 and had r'.'scussed ,.-rormation" Mr Watson. end Mr Watson's letter was helpful to Mrs Pillina. Cn 24th June the amended plan was submitoed for the no ea i• of Application 1990/4169. there way m„-= C the pro:74 -zed ?' anr.= so recuested that her review hearina be In fact the p7 ,--nnt7g Crc-l=r 7/9' F.ptembe,.-

wAa. c.s accompanied by a plan extent of land aTpra,priated whc'= -f Mr.E des ftee

Pil'no me: Var‘nan to

che =si on of a further revised tf]. h-arnc of Application 1990/41E9 which would show the actual area designated for residential use in Circular 7/97 . Mrs Pilling said that Mr Vannan advised her to arrange a meetinc with Mr Killip the then secretary to the Planning Committee. On the 15th October 1991 Mrs Pillinc met with Mr Killip, and o-eented him with an amended plan for the Review hearinc cf Planninc Application 1990/4169. Followinc the meeting Mc Killip wrote a letter dated 22nd October 1991 which I set out in full:-

"22 October 1991

Dear Mrs Pilling,

Re: Planning Application 90/4169

Consecuent to your visit to the office on October 15th, 7 have now had . an opportunity to discuss the points you raised T.,44 t..71. ME, with the Department' s Chief Executive end with the 7lann4 na Officer for the Southern Area. has been succested by these officers that it would be inappropriate, at this late stace, to consider, within your imnerd,rc plannina review, a further revision to your submittedi- apolication.

7 note that the plan you submitted last_ week was in=tended at the situation, whereby you: application superimposed on the area for development to in the Scethern Sector Plan. 7 would as you to note however that, as v...., are seeking an approval in principle lv, at tn,s staae, the Southern Sector Plan identifies areas which arm deemed 7..4:17„rorrazn for development, and C F th.=- extent of the plans that you submit ..ne area defined Sector constant. this C=e- can be recarded as an acnowledgm=n,- hat areas al;ra^y now ft-r d•=v---1-cm-nt.

thor. case gnat th= — - cour=s tna: reTa: is tC be addressed, within Your planninc review, is the matter pertaining to sewerage and drainage, which was the other reason for your initial refusal. J. can confirm that, as cf the date of this letter, the acknowledcment from the D.H.P.P. that you indicated this Department would receive, pror to the reviews has not vet been delivered to us.

Yours sincerely,

2. KUlip --,:e-retary, Planning Committee."

vollowinc receipt of that letter Mrs Pilling spoke to Mr Mrs Pilling said in evidence that Mr Kiiii-0 confirmed to her that the Circular 7/91 was valid and told there was no need to proaress application for Iannina approval in principle because the Circular was eu rc:'-icrit in itself. Mrs Pilling said she thought the

had superseded the Development Plan. She was nct of the correspondence between the Attorney General and v- Savage on the subject of the legal status of the Plannnc She believed that Mr K'lliP's letter confirmed her land was now "deemed to now be appropriate for Ceelcoment" However when Mr Killio gave evidence h,=, was adamant that he had not advised Mrs Filling in those terms. Xr said that he would not tell anyone to proceed or orcce.,c-: wit h a planning aop.Licauion but such a C-cicion rested with the appl'cant. He said in any event planninc review application submitted 1-v Mr= had been made before he was appointed -1-.= -1-linc cor.=:ary. L said that- . he would not mare such a statement . He confirmed in rig evidence that the effect of the Planning Ci,--u7 ar not amount the crantinc of canning approval 1- 't was simoly a policy statement as to which land would be suitable for development. Mr K added that he not civ=n the 'm---==- on old c aporcv.-'.

is cdvious to me believed .r_hai: :he issue cf Circular 7/91 cave her tne ccmplet- assurance of planninc approval in principle for 1-11- _a nd _ in fa4 rnes= the notice inserted in the newspaper by Mr Savace would certainly cive that impression to members cf the public. It is really from that point forward that the controversy in this case emerges and I have to consider thP conduct of Mrs Pilling and also that of Mr Sinden. What Mrs Pilling did in fact was to withdraw the application for the Planning Review on the assumption there was no need to obtain approval in principle. Mrs Pilling then proceeded to discuss the sale of her land and in early 1992 submitted a detailed Planninc Application 1992/013.

I find it difficult to understand why Mrs Pilling and her advisers should believe that a planning application in principle could or should be bypassed. It seems to me that the sensible approach would have been for her to have proceeded with the outstandinc Planninc Review for which, Circular 7/91 mould have - .provided nor with •strona ammunititon in favour of the grant of such permission.

In any evonl- it was Mr Sinden who serviced the Application to the Planning Committee and his hand written

notes and recommendations appear at _pac- _.._ -7,G.-. Mrs Pilling Lice= Mr Sinden's notes to support her case that he was guilty of misfeasance as a public officer. main carts of her complaint are:-

1. RP informed the Planning Committee that "_, part of the site is designated fo,- devP1,-- pmn: cn the 1562 development plan. IndeP,4 , the tar: of Cronk-y-Thatcher is designated _ a'thouch he does add that all of the site ts within the 4 n P7 annirc 7 / 3: for re.-='-d=n,--'-= 7 use.

In ca-acraph 12 (cchclustons) wrt:- BThr- will, : a e, be =rgum-n: ='cut

Sector 17,1 a-1, on this 7a7:7.e.r, conflicts with the Government plan. However, since the Minister has issued it as a Planninc Circular, it presumably constitutes Department policy. i can however, understand the frustration of those who objected durinc the consultative period".

3. In paracraph 1 5 he writes "it is regrettable that this application is not in principle (as advised by myself)".

4 His summary reads as follows:- "A. I personally doubt the validitv of circular 7/91 in so far as it conflicts with the 1982 Order under which it was issued. This is surely common sense. However the Planning Committee should have ,iecard the Appeal decision from 1989 the Minister did not dissent from the inspector's conclusions. C. Therefore,..: if the drainage arrangements are now satisfactory, residential use of the land which was the subject of 28/694 could now be approved. . However, since the application is for a much larcer area, and is in detail (and in some respects unsatisfactory recommend refuse".

it was said in evidence that t':— Planning Offic--'= --_. recort and recommendations are read 'by ,. .:e Plarnin- Committee. The Planninc- Officer is cresent when the acclication is considered. Obviously his ann. r=.-omm,-ndations will generally beaccepted by the Plann i ng Committee and it is not surprising this case that acclication 1992/013 by notice dated 21st May 1992 ..47-= refused.

However, alt such it was an c.rmcn in detail part at .7./ 7.e =eacis:-

"whilst the develcoment cf :he

land immediately No-rtn C. was, in effect, once ..=r=in7-ce satisfactory, the decisicn in respect cf PA ES/o6S4, and wh- ct tne whc- cf the site ie= with-in the ar. identified in of Planninc Circular 7/Si as heinc appropriate or residential use, the development cf the hicher, Northern most part of the site would nrejudice any Planning Study of the broader area, and would in itself make an unwarranted and undesirable visual impact".

Although it is obvious that Mrs Pilling auite properly took control of her planning applications, she did have the advice and support of her advocate and her architects, the fatter being Messrs Kellet and Robinson. Followinc the refusal the architects wrote to the secretary of I-"rt= planning Committee on 11th June 1992. This letter includes a statement that the architects had attended meetincs "with Planning Officers, Mr B. Vannan and Mr 3. Sinden for the nurposes of discussing the reasons of refusal and as to how best to address each aspect of the layout consider unsatisfactory 1..tter.00ntinues "the meetincs were most constructive and informative and we are obl4 ced fc= inPut and he advice given by both officers as a of which we have now incorncrated the followinc amenrlmnts for consideration of the review hearing".

Mr Sinden took no part ylw the review Deoartment being represented ov Mr Vannan who suoncrted -.polication. The hearing took place on 29th July 1992. Mrs pilling was present and she was remresented by Mr Shimm4n, advocate and by her architect, Mr Robinson. A larce number of objectors were present including members of the Arbon,- Parish Commissioners (‘-x-lu,::nc Mrs S'nden). spokesman was a Mr WI-ay who said, "Planninc Circular 7/91 not- haopy with this Circular. We:.; ground. Queried status with AG t'ne. SUZ=.7.75m= 9B2 Development Plan, AG says -this does not supe sede thi ,= as yet would not object 4 does not co abcve 3c

tie • r crellin, ad-locate, Gvvv=v-v. - nine 4nr"v4 tual objectors ;-- nd the matter up in "a considerable of well reasoned 7 els: add that it iz orenlatl:re no

a-ea. No demand for housnc. Falling populatio -_:ven- in five years time could be ambitious. Pcsiton c' today must be what decision is made cn. Recret no news from Ed cation Department. Great disquiet re roads and drainace. Foul

wcter full tc capacity - not new foul ma in - jurt re-lirinc it. Plans now submitted open-ended. I would say this is only phase 1 - what about 2 and 3. We don't want this sort of development - a ciant housing estate".

Ti orb followed an exchance between Mr Vannan and Mr Wray. Mr Vannan said "Sector Plans deal with rural a eas - not beer. tc Tynwald yet - they do represent the policy of the D.O.L.G.E." Mr Wray said "we would contest this when it goes to Tynwald". It will be obvious from these extracts that there was very strong opposition to.mrs application both from the local authority and from indiv'dual ottectors who were represented by an advocate. could not therefore have been any creat surprise to Mrs pill 4 nc.. and her advisers.toJlear that the Application had

G=C11.11 oeen The crounds for refusal were exactly the same as those set out in part 1 of the grounds :cr 1-e'usal of the original Application and which are set out above.

: have s e t this out n some detail to that whatever M- Sinden's views to the Planninc Comm at firs: stance, he played ro part at the review hearinc and seems to me that the Panne nc Committee was by th e amount of local opposition headed by it is also to note that Mr Wray cf Planning Circular 7/91 and had status with the Attorney General.

1-- That leads me on to the c'=nring arced 7_ cr 5.2/C'13 This W=G lodged on the 22nd Seotemb.=r 1952 and

at r.S. It 7,./2=7 s:.cnP.4 by Mrs P'llincs

: was accompenied by a wrtt-n Pillino in which she a sse rted she Court) that she a ^ _off advised by Planninc Depart7..ent

the ,andi Usace fo- residential purposes had be-n b y Circul ar7/91 and that to pursue the ,=,ev4 -w hearinc wGs not necessary. "On the advice received" she stated "PA 90/416_9 was withdrawn". Mrs Pillina's complaint, however, relates to the preparation of the Anneal to the inspector. I sa id that Mr Vannan had serviced the Review hearing. advice to the Planning Committee to approve the Application was not accepted. According to Mr Sirden's evidence, Mr Vannan briefed him after the Planning Review hearing and asked him to prepare the Planning Committee's case for the Appeal. He sugaested that Mr Watson should be the Planning Officer at the Appeal as he thought that a senior officer should be Present. Mr Watson was in fact the Chief Planninc Of firer at the time. He suggested Mr Watson because Mr Vannan did not share the Planning Committee's views on th.. application. Mr Siaden thereupon drew up the submission to the Inspector - his copy is at p.37 and in it he wrote "the Committee recommends that the application be refused". It was th.=.n typed up.- for Mr. Watson and an exact Copy of Mr Sinden's -Pcort and r.-rommendat4 on by watson under a declaration which stated "ths scalem..nt has been prepared by J. Malcolm Watson B.A. (Hons Arch) Dip.T.P.(Manc) ARIBA MRTPI, Architect and Planning on b...ha'f of the Planning Committee of th... Department of Local Government and the Environment".

Wh-n cuescioned abou't- this Mr Watson said LnaL course he had read and considered the statement be=ore

sicning it. Mrs Piling was sent a copy of that en t prior to th= Appeal hearing and at p.".3S is a copy of a letter she wrote to Mr Savace on 1.*.“:h Cctcber 1952 complainir,- of "several serious omissions which are. prejudi-"Pl to Cy case and could well I.:aye a bes:.-nc on the decision of the independent inspec or". ch-.th-n listed the points of comn7 a:nr.. r.-cnons- letter from Mr c.=vac.--, 4 7 which he stated that he had a copy of he: letter to he P.7 =nnin- Aoireal's Cler:‹ zz.infr- romn:-nts to Xrs . _ _ lino wrote on 21 st October a'zkinr- for r=c:ifc='c-r. of "the num-rouc factual and

:2

omissions pu'zlished therein", and for a rev4 ed on.

Mr savace replied on 23rd October as foilow:_

ur will ask the Planninc Committee if they wish to make any amendments to the Statement of Case provid.=d the Inspector".

Mr Savage then sent a note to Mr Sinden "please find attached for information, a copy of recent correspondence with Mrs Pillinc regardinc their forthcoming Planning Appeal" (p.41a). At To.41a(vii) Mr Sinden has made notes in answer to Mrs Pilling's complaints, but it is not known if these notes were placed before the Inspector. Certainly nc amendment was made to the Planning Committee's statement of case sicned by Mr Watson.

The Appeal was duly heard on Sth November 1992 before Mr Walters the inspector. - Again there was substantial opposition in the form of the Arbcry Parish Commissioners and 18 persons or coumles livinc in the Vir";nty

pi-oposed development. Mrs 01 114 "C complains bitterly that no amendment was made to the Planninc Committee submission but I do not recard her complaint as having any substance. IFiM s Pillinc was so unhappy about the document prepared by Mr Sinden and signed by Mr Watson then the prc=er forum for .._routing and nointing out its inaccuracies and omissions was surely befor- th.. Appeal's InPe-tor w=e re she was legally represented as well as supported by h=1-

The insp.ector's decision was set c-u." at n.“. H=r= he set. out the case for Mrs 11-:;11inc, tine case for Department which is a misnomer =nd is the case for th- Planning Committee, the case for the Arbory Commissioners

for the local resid ents 1-1'= :n the first line cf his conclusions he -

in the mind the viatemen: abcut the status of 7,/91 and zhe ac‹nowledment that 'n al7 0c:=7.on roe r=cident. development "7,e:hers sf71.-,:hat ambivalent", accep- th.L-- its prc' islong should treated with some reservation",

H- then concluded that the Appeal proposal would unduly prejudice the proper planninc of the settlement, and recommended the Appeal be dismissed.

.1- seems clear that.Mr Walters had seen the Attorney General's letter of 17th October 1991 to Mr Savage (p.39a) in which he made it clear that the 1982 Development Plan had not been superseded in any way. He also said in that letter "the policies which the Department must follow are those which are embodied in the 1992 Development Plan, as subsequently amended with Tynwald approval". It is true, as Mrs Pillihc pointed out with some force, that Mr Walters adopted Mr Sinden's expression "perhaps somewhat ambivalent" in his conclusions in relation to the status of Circular 7/91. Be: the Inspectcr'S'rePoirt is by no means the'endof Mrs yillinc's criticisms nor indeed of Mr Sinden's n the process.

What hapnened in December 1992 was also the subject of scrutiny and suspicion. Mr Walters forwarded his report and conclusions to the Department and this, along with several other arrived en the 7th December 1 952. mo o decisions were received by Mr Maurice Fargher, deputy Savage, and nis custom was to hand them personally to the Minister so that the latter could cons4 dPr them and then make a final decision. The Minister said that he would usually taKe the reports home and read them. Then late,- rp,-thin about 1 0 days he would meet th,. Chief Executive or h is depu- y who would have the planninc files ava 4 1 a.- would examine the plans and files and then make his final decisic Th, s is exactly what he did in Mrs case. s ECZ mr 2rown concurred with the _n='.¢-cr's report others cases be'-re h4 m that day, " accept report n Pillinc's = ch ,, ngs the InsPector's cranti ; - the lower part cf Mrs Pillinc's land (about •i;-

Xr I.7.rown, in his evid-nte, was adamani- on'y Mr

Far=her was party tc hi= , ec 4,- n. He saO "M Faro'ner a'' d 7 discuss a6 the matter ano the decision made 'zy myself. He added "I didn't seek advice or ccntact Mr Sinden and made sure he was not involved. There had been criticism of his involvement". The procedure, said Mr Srown, was that he would signify his decision and it would then be passed cn to the Planninc Office to formulate the statutory notice. In this case, Mr Brown said, Mr Fargher called Mr Sinden down and he was told of the Minister's decision and asked to formulate the Planning Notice (subject to Mr Brown's direct approval). Later Mr Brown saw Mr Sinden's draft conditions which had been typed by the secretary and Mr Brown amended (p.4.5a). There was considerable acitation about this and

I can well understand Mrs Pilling 's concern when she heard of Mr Sinden's involvement with the Minister. She formed the impression that Mr Sinden's hand was also on the Minister's decision. Mrs Pillinc's case in relation to this is set cut in paragraphs 33 to 38 of the Substituted Statement of. Case.-: One .cf. the most susoicious aspects- of the Minister's involvement wth Mr Sinden at this time was

that Mr Sinden's Draft Conditions of Atcrova7 been 7.1 2.92. The 7 is crossed out and a 12 substituted. As the Minister's decision was not made u.7117.47 after the 7th December it is odd that Mr Sinden should have dated it the 7th. The,-- is also the discrepancy in the date of Mr 7,,,a+.1 C in which the decision was e-onv,=v=.d to the uart'es. The is oatea on Cre F4 -=- 14th December on = second cage and on the third pace 14th December has been a7 tered to 1Sth December.

Both Erown and -!.r Fars-her :ti en thv gave ora1 evidence 'der , abo".!- 1 =rters. As a result of seeing and Mr rcwn and P..17.- Fa ,--7h=.r : am satsff.=.& that the e - actions,- wl-,‹t tO q1,==" and arurshnz'on fao: entirtly have no c:cz'nt and:: 7-- cth Mr =rcwn an,4_ Fargner exT...anatione of :heir cond...:c: - CL', and accept aocoun!-

reT,eat alsc fact that _ f-hanceC the favour cf

On the other hand, however ethical their behaviour may have been, it was also both naive and lacking in judgment bearing in mind that the Minister admitted in his evidence he had been informed of criticism of Mr S4 nden's in repeat the time worn but purposeful saving of Lord Hewart C.J. in R. v Sussex Justices ex, carte McCarthy [19241 IKE 256 "it is not merely of some importance, but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done". The fact that Mr Sinden was party to the Minister's decision in drawing up the planning conditions must have riven rise to the likelihood of some bias against the apPlicant Mrs Pilling. Even if he was impartial as could be, nevertheless if richt minded persons would think that in the circumstances 1- 1",=.rm was a real likelihood of bias on his Part, then he should not have peen involved. Justice must be rooted in confidence. cannot believe thaw Mrs p4114mc could have held any confidence in the Minister's decision when she discovel-=,4 Mr Sindn's involvement.

The same principles apply to his participation Planning ApPlication 1352/013 from its inception. 7: was := ,flc: in An'-i 7 1 992. Prior to that Mr Saden had associated with Planning Application 1985/69.1 and 1990/41 69. Furthermore Mrs Pillino said in evidence that an tie 1 5th 7991 she smoke to Mr Savace and exmressed her concern rhat Mr Sinden that a local resident in Colby should =resent the case to the tee che said she roilowed this up on_ lEtn May 1 9.92 in the of Mr and Mr Savace which time Mrs been =1=,-, tad L:oca chc. mace a further commlaint to Mr =---,-;=o =1:h j,- ne ?.:rs Pillinc's concern s L=cre.a. Mr said that the re Was no written an,' Mr 3_- den himself •:_ ; that no cc ,o }3_..... had -.n r=spz.c7.,

the point. mrs Pilling was cuite properly ask'nc m- Sinden be taken off her Planning Applications - it was not a matter of complaint but rather common sense and common think it is a matter of much recrst tna!t Mr Savage, as Chief Executive, failed to understand Mrs Pilling's concerns which in my view were completely justified. Had Mr Savage stepped in and appointed another officer then these proceedings would not haVe arisen. I hope that this case will stand as a reminder to both the Department of Local Government and to other Government D=cartments and indeed Local Authorities that in a small juisdiction all of us, and include the judiciary, should ne at all times vigilant to the dangers inherent in participating in administrative processes where members of the public might consider the likelihood that cecause of a oa,-ricular interest in the subject matter or our connection with one of the parties our minds might be removed from what ic right, just, fair or accords with good sense. There is no doubt in my .mind:, havinc.considered the evidence in this case that had Mrs Pilling presented a Petition of Dcleance this Court in 1992 't is almost certain that s=e :would have been successful in having the decision of the Plannin; Committee set aside and application sent to '-ribunal serviced by a Planning Officer other 1- h=n Mr Sinden. However, this is not a Petition of Doleance cut an action for damages in r=-74 -=ca, breach of statutory duty and misfeasance in - office. cons iderations arise and it is useful that im 1 5E-6 both in England and in the Island the tort of misfeasance ov a Public Officer has been corts -=-=d in some detail in decisions -

in the f'-rst place my own, J,..:dsTment of 31st January 193.E. matter of the Petition of T.P. Winnell was ap-omoved Sta4:if o; Govarnm-n!- D'vsich. on 1 0th May 7 .C CI:: on the same day, iGth May 11.95E:, Clarke J. delivered jt,:,io:nan: ,... r.ne Queens Bench r4.';.-"- :- L_-' -, ___= case c- .-..=- .F.ivers _ Distric_ Ccuncia v 2.ank cf 7--7--t' ('"g 3 2L,1 L.R fcllow tne lecal 1,__-_.,__.___ in :Toth those cases when ar..7:7 y4,nc the facts of r.:.e-. 7;resen,- action.

T1--e Three Rivers case was one (not unlike the Manx case of Davis v Radcliffe) where depositors with a collapsed bank (BCCI) broucht an action against the Bank of Encland for damages, allecinc that the Bank was liable for misfeasance in public office in the performance of its public duty tc supervise banking operations in the United Kingdom in that it had either wrongly granted a licence to ECCI or had wrongfully failed to rescind BCCI's licence.

Clarke J. at page 582 arrived at the following conclusions on the tort of misfeasance in public office:-

"In these circumstances, unless bound by authority to reach a different conclusion, and subject to the question whether the plaintiff must prove the infringement of a legal right, my conclusions are these. I set them out by adcctinc in part, but otherwise acaptng the propositions set out in the plaintiffs suamissions summarised a- ...._ outset. :.7..u1,7-;r- (1) The OZ misfeasance in ofcio is

concerned w ith a deliberate and dishonest wrongful muse of the powers given to a public o fficer. It is

tarts base-; on an intention to injure, althcuen, as sugcested the majority in enc, has some similarities to tnm. (2) Malice, in the sense of an intention to injure a terson in . _lass the a memher, and knowl e dge by the -,F;'e-.r boh that he to, dc the act oF and that th., act will pro.caziv injure the t'ass whi:h - ls a member ar- alternatir the ac- know7 ce is to act in a suff.oient (se- Mencel (15E; SF :1..LJR 527 a: EE4 7er ==ane zhe •"' that the ne 1-- c to co act

:hat :he act was -;n:awf'.7.1

circumstances in which he believes suspects that the act is beyond his powers, .1, - 4- he ascertain_ whether or not that is so, or fails to take 11ch steps as would be taken by an honest and reasonable man to ascertain the true position. (4)For the purpose of the recuirement that th,., officer knows that his act will probably injure the plaintiff or a person in a class of which the plaintiff is a member it is sufficient if the officer has actual knowledge that his act will probably damage the plaintiff or such a person cr, in circumstances ;-." which he believes or suspects that his act will probably damage the plaintiff or such a person, ; he does not ascertain whether cr not that is so, or he fails to make such inert:4 -i-.: as an honest reasonable man would make as to the probability of such damace. (5)if the states of mind in (4) and (5) do not amount to actual knowledce, they amounT recklessness wH'ch suprorz second .,1 -;m",- of :he tort.

in the rs--c,cent action I conclude that it is unn ,--csar-1 to cc beyond the first -ropositicn above. 7 am Por.i wjth th- =':-rnatv- of malice or knowce, _ether with the cuesticn whethe Mr Sin de:, .11.traalv and dishonestly wrcncfullv 7---us,=-4 his towers as a 7 4-

no doubt, Ac 7 hay.= r-l-adv he'd, that Mr snould have disqualified actinc as ?lanninc the 7=anninc Commit:a- rLation t Planning AccIicaticn the

:net uz..._ was no: b-"nc. see n 'cne. That is a f=:r r=7 a man and dishonestly bot•:,--s 1 base my final

tht f:ou7ren:ary avifente .r:.. Ala_ hf1- ratntr :a anti: wcrk

civil servant by the Second Defendant and its predecessor for over twenty years. Until 31st March 1993 he served as a Planning Assistant or Development Control Officer under Mr Watson and Mr Vannan. Since 1st April 1993 Mr Vannan has been acting Director of Planning and Mr Sinden acted a= his deputy. Mr Watson spoke very well of his ability and integrity. It is a fact also, that every possible hand written note made by Mr Sinden over the planning processes has, quite properly, been produced to the Plaintiffs and to this Court. There has been no attempt to conceal. In fact the reverse is true. In May 1992 when Mr and Mrs Pillinc met Mr Killin, with a view to assisting Mrs Pilling, he told Mr Killlp he did not mind if a cooy of his Report was handed to the Plaintiffs. In paragraph 16 of the Substituted Statement of Case Mrs Pilling pleads as follows:-

"The Dlaintifflc architect Mr Robinson had been 4: discussions with officers of the Department recardn layout and landscaping ---,,, to that Planninc ?to7 ication beinc lodged and there were .--;...,--1...,, discussions following the refusal between ,...--.... DPoartment's staff especially M.==-= Sinden 3nd vannan in May and June 1992. Full and detailed cooperation was shown".

In Court Mr Sinden struck me as a professional

to his work and one who, in his own words h7.-= "endes.-..roured to act honestly, .7.rofessionally and honcura'zly at al times". E. cave the Ccur a :4.'1 1 explanation of tn. s7=t.ments h. made in his sub::..issicn to the D7 a7,-- Committee in Apclication 1992/011 adding that, "7 evervthinc 7 think". That ;5 h=r--"v th p-7'cv dshonest man, where every-Lhnc he wrot. d:wn is now available f-,r 7,1 7 to 7n any hay. come to a firm and thaw "rinden's conduct Fa'Is .Far sh-rt that th-t. =rt misfeasanc-: in offi:e. There is not a hin: dishonest .: anf aLthci.:ch, himself

Reportv_ I fr..d the allecation of misfeasance acai,lt Mr cinden not proved. In addition the claim of neglicence acainst MT Sinden also fails. The particularc of alleged neclicence are set out in paracraph 43 of the Substituted Statement of Case paragraphs (1) to (9). It seems to me that most of these allegations relate to the claim for misfeasance, although paracraph (4) (5) and (6) could be said to be allecations of necligence. Paragraph (4) alleges that Mr Sinden "deliberately and/or negligently misled the Planning Committee in the presentation of the documents" Paragraph (5) alleges that Mr Sinden failed to inform the Planning Committee that the detailed layout submitted by the Plaintiff had been approved by the Plannina Denartments own Architect prior to submission and paragraph (6) says that Mr Sinden misrepresented the effect of Circular 7/91 both to the Planning Committee and the independent Inspector. If these are truly allegations of negligence which I doubt, I find them not proved. The result is :hat the Plaintiff's claim acainst the Second Defendant is dismissed.

Finaily w urn to the_ allecations of negligence and breach of statutory cuty acainst the Derartment. Miss Byrne in her final address to the Court did not press the claim statutory duty but rather relied uron claim in negligence.

The of acainst are set cut in paracraoh 42 Substituted c. Case where the cleadinc that the NC= in breach of qt=t-utory =here ar=-. wh4 ch can ce ==mar2 =ed this way. Th=y amcunt to an allecat4 cz =cra'nt !- he cf -=mcve Sinden fr:m 4 n the r.,1-cc.-cs 4 nc c.; the Planning Azclicaticr„ jail _?"-c to ensure ;..-nd ',.;atson carriec cut :he :ecartment's o'=-nninc toicis and :he

statements '-= fl:nc:Lzns in the

consideration of planninc applications. In my view the claim in negligence is a non starter by reason of the absence of any proof of the infliction of damage on the Pla 4 nt 4 ff. It may well.be that the Department owes a dutv of care to aPplicants for planninc approvals to ensure that the applications are processed within correct procedures and by competent officers. I so held that to be the case in Harvey v DOLGE [19951. I make no judgment as to whether the Department was in breach of that duty in this case. Suffice it to say that in order to establish negligence the infliction of damage is an essential ingredient. There is no proof cf damage here. In paragraph 59 of the Substituted Statement of Case the Plaintiff avers that "fcllcwinc I'rcular 7/91 being published and the October 1991 letter from Mr Killip the balance of probability is that planninc oPrmicsion would have been granted on the upper land as won' a c the lower part of the site. The Plaintiff avers that failure to achieve planning permission was caused by rasons set out herein acains: the First and/or Second :-.e•=ndants". Further on, in paragraph 66 Mrs Pil i ng the value of the plots to obtain planninc What is to harren the amount of El.Em if ;Ianninc permission granted in the future and the sold for E2m?

The situation tc the success or otherwisecf =1 E.. 7.hng ==plic='- ions is by what has ha :coned v-. :-1- 1-inc's case. Wh-n hPr Potion was fir s:

V 19 9r 7 S11.7-7=c:-_2'2 that it be adjourned to enable a -7 ---4 nc mace bea r C in Tri'.nr'- that the Department's :Arm= a%- ailable 'or r===al ,ment. Yrs succesticn and Nr- - - 9/16.49. the mee:inc / the c,,m74!-!- == app oyez her Arolication. Acain there many co:lectors the

•-• 1995. An a:z=.- was r- O'-etttr= aoteal hear n recommended that approval be rfuced and this was accertec by a delegated member of Tynwald on behalf of th=. present Minister Mr Groves. It is perfectly true that Mrs Pillinc has many complaints about the conduct cf the Appeal and the Minister's delegation of authority (see paragraph 66 - 9E. of the Substituted Statement of Case) but I am not aware that she has taken any steps to have the Appeal decision set aside by a Petition cf Doleance. The point is that there can be no certainty of the success of a planninc application even in respect of land which is zoned for residential development. That is no guarantee of the grant of planning permission in principle as was shown in the recent case of Mill Baldwin. In the present case, Mrs Pilling's land was not so zoned. Certainly Circular 7/91 was a statement of policy by the Department sufficient to encourage Mrs Pillinc to make a planning application for residential development but that is as far as it went. The objectors, including the local authority won the battle . Mrs Fillina is not entitled as of richt to planninc permission in principle on her land and tha.rfor- she cannot say that damage has been Elul' .sec upon her. The result is that the claim in negligence

7n uaracraph 1Z of the Substituted Statement of Case Mrs Fillinc that the Denartment is liable to her "for neclic-nt mis-statement under the Hediev Byrne principle". This ar's.-s out of Mr Killip'= 1 =1- !- r cf 22nd October ic,97 (p. 24). The r..7 evant part of the as Fr-llow=:-

would ask you tC as you se--kin an aor:v=' "n - z1 -m —= Sector wh'o". for e.-elospment, --= extent of the .-- - "7- that you submit the area de :.- ri..,.,-:. --.- cons:ant. .- 2 '-.-' e Sector F_a:-.. remains - . --'-----=--m this Sector Plan can be ,-_...... -r -a* ._- c..c as an Aokncw'edoment that .-,. _.., re..s. your most recent plan 12,e Z=CC-1"----:e '7c= - --arc to are alre=,:w ..2.e. -.m.e.- -= t: now

:hterpr=tat:on of th..it e:‹tr=ct 's zhE.: c7. the - that aoclication was mac: ian. I nc approvaL prihcinle, her land was (cn the Southern Sector Plan) Ceemec to be appropriate for development. In my vimwthat was a correct statement, not a mis-statement. It was simply a confirmation cf Circular 7/91 that Mrs Pill;nurc land was now suitable for residential development. It certainly implied a favourable decision cn her Planning Review hearing, no more than that. Unfortunately Mrs Pilling chose to abandon the Planning Review hearing and re-submitted an application for approval in detail. I accept Mr Killim's evidence that he did not advise Mrs Pilling not to proceed with her application for approval in principle. As he correctly stated in evidence, that was her decision cr the decision cf her advisers. I therefore hold the First Defendant not liable for negligent mis-statement.

For the reasons delivered in this judgment the Plaintiff's claim against both the First Defendant and the Second Defendant will be dismissed. Appendix 4

Notes of oral judgment in CLA 1997/296 Pilling v DLGE

PILLING

v.

DEPARTMENT OF LOCAL GOVERNMENT AND THE ENVIRONMENT

NOTE OF JUDGMENT

1 This is a Notice of Motion brought by the Defendant in this action CLA 1997/296

asking for an Order that all further proceedings in this action be stayed or that the

action be dismissed [set out the wording of the Notice of Motion].

2 I have read an Affidavit sworn by Paul David Morris dated the 5th February 1998 in

support of the motion. Mr Morris is the Advocate who has presented arguments

before me today.

3 The motion is opposed by Mr Moroney who represents the Plaintiff Mrs Pilling. I

have read four Affidavits sworn and filed by him. These are dated the 2nd February

1998, the 9th March 1998, the 10th March 1998 and the 30th April 1998.

4 The background to this matter is important and I am debted to His Honour Deemster

Corrin for the way in which he sets out with clarity the background and defines the

1 issues in the. action CLA 1993/199 when he gave iudgmeni in that matter or the 3re

October 1996.

5 In that action Mrs Pilling sought damages for negligence and/or breach of statutory

duty against the First Defendant, the Department (the Defendants in this action) and

damages for negligence and misfeasance in public office against the Second

Defendant, a Brian Sinden, who was a technical officer employed by the First

Defendant. Mr Sinden is not a party to the proceedings under consideration.

6 The substituted Statement of Case in CLA 1993/199 is a long and complicated

document which is not always easy to understand. At page 21 of his judgment His

Honour Deemster Corrin summarises the claim against the Department in this way

[set out from the word "finally" to the end of the summary on page 221.

7 Pausing there, it is important to note that at the heart of this case was the allegation

that the Department failed to respond to complaints that Mr Sinden should be

removed from participation in the processing of the planning application. There were

other allegations of negligence and breach of statutory duty pleaded against the

Department including for instance what appears at the bottom of page 21 of His

Honour Deemster Corrin's judgment. These allegations existed independently of any

part played by Mr Sinden and needed to be adjudicated upon.

8 In his judgment His Honour Deemster Corrin not only found the case against the

Department not proved but also he found that Mr Sinden had not been guilty of

2 negligence or misfeasance in a public officc. The Deemster was however extremely

critical of the Department's failure to heed the complaints made by the Plaintiff Mrs

Pilling to have Mr Sinden removed from a position where he could consider the

planning application. This criticism appears at pages 16 and 17 of his judgment [set

out the criticism].

9 Against that background the Plaintiff bring this claim. The claim reads as follows:-

[Read Statement of Claim].

10 Mr Morris on behalf of the Department puts forward four arguments in support of the

motion. These are:-

(i) Cause of action estoppel;

(ii) Issue estoppel - where the same question arises for determination as

has already been adjudicated upon;

(iii) Issue estoppel in the wider sense as explained by Lord Justice Brown

in Divine Bortey v. Brent, Times May 20th 1998.

"The wider form of issue estoppel had its origins in the judgment of

Sir James Wigram, Vice Chancellor in Henderson v. Henderson:

"Where a given matter becomes the subject of litigation in, and of

adjudication by, a Court of Competent Jurisdiction, the Court requires

3 the parties to that litigation to bring forward their whole case, and will

not (except under special circumstances) permit the same parties to

open the same subject of litigation in respect of matter which might be

brought forwkd as part of the subject in contest, but which was not

brought forward, only because they have from negligence,

inadvertence, or even accident, omitted part of their case.

The plea of res judicata applies except in special cases, not only to

points upon which the Court was actually required by the parties to

form an opinion to pronounce a judgment, but to every point which

properly belonged to the subject of litigation, and which the parties

exercising reasonable diligence, might have brought forward at the

time".

(vi) He quoted from the top of page 862 of volume 16 of Halsbury's Laws

of England a passage which reads "Where a cause of action is held not

to fall within the scope of issue estoppel, it may nonetheless be struck

out as vexatious or frivolous; to relitigate a question which in

substance has already been determined is an abuse of process".

11 Mr Morris relies on all these arguments but concedes that the strength of his

arguments lies in applying the above in the reverse order. Apart from referring me

to the Divine Bortey case and passages in Halsbury, I was referred to Wright v.

4 Bennett 1948 1 All England Reports at page 227. In particular I was referred to page

229 Letter H of Tucker L i's judgment where the following passage appears:-

"There may be some minor detail showing a few variations from the matter

set out in the first action, but, in substance, it is the same story. That being

so, the Court was asked to strike out the Statement of Claim as being

frivolous and vexatious. That means that in effect, it is an abuse of the process

of the Court and the Defendants are, in substance, being called on to meet the

same allegations covering the same ground, and that they find themselves once

more charged with fraud, but fraud which is the basic of a somewhat cause

of action. Counsel for the Plaintiff has brought our attention to all the relevant

authorities and has cited a number of cases most of which the Courts have had

to consider whether or not an action should be stayed owing to the fact that

it was clear that a plea of res judicata, which had been pleaded, was bound to

succeed, or that such a plea if pleaded, would be bound to succeed. In any of

those cases the matter was considered under two heads, namely whether the

action should be stayed or dismissed because a plea of res judicata would

inevitably succeed, or whether the Court would stay the action under its

inherent jurisdiction to prevent a frivolous and vexatious action which would

be oppressive to the Defendants. Those two points are inclined to overlap each

other in these cases. In the present case I express no view whether a plea of

res judicata would inevitably succeed. I agree, if I may say so, with what was

recently said by Somervell L J in Greenhalgh v. Mallard 1947 2 All England

Reports 257:

5 "1 think that on the authorities to which I will refer it would be

accurate to say that res judicata for this purpose is not confined to the

issues which the Court is actually asked to decide, but it covers issues

of facts which are so clearly part of the subject matter of the litigation

and so clearly could have been raised that it would be an abuse of the

process of the Court to allow new proceedings to be started in respect

of them""

12 In substance Mr Morris' submission is that the same matter here is being relitigated.

13 I was also referred to the case of Stephenson v. Garnett 1898 1 QB page 677. In his

judgment Lord Justice Smith said "In my opinion the learned judge at Chambers

ought to have exercised the inherent jurisdiction which he undoubtedly possesses of

staying the action in the ground that it is frivolous and vexatious and an abuse of the

process of the Court. I do not rest my decision upon the ground that the matter is res

judicata, for 1 do not think it can be said that it is. I put my decision on the ground

that the identical question raised in this action was raised before the County Court

judge upon an application for an order to tax the costs of the action in the County

Court, and was heard and determined by him".

14 Mr Moroney on behalf of the Plaintiff argued that the allegation was a specific one

of breach of statutory duty, namely failure to implement the complaints of procedure.

He pointed out by reference to chronology that the Plaintiff was making complaints

in 1992 and it was not until the Minister gave evidence in 1996 for the first time that

6 it was admitted that she was making such complaint. He pointed out how the

complaints procedure made it incumbent upon the Department to initiate and

implement a procedure that logs and investigates complaints and how this was not

done in this case.

15 He referred me to the Barlow Clowes decision on appeal and quoted to me passages

which appear at page 62 of that judgment [I do not have a copy of this decision and

so cannot insert the passage quoted].

16 He reminded me that the remedy sought by the Applicant was a discretionary one and

that the Court should be slow to use its jurisdiction to strike out and should only do

in a plain and obvious case where it was clear and beyond doubt that the issue had

already been litigated.

17 During the course of the argument I asked what cause of action arose from failure to

implement the complaints procedure. I did not receive a satisfactory answer and for

my own part I rather doubt that the Statement of Claim in this case discloses a cause

of action.

18 However I propose to proceed on the basis that there is a viable cause of action.

19 The next point for consideration is whether or not the matter is res judicata. I do not

think that it can be said to be res judicata in the narrow sense of res judicata because

precisely the same cause of action has been litigated between the same parties in a

7 competent Court of Jurisdiction, but I have no doubt that it is res judicata in the

wider sense.

20 At the very heart of both actions is the complaint that Mr Sinden acted in this matter.

That matter has been adjudicated upon. It has been determined that there were

complaints; that the Minister should have removed him from considering the planning

application; but that despite those matters, Mr Sinden was not guilty of misfeasance

in a public office or of negligence.

21 The Standardised Complaints for Responding to Complaints from the General Public

was introduced with effect from the 1st January 1991. The proceeding was thus in the

public domain and was known or ought to have been known to the Plaintiff and her

advisers when she commenced the proceedings in 1993. Her complaints started in

1992. If she thought that the failure to implement the procedures added anything to

her action (which I doubt) she could and should have had those matters litigated to

that action. This matter seems to me to be completely covered by the words of Sir

James Wigram in Henderson and Henderson which were quoted by Lord Justice

Brown in the Divine-Bortey case.

22 It follows that this is a case where I think that a stay ought to be ordered on the

grounds that the action is frivolous and vexatious. Such a stay is ordered pursuant to

Order 19 rule 4. In my judgment also the matter sought to be litigated herein is res

judicata in the wider sense and I order a stay for that reason also.

8

23 1 am fortified in my conclusion by a further consideration. At the conclusion of the

case CLA 1993/199 the learned Deemster heard argument as to costs.. Mr Moroney

for the Plaintiff was asking that the Defendant should pay her costs. The basis of his

claim was the passage that l have quoted from the learned Deemster's judgment at

pages 16 and 17. The thrust of the argument was that the Defendant had brought the

action upon themselves by failing to heed to Mrs Pilling's complaints and it ought to

therefore pay her costs.

24 in the event the learned Deemster made no order as to costs. The usual order would

have been that the costs should follow the event. Part of the claim for damages in the

action before me is for the costs of the previous action. The fact that the Deemster

made such an order only goes to show how much the issue of complaints and the

Department's failure to respond was all part and parcel of the first action.

25 Finally Mr Moroney referred me to a passage in the learned Deemster's judgment

where he was saying that if the Minister had heeded to the complaints there would

have been no need for the action at all. It seems to me clear that he must have only

been considering only part of the action when he made those remarks because there

were other allegations of negligence and breach of statutory duty not involving Mr

Sinden which clearly needed to be resolved.

26 It follows that there will be a stay of this action and there will be an order that the

Plaintiff pays the Defendant's costs.

9 Note. Subsequent to giving this judgment I was asked to sign an order which was drawn up by the Court's staff. The order in fact dismissed the action. Upon reflection it seems to me that that is the correct order that should be made. An order staying the action should only be made if one can envisage circumstances in which the stay might be lifted. I cannot envisage any such circumstances in this case. Accordingly it is my judgment the correct order is that the action should be dismissed.

9

MICHAEL SHORROCK Q.C.

31st July 1998

10 CLA 1997/296

IN THE HIGH COURT OF JUSTICE OF THE ISLE OF MAN COMMON LAW DIVISION

Between: SARIA JANE PILLING Plaintiff and

THE DEPARTMENT OF LOCAL GOVERNMENT AND THE ENVIRONMENT Defendant and IN THE MATTER OF the Defendant's motion dated the 15th day of January 1998

At a Court held at Douglas the 16th day of July 1998

His Honour THE ACTING DEEMSTER SHORROCK

UPON hearing the foregoing motion this day in presence of Counsel for the Defendant and for the Plaintiff and'having heard Counsel and Upon Consideration had thereof IT IS ORDERED that:

1. the said action be dismissed out of this Court

2. the Plaintiff do pay the costs of the Defendant of and incidental to the said action to be taxed in default of agreement.

ACTING DEEMSTER

CLA 1997/296

IN THE HIGH COURT OF IUSTICE OF THE ISLE OF MAN COMMON LAW DIVISION

BETWEEN:

SARIA JANE PILLING Plaintiff

and

THE DEPARTMENT OF LOCAL GOVERNMENT AND THE ENVIRONMENT Defendant

and

IN THE MATTER of the Defendant's motion dated the 15th day of January 1998

NOTE

On reading my judgment in this matter which was delivered on the 16th day of July 1998, I note that I ordered that all further proceedings in this action should be stayed. On reflection since I can envisage no circumstances justifying removal of the stay, it occurs to me that the correct order is to dismiss the action and this has been reflected in the order drawn up by the Court and signed by me.

MICHAEL SHORROCK

ACTING D_EEMSTER

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Parliamentary Copyright available from:

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