Morris, R (on the application of) v Health Service Commissioner & Anor [2014] EWHC 4364 (Admin)

Case No CO/7838/2013

[2014] EWHC 4364 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Venue Royal Courts of Justice

Date Tuesday, 2 December 2014

Strand

London WC2A 2LL

B e f o r e:

MR JUSTICE JAY

Between

THE QUEEN ON THE APPLICATION OF IRENE MORRISClaimant

Between

THE HEALTH SERVICE COMMISSIONERDefendant

GUYS AND ST THOMAS' NHS FOUNDATION TRUSTInterested Party

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A Merrill Communications Company

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(Official Shorthand Writers to the Court)

Mr P Coppel QC (instructed by Bindmans) appeared for Claimant

Mr J Maurici QC (instructed by Capsticks) appeared for Defendant

Mr E Capewell (instructed by DAC Beachcroft) appeared for Interested Party

J U D G M E N T

[1]MR JUSTICE JAY: The claimant, Mrs Irene Morris, had one daughter, Alexis, who was born on 17 March 1982. In early 2005, Alexis received a diagnosis of carcinoma of the bowel. Consequently she was treated at the interested party's hospital, St Thomas's, over what turned out to be the course of the next six years. Indeed, on account of her bowel cancer, as well as surgical and other complications, Alexis spent the majority of that period in hospital. Tragically, on 12 June 2011 Alexis died in hospital at the age of only 29. The immediate cause of death on my understanding was a urinary infection caused by the bacterial organism pseudonomas.

[2]Thereafter, and entirely understandably, the claimant wanted to learn more about what had happened to her daughter. Under section 3 of the Access to Health Records Act 1990, she was entitled to access her late daughter's medical records as specified in her application, and the interested party owed a correlative obligation to furnish sufficient access, in the terms set out in the section, within 40 days of the application.

[3]During the course of his opening argument, Mr Philip Coppel QC took me to the statutory background relating to the purposes which the 1990 Act was seeking to achieve, and in particular the decision of the European Court of Human Rights, to which the United Kingdom was compelled to respond.

[4]I will be examining the detail of what happened in a moment. By way of overview, the interested party failed to discharge its statutory obligations. The claimant complained, as was her entitlement, to the Health Service Commissioner, who is the defendant to these proceedings. On 23 August 2012, and following a review decision made on 26 March 2013, the defendant declined to investigate the claimant's complaint. These judicial review proceedings, for which permission has been granted by Collins J following an oral hearing, is directed to the lawfulness of those decisions, but in particular the second decision dated 26 March 2013. In my judgment, for reasons which I will be explaining in a moment, it makes no real difference which decision is placed under judicial scrutiny.

[5]The parties are agreed that the issue in these proceedings turns on a fairly narrow point, but before coming to it I need to set out the factual background in somewhat greater detail.

[6]The claimant made her application to the interested party under section 3 of the 1990 Act on 7 July 2011, and so the 40-day period expired on 16 August of that year. Her letter referred to "data protection legislation", not the 1990 Act, but nothing turns on this. Although the 13 categories of documentation sought were clearly pertinent and within the statutory scope, it is immediately apparent that the amount of documentation involved was likely to be very substantial; and so it turned out.

[7]From the claimant's perspective, it is important to examine the subsequent history in punctilious detail; from the defendant's perspective it is not, although Mr James Maurici QC perhaps resiled somewhat from that position in his oral submissions. But for the purposes of this judgment, I propose to follow a middle course, although in considering her case I can assure the claimant that I have not lost sight of the detail. Indeed, I was reminded of all the salient parts in Mr Coppel's opening arguments.

[8]The interested party clearly had difficulty in complying with the claimant's request and made various statements over the course of the succeeding months which, putting the matter at its lowest, were incapable of practical fulfilment. The claimant was entitled to be disappointed by the quality of the interested party's response to the discharge of its statutory obligations. Taking just one example, on 27 September 2011 the interested party, which by then was already outside the 40-day time limit, promised approximately 2,700 double-sided pages by the end of that week. On 30 September, the claimant collected a bundle of copy documents which ran only to some 700 pages.

[9]On 28 September 2011, the claimant had already emailed the interested party, and said amongst other things this:

"You mention that the information you have at present was the most accessible. Is there a reason as to why you do not have access to my daughter's clinical notes pre 04.06.06? [As I have pointed out, Alexis was in hospital from as early as the spring of 2005]. Also, why after six weeks do you not have access to the other records I have requested? In particular the oncology notes and oncology pharmacy prescriptions, these documents should have been put in store along with the others when my daughter died in June of this year."

I do not read that email as raising a specific complaint about the quality of the interested party's systems. However, the claimant did want to know why the Trust had proved unable to comply with its statutory obligations and furnish the documents.

[10]On 7 October 2011, the interested party wrote to the claimant stating that it aimed to fulfil the remainder of her request by Friday 14 October. Additional documents were provided, but they were not complete. The interested party's covering letter did not make that clear. By email dated 17 October, the claimant observed that "large chunks of data are either missing in some cases and in others are not supplied at all". The interested party's rapid response was to accept that the documentation provided was incomplete and that it hoped to provide an update by 9 November.

[11]On 25 October 2011, the claimant made an official complaint to the Chief Executive of the Trust, Sir Ron Kerr. The complaint was in these terms:

"Official Complaint As I have not received an acknowledgement to the email I sent you on 21 October re: Pseudomonas statistics and as I am still waiting for the requested statistic and copy documents in whole (please see emails below) regarding my daughter's medical records, I am now making a formal complaint through your office regarding the failure to provide the information request. It is bad enough that your staff appear to be incapable of doing the job they are being paid for; they now (after four months) expect me to do it for them. I consider that St Thomas' have had sufficient time to produce the information I have requested."

Thus, the essence of her complaint, at least at that stage, concerned the interested party's failure to make timely provision of documents in line with its statutory obligations.

[12]Sir Ron provided an informal response by email. The claimant's reaction to that was to offer the following observations:

"With regard to the ongoing search for my daughter's paper and electronic records again leaves me failing to understand the problem. My daughter died on the 12th of June, why have her records, letters, emails, notes of meetings etc, etc not been collected together and archived? The fact that she was seen by several departments across the hospital sites is irrelevant; you have her name and her hospital number. Nor does it explain why Ms Kelly chose to enclose letters with the copy documents I have received stating that she had enclosed documents that had not been sent, why certain pages are missing from those I have received or why nothing was done for the first two months from the time I made the request. Your para 4 - I beg to differ, the copy documents are exactly what I require, there will be time for questions and queries once I have carefully checked them, to which I expect answers..."

In essence, the claimant could not understand why the interested party was unable to provide copies of the documentation she was seeking.

[13]Sir Ron replied formally the claimant's complaint on 18 November 2011. He apologised for the delay and explained as follows:

"Alexis was under our care for many years, a significant number of these as an in-patient. Consequently, this was one of the largest case-note searches that the Trust has ever undertaken. We estimate that we have retrieved approximately 95% of the thousands of records generated across multiple departments and sites. We appreciate that this is simply not good enough and we sincerely apologise for the case-notes that we have, to date, not been able to source. I can confirm that the General Managers responsible for the areas where we believe notes to be outstanding are continuing to search for records, and if or when additional notes are identified we will courier these to you without delay."

Thus Sir Ron was acknowledging some of the interested party's failings. However, he was not dealing with the claimant's point "why have her records...etc...not been collected together and archived?" Instead he was saying, on my understanding of the letter at least, that the documents sought were located across multiple departments and sites.

[14]On 28 November, the claimant wrote again to Sir Ron. Amongst raising other matters she said this:

"To correct you, Alexis (apart from a few weekends) spent all of the five and a half years in hospital. I reiterate if it is a case of one file or a hundred files (paper or electronic) there is no excuse for your paperwork to be in the state you are claiming it to be in. The fact that she was in hospital for the length of time she was made it all the more important that her records be carefully kept..."

[15]On 16 December 2011, Sir Ron wrote again to the claimant. He said that the remaining notes, which were approximately 5 per cent of the total so far retrieved, could not be found. He also said that the interested party had made a huge effort to unearth the documents. How he could arrive at the 5 per cent figure was and remains unclear.

[16]On 8 May 2012 the claimant, by then justifiably exasperated by these bureaucratic delays and inefficiencies, made her complaint to the defendant using the latter's published form. She completed it in manuscript. Paragraph 6 of the complaint form asked the complainant to identify her original complaint to the organisation and why she was unhappy with their response to that complaint. Under that rubric, the claimant said this:

"I have requested a copy of our deceased daughter's medical records, letters, emails, notes of meetings etc held by the hospital (both paper and electronic). The hospital have not supplied all the requested documentation despite repeated requests for them. I have followed the hospital complaints procedure via the Chief Executive to no avail."

In my judgment, that was a succinct and accurate summary of the essence of her complaint to the interested party.

[17]Section 7 of the complaint form asked the complainant to explain how she has been affected. The claimant's answer is detailed and it is not necessary for me to cover all the ground. But let me take up the answer five lines from the end of the manuscript form:

"This was distressing enough, but to then be forced to spend eight months plus trying to obtain a full copy of our daughter's records etc has been devastating, stressful and has added to our distress. The excuse that the documentation cannot be found is outrageous and unacceptable." [Emphasis added]

[18]Under paragraph 8 of the form, the claimant was invited to explain what she would like to happen. Here it is necessary to set out the whole of what she said:

"I expect the hospital to meet its legal obligations by finding and supplying me with a copy of the missing information. They claim that they have sent me 95% of the documentation, whereas it is closer to 50%. They have not met the set time in which to respond to my request, and they have explicitly withheld information. I have enclosed a copy of the exchange of correspondence (emails and letters) together with Excel sheets showing: (i) documents requested and actually received (ii) documents missing/to be supplied."

[19]Mr Coppel emphasises the sentence "the excuse that the documentation cannot be found is outrageous and unacceptable", whereas Mr Maurici prefers to place emphasis on "I expect the hospital to meet its obligations by finding and supplying me with a copy of the missing documentation". But to be fair to both counsel, they draw attention to the entirety of the complaint form. I will be returning to how it should or might be interpreted at a later stage.

[20]On 7 June 2012 the defendant emailed the claimant stating that her complaint related to the release of information under the Freedom of Information Act and that it should therefore be directed to the Information Commissioner's Office. That was unhelpful. The defendant was incorrect. The claimant then pointed out that the ICO had declined jurisdiction on 21 March 2012. Happily, the defendant then accepted jurisdiction.

[21]Despite my strictures about the defendant's email dated 7 June 2012, it is worthy of note that Mr Simon Bennett, the defendant's case officer, thought that the subject matter of the complaint was limited to a failure to provide documentary information.

[22]Mr Coppel drew my attention to the terms of the ICO's email of 21 March, particularly under the rubric "Next steps" at page 64 of the correspondence bundle. However, on further reflection it appears that this section of the email was dealing with the claimant's related complaint which was as to the provision of statistics; it did not relate to the complaint relating to medical records. It follows that what is said under that rubric does not really assist.

[23]It is common ground that on 9 July 2012 Mr Simon Bennett telephoned the claimant. The parties are not in agreement as to precisely what was said. Mr Maurici submitted to me that the purpose of the call from Mr Bennett's perspective was to ensure that he had understood the essential gravamen of the complaint, and I am content to proceed on that basis. The claimant's account as to what took place, as set out at paragraph 12 of her witness statement dated 3 November 2014, reads as follows:

"Mr Bennett refers to a conversation I had with him by phone on 9 July 2012, and exhibits a note of that conversation ... I accept that I told him that I wanted copies of the missing medical records. But it was not the only matter of complaint that I covered when I spoke to him. In particular, I made it clear that I could not believe that such a significant number of medical records could simply go missing without proper explanation. I explained my concerns at some length and Mr Bennett could have been in no doubt that I was calling into question the record-keeping system of the Trust and seeking answers to that question ... More specifically, he further stated that he would consider what steps the Trust had taken to try and obtain the records."

[24]Mr Bennett relies primarily on his contemporaneous note of that conversation, which reads:

"Spoke to Mrs Morris. I explained how we would look at her case and that our consideration would be in respect of the actions the Trust had taken to resolve the complaint and the responses it had provided. I explained that we consider if something has gone wrong and if so the injustice to the person, but we have to consider if we could reasonably achieve anymore. I said that we could not search the hospital for the records and therefore I would consider what the Trust had done to try and obtain the records that she was requesting. As a result of her complaint she wants the missing records. I asked about the spreadsheet she had provided and she said she knew which records were missing and only 50% were provided rather than 95%. She used examples that all of the oncology records were missing and said that nobody had checked what was sent out to her. She asked if there was anywhere she could go that could force the Trust to release the records. I said that we were the last part of the NHS complaints process and she suggested that a court could. I said that I could not advise on legal issues and explained that we cannot look at cases where legal action is ongoing - but this is not the case here. I said that I did not want to raise her expectations that we could get further records from the Trust, but said that I would be contacting the Trust to understand the actions it had taken."

[25]I interpolate at this stage that it is clear that Mr Bennett must have written to the Trust to understand the actions it had taken. That is made even clearer by the terms of the interested party's email to him dated 24 July 2012, where it explained amongst other things the process on which the Trust case notes were searched and the actions taken to try and find the records. According to paragraph 8 of his witness statement dated 22 May 2014:

"...I confirmed with the claimant that what she was seeking through our investigation was to be provided with copies of the missing medical records. This is my recollection of our conversation and it is confirmed by the note I took of our conversation."

[26]Mr Maurici drew my attention to the second witness statement of Mr Simon Bennett, dated 14 November 2014. There, under paragraph 2, Mr Bennett said this:

"I was as clear as I possibly could have been in my contemporaneous notes ... that the claimant stated 'As a result of her complaint she wants the missing records'. From the way I write my notes I am clear that that is all she wanted. Had she wanted other outcomes I would have recorded those in my contemporaneous notes. However she did not do so."

[27]Mr Coppel submitted that Mr Bennett was going one stage further and was seeking to rely on his recollection of the telephone conversation on 9 July 2012 to justify his clear conclusion that the claimant's request or complaint was limited to the missing records. In fact, I do not read paragraph 2 of Mr Bennett's witness statement in that way. All he is doing, in my judgment, is drawing firm conclusions from the text of the attendance note. To the extent that it is arguable that Mr Bennett may have been seeking to go further, I place no weight on that. In my judgment, having regard to the lapse of time between July 2012 and November 2014, the attendance note is all that Mr Bennett could reasonably be going on. Plainly, however, there are differences between these two accounts, which I will need to resolve to the extent appropriate and necessary. In the end, as I shall make clear, this case does not turn on any such differences.

[28]The defendant's first adjudication upon the complaint was given on 23 August 2012. It is clear from Mr Bennett's letter that the defendant was interpreting the complaint as relating to the interested party's inability to provide the claimant with a complete set of medical records. The defendant stated that it was satisfied that the interested party had made reasonable attempts to locate the records "despite its loss of these records indicating failures in its processes". The defendant was not persuaded that there was anything more it could do to try and obtain the missing information. Under the rubric "Reasons for our decision" the defendant said as follows:

"We have contacted the Trust to try and understand the actions it has taken to try and retrieve all the records. It is clear that the Trust has devoted a considerable amount of time in trying to retrieve the records and a number of senior staff have been involved in the process. Whilst it does not excuse the Trust's inability to find the records, we are not persuaded that more could be done to locate the records. At some point the decision needs to be made that no more records are going to be found and we consider that the decision was only taken after reasonable efforts had been made to locate them. Clearly the Trust could continue to look for the records indefinitely, but this would not be a proportionate way to address the issue..."

[29]On 30 August 2012 the claimant replied to the defendant's first decision letter expressing her profound disagreement with it. To my mind, the critical portion of the claimant's reply reads as follows:

"Your para 5. There is no doubt that a clear failing in the service provided by the Trust in supplying a large part of my daughter's medical records to which her father and I have legal right is more than evident, that is injustice enough. And yes we have been negatively affected by the added distress this is causing us on top of our daughter's death. And yes, you could reasonably achieve more by considering this complaint further; you could ensure that the missing documents are produced."

Understandably, Mr Maurici places emphasis on the last sentence of this citation. The claimant does not take issue with paragraph 2 of the decision letter, in which the parameters of the complaint were identified.

[30]In order to complete the picture, I should refer to the claimant's comments under paragraph 7 of her letter dated 30 August 2012, in which she addresses the absence of a satisfactory explanation. On 4 September 2012, the defendant informed the claimant that she would, on request, review her decision. On 20 September the claimant reiterated her concerns and that reiteration it is clear the defendant interpreted as a request for a review. During the course of her letter, the claimant said this:

"The Trust has already said that other missing files and documentation were distributed throughout the hospital, these would have been sitting with various departments or clinics e.g. the oncology and chemotherapy clinics, the endoscopy clinic, various admin and secretarial offices to name a few. The Trust has not offered an explanation as to why these documents were not archived. That the PHSO consider that the loss of these records from every one of these departments, clinics or offices is reasonable or in any way acceptable; in my opinion (and I do not stand alone) is both naive and inconceivable. There must be some procedure in place through which deceased patients' documents are archived or chased up when archiving is not forthcoming. If potential archive material is missing, then are you saying that nobody followed any of that procedure?"

[31]On 4 December 2012 Bindmans LLP wrote to the defendant. The first point the solicitors made was as follows:

"Mr Bennett records the outcome Mrs Morris wanted in the following terms: 'As a result of her complaint Mrs Morris wants to receive the outstanding records from the Trust'. Under the heading of indications of maladministration, he records that Mrs Morris' primary concern is that the Trust has been unable to obtain the records. It is clear from the discussion we had with our client that her object was either to receive the records or, failing that, to have their loss verified by an independent person, who would also investigate the circumstances in which they were lost to see whether there was a satisfactory explanation for their disappearance. In our view, you can only assess the utility of investigating if you have reliably determined the outcome sought ... Had Mr Bennett properly characterised the purpose of the complaint, he or the decision-maker might have reached a different conclusion on the need for further investigation."

[32]On 26 March 2013 the defendant communicated to Bindmans LLP the result of its review decision. Amongst the points that she made in refusing the application for the review was that the defendant had correctly interpreted the original complaint as directed to the sole outcome of obtaining the missing records.

[33]I agree with Mr Maurici's submission that the review decision adds nothing to the original complaint, at least in this context. The issue arising in these proceedings is whether the defendant correctly interpreted the original complaint or, more precisely, whether its interpretation of that complaint is impugnable on public law grounds. The purpose of the review decision was not to reinterpret the original complaint. That, as it were, was a given. Thus, if the claimant succeeds on the basis that the original decision of 23 August 2012 is unlawful because the original complaint was incorrectly interpreted, then it adds nothing to her complaint to pray in aid the review decision. Logically, the same error would have been made. On the contrary, if the original decision made in August 2012 is free from legal error, in my judgment the claimant's case is not improved by referring to the later decision.

[34]The subsequent correspondence does not really matter for present purposes. It is true that there has been a fresh complaint and that those representing the defendant have indicated that it is being investigated. It is said by the defendant that the circumstances of the fresh complaint do not render these proceedings academic, and I reluctantly agree. Mr Maurici made it clear to me that, although the defendant has accepted the fresh complaint, it has not yet determined its precise scope.

[35]This judicial review challenge raises what I would choose to call a refined Wednesbury issue. I put the matter in those terms because the courts have consistently recognised that the defendant's investigatory powers under section 3 of the Health Service Commissioners Act 1993 are very widely drawn. In R (on the application of Mencap) v Parliamentary and Health Service Ombudsman

[2011] EWHC 3351 (Admin)

, Mitting J referred to "an unfettered discretion". I interpret that as meaning a very broad discretion, reviewable only on a conventional Wednesbury basis, including demonstrating that the decision maker has plainly asked itself the wrong question or has plainly misinterpreted the complaint. In R (on the application of Jeremiah) v Parliamentary and Health Service Ombudsman

[2013] EWHC 1085 (Admin)

, Collins J said this:

"30. The law, as set out by both the Act and its interpretation in previous decisions, is that the hurdle which has to be surmounted by any claimant seeking to persuade a court that an exercise of discretion by the Ombudsman is unlawful is a very high one indeed. The relevant leading decision is R v Parliamentary Commissioner for Administration ex p Dyer [1994] 1 WLR 621 where Simon Brown LJ, as he then was, giving the judgment of the Divisional Court made it clear that the width of the discretion was, as he put it, made 'strikingly clear' by the legislature. That is a reference to the provision which is now in section 3(5) that the Commissioner should act in accordance with his own discretion. He said that it would always be difficult to mount an effective challenge on what may be called the conventional ground of Wednesbury unreasonableness. While manifest absurdity perhaps did not have to be shown, it would be almost as difficult to demonstrate that the Commissioner had exercised one or other of his discretions unreasonably in the public law sense..."

I endorse that approach, and in so far as there is any difference of substance or emphasis between Collins J and Mitting J, I prefer the reasoning of Jeremiah.

[36]Mr Coppel's submissions proceeded along the following path. His point of departure was that, given that the complainant's complaint to the interested party included a systemic complaint about the manner in which medical records were stored and archived, it is close to inconceivable that the claimant would have abstained from raising similar matters before the defendant. Indeed, Mr Coppel invites me to find that is precisely what occurred during the course of the critical telephone conversation on 9 July 2012; in other words, that the claimant did expressly raise the selfsame matters. Furthermore, Mr Coppel submits that the essential question which arises is whether the defendant properly understood the complaint that was being made, because if she did not then in public law terms the defendant would have been asking herself the wrong question. That is the refined Wednesbury point to which I have earlier referred.

[37]Mr Coppel invites me to approach that essential question as raising objective factors, because the construction of documents such as these should be approached in a manner akin to the interpretation of commercial contracts: see, for example, the approach of the House of Lords in Attorney General of Belize v Belize Telecom

[2009] 1 WLR 1988

. Mr Coppel drew a further analogy between the present case and cases where issues arise in relation to the application by the Secretary of State of his or her own policy. The courts have on numerous occasions made clear that the interpretation of policy is not for the Secretary of State: it is for the courts. Mr Coppel throughout his submissions emphasised the need to consider the overall context, since that illuminated the true nature of the formal complaint document.

[38]Ultimately, Mr Coppel's contention was and is that the complaint both to the interested party and to the defendant necessarily comprehended a complaint about the inexplicable and not properly explained loss of so many important medical records, and that bore on the interested party's systems or lack of them. As Mr Coppel put the matter at paragraph 94 of his detailed skeleton argument:

"This necessarily raised issues that the Trust had: (1) failed to archive numerous important medical records held by it relating to Alexis; (2) failed adequately to search for all the records; (3) failed to locate numerous important records which it had recently held relating to Alexis; (4) failed to independently verify that it had adequately searched for all the records and that it was no longer able to locate all the records. Had it so identified these failures, the function of the Ombudsman would have included identifying the systemic shortcomings in the Trust that resulted in (1), (2) and (3)." [Emphasis supplied]

[39]To be clear, in oral argument it became apparent that Mr Coppel was advancing the case in three slightly different ways. His first (and preferred) formulation is the one I have already set out, namely that the complaint documentation bears an objective meaning and that there is no room for discretion. That is the point that Mr Coppel emphasised at the very start of his opening argument. The second formulation is the one which appealed to Collins J, at least as being arguable, when he granted permission after an oral hearing. As I put to Mr Coppel in oral argument, that formulation runs along these lines: first, that the interested party had not provided the documentation it was legally obliged to; secondly, that the excuses given by the interested party in that regard were outrageous and unacceptable; thirdly, that any distinction between the terms "excuse" and "explanation" are purely semantic; fourthly, that it may be implied from a complaint seeking a proper explanation that in effect and substance the claimant was making a systemic complaint (in other words, the complaint about the absence of a proper explanation merges inextricably into or with a systemic complaint); and finally, although it may be accepted that the systemic complaint was subsidiary to the main complaint, the way Mr Coppel puts this, on mild prompting from me, is that the complaint form cried out with that subsidiary complaint. The third formulation which emerged during the course of argument was that the complaint documentation, even if it could not be interpreted "objectively", bore only one reasonable interpretation.

[40]At this stage, I should make clear, as I think Mr Coppel accepted in oral argument, that the second and third formulations are in reality the same. For presentational reasons if no other, it is better from the claimant's perspective to focus on the second formulation since it does not grapple or engage head-on with the difficulty that a pure Wednesbury issue is raised.

[41]Before turning to the merits of Mr Coppel's arguments, I need to explain in some more detail why I refused his application for permission to cross-examine the defendant's main deponent, Mr Simon Bennett. This application was made extremely late in the day, namely on 20 November 2014. It is only in exceptional cases that the court countenances live witnesses and cross-examination: see Lord Neuberger MR in Bubb v Wandsworth LBC

[2011] EWCA Civ 1285

. The issue for me is whether cross-examination of Mr Bennett would be necessary and proportionate having regard to Lord Neuberger's test. In my judgment, it would not have been. It is not suggested that Mr Bennett's attendance note of the telephone call is other than it purports to be, namely a contemporaneous record of that call, or at least his understanding of what was said during that call. The language of the attendance note is reflected in the defendant's review decision dated 26 March 2013 before litigation was contemplated. The note therefore represents the best evidence of Mr Bennett's interpretation of what the claimant was seeking. In his second witness statement, Mr Bennett accepts that the claimant may have said that she could not believe that these medical records could simply go missing, but he was certain the claimant did not want an explanation.

[42]As regards this latter point, I have already observed Mr Bennett's certainty can only be derived from his rereading of the note itself. I do not accept that Mr Bennett has a good independent recollection of what took place. But, albeit with slightly less force, the same observation may be made in relation to the claimant. I fully take on board Mr Coppel's point that Mr Bennett may be dealing with hundreds of these cases over the course of one year, and the claimant has self-evidently only one case, but at the end of the day I must have regard to common sense, to the absence of any contemporaneous note which the claimant took, and to the lapse of time which has occurred. In any event, the real issue to my mind is Mr Bennett's interpretation of what was said in the light not merely of the content of that call but also the complaint form which is the document on which all of this proceeds. For these reasons, I refused the application for cross-examination.

[43]I turn now to consider in somewhat more detail Mr Coppel's formulations. His first and preferred formulation is, as I have said, that the complaint form bears an objective meaning. In my judgment, this is not the sort of situation which is akin to the interpretation of a policy document generated by the defendant. In the circumstances of the instant case, the task is to interpret the claimant's own documents, not the defendant's. Mr Coppel's attempt to assimilate this case into the principles governing the interpretation of commercial contracts is, in my judgment, misplaced. There are clear policy reasons, built up over many years, pursuant to which the common law has demanded a tight objective approach to commercial contracts. These reasons do not require amplification in this judgment in, after all, a public law case.

[44]I accept that there are some similarities here with the objective contractual approach, but those similarities are not sufficient to make good Mr Coppel's submission. The similarities I have in mind are that, even in a public law context, the court would exclude private subjective meanings; it would also exclude consideration of post-decision documentation; and finally, the court would plainly wish to pay attention to the words which appear on the page. However, there are many cases in which the words on the page may bear more than one reasonable interpretation. I have to say that the present case is an example of such a case. Overall, therefore, I cannot accept the objective meaning approach; I am bound to accept the reasonable interpretation approach.

[45]Mr Coppel's second and third formulations, which, as I have said, really amount to the same, proceed on the basis that what everyone accepts (from the claimant's perspective, that is) is the subsidiary complaint, the systemic complaint, can be necessarily implied from the complaint documentation. The difficulty here is the stringency of the test which applies. In order for something to be necessarily implied, it has - to adopt a contract law analogy - to be so obvious that it goes without saying. In other words, it has to be the only reasonable interpretation of the documents in issue. It seems to me that the claimant is constrained to argue that the existence of the subsidiary complaint, the systemic complaint, was the only reasonable interpretation to be borne from all the material under scrutiny in this case, in particular the complaint form to which I have already referred. Ultimately, therefore, this case boils down to the following point: if there is more than one reasonable interpretation of the complaint documentation, then the claimant must fail; but if there is only one reasonable interpretation, then she must succeed.

[46]Turning away from Mr Coppel's formulations and seeking to apply them to the available material which I have set out at some length, it seems to me that the gravamen of the claimant's complaint against the interested party was that it failed to comply with its statutory obligations and provide copy documentation. It is clear that the claimant was unhappy with the interested party's explanations such as they were given. But that unhappiness was part and parcel of her essential complaint relating to the absence of documentation.

[47]Mr Coppel relies on the gravamen and tenor of the complaint, vis-à-vis the interested party, as supporting the claimant's case that she has been consistent throughout. It is his leitmotif or thematic argument alluded to in his written submissions. That, in my view, over-complicates the matter. The claimant would not be acting inconsistently if she had pressed the interested party to comply with its statutory obligations and then complained to the defendant that not merely had the interested party failed to comply with those obligations, its failures betoken underlying systemic failings. In other words, it would have been open to the complainant to advance her complaint to the defendant as narrowly or as widely as she thought fit.

[48]I do not understand the claimant to be contending that her daughter died as a result of clinical negligence, or at least that was not her complaint two years ago. She may not have the evidence to go that far. In many clinical negligence cases, in my experience, the objective of the family member will be to secure a proper explanation and apology from the hospital so that individual and systemic failings are addressed and the chances of recurrence are reduced. I am not saying that it is impossible that this claimant had similar subsidiary objectives, but I am not satisfied that she made those remotely clear. She needed all the documents in order to understand what had happened to Alexis; that was at the forefront of her mind at all material times.

[49]In my judgment, this case does really hinge on the complaint form rather than the subsequent telephone conversation. The complaint form may be taken in context, but that ultimately does not avail Mr Coppel's argument. During the course of that conversation, I am sure that there was some general discussion about the complaint. But the highest that it may be put is that Mr Bennett wanted to be sure that he had understood the complaint. That said, the complaint was already clearly explained within the four corners of the complaint form. Mr Bennett then wrote down his interpretation of what the claimant wanted in his attendance note. That, to my mind, is compelling evidence.

[50]But returning to the complaint form as completed by the claimant, she made clear that her original complaint to the interested party was about its failure to provide documentation despite repeated requests. She provided copies of relevant documentation for information purposes, and she identified in terms those documents which she believed had not been furnished. She told the defendant that she wanted the interested party to comply with its legal obligations by finding and supplying her with copies of the missing information. The sentence "the excuse that the documentation cannot be found is outrageous and unacceptable" was in the context of a section in the complaint form dealing with the obvious impact on the claimant. At no stage, in my view, did the claimant make it clear that the she wanted the defendant to investigate the interested party's excuses or explanations or any underlying systemic failures. In my judgment, putting the matter as high as it could properly be put against the defendant, it may have been open to the defendant to investigate these matters if it wished, but it was not incumbent on the defendant to do so.

[51]The complaint certainly bears more than one interpretation. My preferred interpretation is that it should be narrowly construed, and that paragraphs 6, 7 and 8 of the complaint form, read as a whole and in context, properly limit the complaint to the failure to provide documents. Moreover, my preferred interpretation is that there was no subsidiary complaint. But even if I am wrong about that, the interpretation which the defendant clearly placed on this documentation read in its proper context was an interpretation which was reasonable in all the circumstances.

[52]As I have already said, I do not consider that the case is improved by invoking the claimant's recollection of the 9 July telephone conversation. I have no doubt whatsoever that the claimant honestly believes that the conversation was precisely along the lines she has stated. There is no question about that. I am not satisfied that the claimant expressed herself in such clear and unequivocal terms to Mr Bennett. I am satisfied, moreover, that whatever she did say was interpreted by Mr Bennett in the manner in which we can see on the face of attendance note itself.

[53]In any event, if one returns to the text of the attendance note, I consider that the final sentence of the first paragraph needs to be placed in its proper context. It was Mr Bennett after all who was saying that he would consider what the Trust had done to try and obtain the records that the claimant was requesting. In my judgment, Mr Bennett was saying, in the context of his understanding of the situation, that the complaint related to the missing records. It was relevant to understand what the Trust had already done to try and obtain the records in order to reach a conclusion as to whether the Trust had done enough. Thus the final sentence of the first paragraph of the attendance note links inextricably with the second paragraph and does not on analysis support the claimant's suggestion that Mr Bennett was recognising that lurking underneath this was some sort of systemic complaint.

[54]I have considerable sympathy for the claimant, who has been given, at least on the face of things, the metaphorical run-a-round by the interested party. I have to say that the latter has not covered itself in glory, although at Mr Capewell's invitation I say nothing about the evidence that the interested party has filed in relation to this judicial review application.

[55]The upshot is that, if the defendant can see a way through to investigating the claimant's fresh complaint in full and in accordance with her wishes, I would urge it to do so. But for the reasons I have given, this application for judicial review has to be refused.

[56]MR MAURICI: My Lord, I am grateful. My Lord, in addition to an order dismissing the claim I do seek an order for the Ombudsman's costs. There is a schedule of costs; I do not know whether that has reached your Lordship?

[57]MR JUSTICE JAY: No, it has not. Are you really instructed to press for your costs? Is it not enough for these purposes that you have a judgment from me? I appreciate you are publicly funded, but it would be great if you could think about that.

[58]MR MAURICI: Well, my Lord, I can take instructions on that, but not from those behind me; I will have to make a call back. I am not sure whether you are prepared to do that and we can deal with it in writing if I do pursue my application, or whether you just take -- it will not take long for us to get an answer if your Lordship wants to give me 15 minutes to take instructions.

[59]But, my Lord, the only reason that we have set out to ask, as you may have seen in the correspondence, is that on a number of occasions we have made offers for the claimant to withdraw from these proceedings with no order as to costs, and indeed on more than one occasion we also said that the alternative was for her to withdraw and for there to be in the order provision for written submissions on costs in accordance with Ouseley J's December 13 guidance note in M v Croydon, and all those offers have been rejected. On that basis, we kept the offer open until I think Thursday last week, and said that after that time we would have to seek our costs because we are publicly funded. My Lord, that is why we are asking, but I am very happy to take further instructions in the light of your Lordship's judgment.

[60]MR JUSTICE JAY: Yes. Maybe you could do that. I can see that the gentleman behind you has gone out, possibly to make a call.

[61]Mr Coppel, if they press for their costs -- well, shall we wait and see whether they press for their costs?

[62]MR COPPEL: Shall we, my Lord? To answer my learned friend's last point, the reason why we have not accepted the offer is because we do not know what is going to be included in their investigation, and we were awaiting that to decide whether we wanted to carry on with this. For whatever reason, the Ombudsman has taken the time that the Ombudsman has and continues to take in deciding the content of the investigation itself. But that is a matter that, as your Lordship indicated previously, is not a matter for your Lordship today. But it does explain our stance.

[63]MR JUSTICE JAY: Yes. At the end of the day this is a case where costs probably follow the event. But I have invited the Ombudsman to take a broader view. Of course, the breadth of her view may depend on whether you are instructed to make further applications.

[64]MR COPPEL: My Lord, shall we have 15 minutes?

[65]MR JUSTICE JAY: I am not negotiating with you, but you know what I mean. It may be that you are instructed to make such an application anyway.

[66]MR COPPEL: My Lord, I think all around from both sides it would do no harm if we adjourned for 10, 15 minutes, if that is suitable to your Lordship?

[67]MR JUSTICE JAY: Yes. Well, what I will do is I will give you until 4.05 pm, but I will come in at 4.05. Is that reasonable?

[68]MR COPPEL: That is reasonable.

[69]MR MAURICI: I am grateful.

[70]MR JUSTICE JAY: Unfortunately it is a good five-minute walk to my little room, but exercise is good for me. (A short adjournment)

[71]MR MAURICI: My Lord, I am instructed to pursue an application for costs. My Lord, just on that, can I just make these brief points: first of all, as I have already said, the reason we are pursuing is that we have given the claimant numerous opportunities to exit these proceedings on a no-costs basis; alternatively, allowing her to make written representations on costs on under M v Croydon and the guidance of Ouseley J, all of which were declined. My learned friend says that that is because the scope of the investigation had not been settled. But, my Lord, our position has always been that those two matters are separate.

[72]My Lord, thirdly we are here concerned with public money, and in relation to that we want to protect the position of the public purse by getting an order. Fourthly, though, I make this clear, as in the Jeremiah case, that we will give very careful consideration as to whether we would actually enforce that order, depending on the financial circumstances of the claimant.

MR JUSTICE JAY: How much do you seek?

[74]MR MAURICI: My Lord, the schedule, the total figure is £80,654.35. If it assists, given that we make clear that we would give very careful consideration as to whether we would enforce the order, we are prepared to have an order for detailed assessment, so the court does not have to spend time dealing with that now; it would only arise if we actually decided in due course to enforce the order. I have not asked Mr Coppel whether he wants that or he would rather have summary assessment, but we are certainly prepared to accept detailed assessment so that no further time and money is spent on that unless we decide to actually enforce.

MR JUSTICE JAY: Mr Coppel?

[76]MR COPPEL: My Lord, we resist the application for an order for costs. It is unusual, of course, where the defendant has been successful, but these are unusual circumstances. The particular unusual circumstance, my Lord, is that you cannot disconnect the continuation of this claim for judicial review from the other complaint which was before the Ombudsman. It was throughout in the gift of the Ombudsman to make clear the scope of the complaint and for this matter to be treated and considered accordingly.

[77]My Lord, that is apparent from the letter from Capsticks, the solicitors instructing my learned friend, dated 26 November 2014, where they offered to drop the proceedings on a no-costs basis. So even if your Lordship is minded to make an order for costs, we say that the costs that are recoverable should only run from the date of the expiry of that offer. That is what we would say.

MR JUSTICE JAY: Why do you say that?

[79]MR COPPEL: Because, my Lord, the point being made by my learned friend is that we had this offer on the table and we did not accept it. If he is right about that, then the correct order for costs are that the costs incurred after that date should be his, not the costs that were incurred prior to that date. The reason why the costs incurred prior to that date are irrecoverable is because you cannot disentangle the continuation of this claim, the complaint that Mrs Morris made in relation to the matters that occurred post-decision of the Ombudsman. She had always apprehended that it should be included within that complaint, the matters that she complained to the Ombudsman initially. So we would say that is the correct approach if there be an order as to costs made.

[80]As for my learned friend's suggestion that the Ombudsman would give careful consideration to the enforcement, that should of course not go to the exercise of the discretion itself. It is a separate matter. (Inaudible) pleased to hear that some thought will be given to that by the Ombudsman, but the issue we say falls to be determined by looking at the dispute between the parties in the round to see what it was that is animating first of all the instigation and secondly the continuation of these proceedings. If any order is to be made it is, as I said, one that postdates the letter of 26 November. For your Lordship's record, you find that in the first bundle under tab B at page 239. Over the page, 240, that is the offer to which Mr Maurici referred. The offer closes on 26 November 2014 at 4.30 pm. So if any order we say is made, it is really only not picking up the offer that was there put on the table, that is to say the costs from 27 November forward.

MR JUSTICE JAY: What about the detailed assessment issue?

[82]MR COPPEL: My Lord, it is a large sum of money on any analysis, and we agree with my learned friend, both for the reason that he has advanced, namely the consider the other matter, that is to say entering into some sort of arrangement, and also because of the sums involved, the appropriate course is for the matter to go off for detailed assessment, if it is to go off at all.

MR JUSTICE JAY: Thank you.

[84]MR COPPEL: My Lord, that is all that I wish to say in relation to costs.

[85]MR JUSTICE JAY: In my judgment you can, indeed one must, disconnect this claim from the further claim, the scope of which has not yet fully been determined, because they are discrete matters. The defendant's offer, which Mr Coppel refers to, closed I think at 4 pm on 26 November, but it does not follow from that that the defendant's costs must be limited to that date, that, given that the offer was not accepted, costs were now at large and could well follow the event.

[86]Consideration of the defendant's offers helps the defendant, in my view, and not the claimant. So the correct order here (but Mr Maurici tells me that very careful consideration is going to be given to the issue of its enforcement) is that the defendant should have the entirety of its costs but subject to a detailed assessment if not agreed.

[87]Any other applications?

[88]MR COPPEL: Yes, my Lord. I make an application for permission to appeal to the Court of Appeal. I do so on two bases, two grounds. First, the principle, my Lord, that the Ombudsman can select whatever interpretation she likes to a complaint just provided that it is not Wednesbury unreasonable is a broader issue worthy of consideration by the Court of Appeal. There is no other legal context that the courts have taken this approach to the construction of the documents, however casual those documents may be, and it goes very considerably to the manner in which the Ombudsman investigates matters.

[89]Secondly, the second ground is that on a proper analysis of the totality of the material, as opposed to a strict reading of the complaint form, we say it was clearly objectively implicit that Mrs Morris' complaint was not simply confined to finding the missing records but involved getting to the bottom of why it was that they had not been located.

[90]We say each of those grounds is sufficient in its own right, each of those grounds is good, and each of those grounds raises a matter of broader public interest.

[91]MR JUSTICE JAY: It will only be with a rare case, in reality no point of law has arisen because the authorities are clear, that I will grant permission to appeal and this is not such a case. In my view, the claimant is in a better position asking the Court of Appeal for permission, because if I am wrong (and I do not think I am wrong), someone in the Court of Appeal will identify that fairly quickly on the papers and grant permission. In a case such as this, that is a better outcome than a first instance judge saying there is an arguable point, particularly as I am not remotely persuaded that there is. So permission to appeal is refused.

[92]MR COPPEL: One final matter, my Lord. Can I ask that I be given the usual time from the date that we receive your Lordship's written judgment within which to lodge our appellant's grounds?

[93]MR JUSTICE JAY: Yes. You can have that. So it is 21 days from the date that the judgment is approved and then sent out.

[94]MR COPPEL: I am very grateful, my lord.

[95]MR JUSTICE JAY: As soon as it comes back to me -- I will say nothing about when that is going to happen because the shorthand writers will prioritise their cases as they see fit, not as I see fit, and I do not think this is an urgent case in the run of the cases this court has to deal with -- but as soon as I get the transcript I will read through it, amend it as I think necessary, and you can then consider it in greater detail.

[96]MR COPPEL: We are grateful, my Lord.

[97]MR MAURICI: Thank you, my Lord.

MR JUSTICE JAY: Any other matters?

[99]MR MAURICI: No, my Lord.