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The Cowl case 2001
N.B. The most recent guidelines on ADR and the courts can be found in The Halsey Case 2004 (May 2004).
The case on this page has been included as it has contributed significantly to the development of case law on ADR, but it is no longer definitive.
This means that the Halsey judgement should be read before making a decision about whether ADR should be tried before going any further with the court process.
Cowl and Others v Plymouth City Council
December 2001
In this case, the local council had decided to close down a residential care home for the elderly, and the residents were unhappy with the decision. They applied for permission for a Judicial Review of the council’s decision-making process, and it was refused. They then appealed against this refusal, and the case was heard by Lord Woolf. The appeal was dismissed, meaning that permission for a Judicial Review of the local council’s decision was refused again. A significant factor in Lord Woolf’s decision was the applicants’ failure to take up the council’s offer to set up a complaints review panel. Lord Woolf also suggested that rather than commit themsleves to the costs involved in litigation, both parties should have considered the possibility of mediation.
Lord Woolf made the point that the residents who were complaining about the council’s decision had not paid enough attention to what he called the “paramount importance of avoiding litigation wherever possible”. He suggested that in similar cases, courts might need to hold hearings “at which the parties can explain what steps they have taken to resolve the dispute without the involvement of the court.”
He went on to say: “Particularly in the case of such disputes, both sides must by now be acutely conscious of the contribution alternative dispute resolution could make to resolving disputes in a manner that both met the needs of the parties and the public, and saved time, expense and stress . . . . Today, sufficient should be known about Alternative Dispute Resolution to make the failure to adopt it, in particular when public money was involved, indefensible.”
Note for advisers
In retrospect, the decision to refuse a Judicial Review in this case, and to turn down the appeal against that initial refusal, does seem to present a problem. The local authority offered to set up a complaints review panel to investigate whether they were promised “homes for life”, and to review the local authority’s decisions about the residents. The residents’ concern was that the complaints panel would only review Plymouth’s assessment of their future care needs, rather than negotiate about the original decision to close the home, which was their primary concern. The application for Judicial Review challenged the process by which the decision was taken, in particular the lack of assessment of residents’ needs before making a decision about closure, and also raised human rights issues under articles 2 and 3 of the European Convention on Human Rights.
The complaints review panel, set up to consider the case after the appeal was refused, found that the closure decision had been reached before consultation and assessment of the residents’ needs, and had therefore not met the authority’s own standards. The report by this panel highlighted a number of concerns about the way this case had been handled, including:
- Complaints procedures are not necessarily quicker or cheaper than legislation, as Lord Woolf implied. The convening of the panel, as part of the complaints procedure, took a considerable amount of time, and in fact several of the residents, including Frank Cowl who brought the case, died during the period between the Court of Appeal hearing and the publication of its report.
- The imbalance of power between the vulnerable, frail and elderly residents and a public body with “considerable resources and skills at its disposal” meant that the residents really needed Legal Aid to be represented at the panel hearing.
The judgement by Lord Woolf made it clear that ADR options such as mediation are preferred by the courts, particularly where public money is involved, and it is true that ADR has often been ignored in cases where it could have been beneficial. However, the advice sector has concerns that in some cases, where issues of law are concerned, where delay would be a problem, or where there is a significant imbalance of power, internal complaints procedures or mediation are not necessarily the best option. Since the Cowl v Plymouth case, the Public Law Project has dealt with many cases where Judicial Review has been refused, or Legal Aid has been refused for representation in applying for a Judicial Review, on the grounds that either internal complaints systems, ombudsmen or mediation should be tried first.
This is an issue which agencies need to keep in mind, as more case law is needed in order to develop appropriate principles for courts to follow in this area.
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