Preliminary conclusions 2

The Ombudsman issues his notification of preliminary conclusions to the parties for comment before issuing a final determination. There is no mention of preliminary conclusions in the relevant legislation. The practice of using them was introduced in the year ended 31 March 1994 on the grounds that it was in the interests of natural justice. The then Ombudsman said this (at p14) in his Annual Report for that year:

"At this stage I have formed a conclusion on the evidence whether or not to uphold the complaint or in whose favour I find the dispute. Hitherto I have gone ahead and issued my determination. My practice now is to draft a statement of the evidence and reasons for my conclusion on a provisional basis; and to send this draft for comment to the trustees, managers or employer (if my provisional conclusion is to uphold the complaint or to find in the complainant's favour in a dispute) or, otherwise, to the complainant.

Mostly the comments on these drafts add nothing new but simply repeat points already taken fully into account. But in some cases the comments raise fresh considerations or include documents not previously submitted. In the light of these, the draft is then to be revised before issue as the determination."

The practice is now to send the preliminary conclusions to all parties regardless of who is going to win or lose in the Ombudsman's provisional view.

The receipt of the preliminary conclusions is usually the first time that the parties see which way the case is going. If the case is going against a party then it is their last chance to convince the Ombudsman of the merits of their case, either by emphasising or correcting some factual aspect or by attacking the line of argument set out by the Ombudsman. The parties have a chance to comment and in some, but not all, cases the Ombudsman takes into account representations in his final determination. This opportunity should not be missed. Where there is a significant change considered appropriate in the light of representations, further preliminary conclusions have occasionally been issued for further review by the parties.

This process of giving parties a draft judgment to comment on is very unusual. Although the European Court of Justice issues an Advocate General's opinion before producing a judgment, the parties are not allowed to comment on it. Domestic courts do not usually issue provisional rulings.

In [1996] OPLR 55, considerable reference was made in argument to the preliminary conclusions but Collins J decided (at p62):

"It seems to me that I can only look at the final determination, because that is the determination against which the appeal lies and it is that determination and its reasons that I have to examine to see whether there is in it an error of law."

The Ombudsman welcomed this approach in his Annual Report 1995/96, saying that it was bad enough that the final determination should be subjected to so much legal analysis without extending the examination to earlier versions.

However, the amendment of a preliminary conclusions in the light of representations from parties has not escaped judicial criticism. In Staughton LJ remarked on such a change to a determination that:

"He [the Ombudsman] inserted in it some eight new paragraphs dealing with matters raised by the individual trustees in their comments. This did not, unfortunately, contribute to clarity. Instead it tended in some instances to introduce obscurity where the provisional determination had been clear."

A case on extensions of time to respond to the Ombudsman's preliminary conclusions arose in relation to a complaint against Legal & General. Legal & General had asked for the extension as its advisers on the matter were on or about to go on holiday. The Ombudsman refused the request, apparently because Dr Julian Farrand was about to step down as Ombudsman and wished to complete the necessary work on the determination.

On a judicial review, the High Court (in R (on the application of ) overturned the Ombudsman's decision saying that there were substantial issues at stake which Legal & General were entitled to take advice on – and from those advisers who had been involved up to that date. The court held that Legal & General would be prejudiced by not being able to have the views of its existing advisers and this prejudice outweighed any detriment suffered by the Ombudsman's office in delaying the matter.

The importance of giving parties the opportunity to respond to preliminary conclusions was highlighted in the case of . The Ombudsman refused Legal & General an extension (as their legal advisers were going on holiday) in responding to his preliminary conclusion. This was overruled by the Court, which held that Legal & General were entitled to the benefits of the views of their existing legal advisers and the prejudice they would suffer in not having the same legal advisers would outweigh any detriment suffered by anyone in delaying the matter.