Wynne v The Office Of The Ombudsman (Approved)

Factual and Procedural Background

The Applicant is the owner since about 2008 of a mid‑terrace property in The City who alleges an historic right‑of‑way across a laneway beside an adjoining property. In or about 2015 that adjoining property was sold; the Applicant alleges that in June 2021 the new owner blocked the laneway, preventing access to the Applicant's backyard. The Applicant applied to Company A for legal aid to bring civil proceedings to establish the right‑of‑way. Company A refused to grant legal aid, citing the exclusion of disputes concerning rights in or over land under the Civil Legal Aid Act 1995 (s.26(2)(b) and s.28(9)(a)(ii)), and obtained a counsel opinion to the same effect.

On 4 January 2025 the Applicant complained to Company B about Company A's refusal and the handling of his application. Company B investigated, obtained the file from Company A and a written response, and on 7 April 2025 issued a decision declining to uphold the complaint, stating there was no evidence the decision by Company A had been improperly made and explaining the Ombudsman's statutory limitations. The Applicant filed a customer service complaint about Company B's handling on 9 April 2025; Attorney Byrne conducted an internal review and concluded on 27 May 2025 that the complaint had been handled in accordance with Company B's procedures.

The Applicant sought leave to bring judicial review proceedings against Company B's decision. The leave application was heard on notice. Judge Barr delivered judgment on 5 March 2026, refusing leave to proceed.

Legal Issues Presented

1. Whether the Applicant has established arguable grounds to obtain leave to judicially review Company B's 7 April 2025 decision on his complaint about Company A.
2. Whether Company B acted unlawfully or unreasonably in the manner it investigated and concluded upon the Applicant's complaint, having obtained Company A's file and counsel's opinion.
3. Whether Company B misdirected itself in relation to exceptions in s.28(9)(c) of the Civil Legal Aid Act 1995 (including s.28(9)(c)(iii) and s.28(9)(c)(i)) when assessing eligibility for legal aid.

Arguments of the Parties

Applicant's Arguments

• The Applicant contended Company A misclassified his application as a property dispute and failed to take account of relevant documents.
• The Applicant asserted Company B failed adequately to investigate his complaint and misunderstood or misapplied exceptions under s.28(9)(c) of the 1995 Act so as to justify legal aid (including that the matter concerned his family home or engaged Family Home Protection Act proceedings).
• The Applicant raised environmental and public safety concerns linked to the access dispute, alleged errors on the folio due to incomplete documentation submitted to the Property Registration Authority, alleged bias, and ongoing harm from loss of access.

Respondent's Arguments

• Company B, by affidavit of Attorney O'Donoghue, stated it obtained the Company A file, received Company A's explanation and counsel's opinion, and investigated the complaint in accordance with its procedures.
• Company B submitted it was statutorily precluded from reviewing the adequacy or correctness of legal services or of counsel's professional legal opinion (First Schedule, Part II, sub‑para. (f) of the Ombudsman Act 1980) and was confined to assessing the reasonableness of Company A's conduct in obtaining and acting on that opinion.
• Company B argued there was no evidence Company A acted improperly, and that the Applicant's broader factual or property disputes were not within the remit of Company B's review of Company A's administrative conduct.

Table of Precedents Cited

Court's Reasoning and Analysis

The court applied the leave test from G v DPP, and the standard of "arguable" from Esme. It emphasized the limited scope of judicial review (per Sweeney v Fahy) — focusing on unlawfulness or legal infirmity in Company B's decision, not re‑examining the merits of Company A's substantive refusal. The court reviewed the affidavits, the Applicant's statement of grounds and exhibits, and Attorney O'Donoghue's affidavit describing Company B's investigative steps. The court accepted that Company B obtained all relevant materials from both parties, considered Company A's reliance on the Civil Legal Aid Act 1995 (s.28(9)(a)(ii)) and the counsel opinion, and assessed Company B's statutory remit under the Ombudsman Act 1980 (including s.4(2) powers and the prohibition in Part II, sub‑para. (f) on reviewing legal services).

The court found Company B was entitled to assess only the reasonableness of Company A's conduct in obtaining and acting on counsel's opinion, and that Company B lawfully concluded there was no evidence Company A had acted improperly. The court rejected the Applicant's contentions about failure to investigate, relevance of environmental/public safety matters, folio errors, alleged bias, and asserted misdirection on s.28(9)(c) exceptions, concluding either those matters were outside Company B's remit or were not substantiated on the evidence. On that basis, the court concluded the Applicant had not established an arguable case of unlawfulness or unreasonableness by Company B.

Holding and Implications

The court refused leave to the Applicant to proceed by way of judicial review against Company B's decision of 7 April 2025.

Implications: The direct effect is that the Applicant may not proceed with judicial review of Company B's handling of his complaint on the basis advanced; Company B's decision stands and the file will be closed. The judgment does not establish a new precedent beyond applying established leave and judicial review principles and confirms the statutory limits on Company B's remit (including inability to review the correctness of legal advice). No broader legal change was pronounced by the court.