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Clarke v The Office Of the Ombudsman (Approved)
Factual and Procedural Background
These judicial review proceedings were brought by the Applicant against the Respondent (the Office of the Ombudsman) challenging the Respondent's decision not to uphold a complaint about a Re-Works Notification ("RWN") issued by Company A concerning a €2,400 solar PV grant for a micro-inverter system. Company A required installation of an automatic emergency isolation/shunt switch under its Solar PV Scheme Code of Practice. The Applicant disputed that requirement, relying on Company B material and his interpretation of section 712.537.4.1 of I.S. 10101. The Applicant internally challenged Company A's RWN, then complained to the Respondent, whose finding (25 February 2025) accepted Company A's position and did not undertake an independent technical assessment.
Two interlocutory applications came before Judge Phelan: (i) for a protective costs order (PCO) and (ii) for discovery of communications between the Respondent and Company A. The Applicant is litigating in person. The High Court (Judge Bolger) initially refused leave for judicial review on 7 July 2025; the Court of Appeal granted leave on 17 November 2025. The judicial review concerns the Respondent's administrative handling of the complaint rather than Company A's substantive technical decision.
Legal Issues Presented
- Whether the Respondent lawfully declined to engage in substantive technical interpretation of I.S. 10101 and instead accepted Company A's position as that of the competent authority.
- Whether the Respondent was obliged, under s. 8(2) of the Ombudsman Act 1980, to disclose to the complainant all communications between the Respondent and Company A and to permit the complainant to comment on Company A's responses.
- Whether the Respondent's investigatory procedures complied with constitutional fair procedures, natural justice and Article 6(1) ECHR.
- Whether the Applicant is entitled to a protective costs order given alleged public importance, resource imbalance and arguability of the claim.
Arguments of the Parties
Applicant's Arguments
- The Respondent wrongly refused to determine the substantive interpretation of I.S. 10101 and failed to engage with key technical evidence (including Company B/NSAI certificates) and legal arguments (estoppel, misrepresentation, irrationality).
- The Respondent breached fair procedures and Article 6(1) by not showing the complainant all material submitted by Company A and by not allowing comment on all evidence before finalising its finding.
- Section 8(2) required the Respondent to put the Applicant's allegations to Company A; discovery of Respondent–Company A communications is necessary to verify compliance with that duty.
- The case raises issues of public importance affecting many solar grant recipients and Ombudsman complainants; the Applicant therefore sought a PCO and argued the case is meritorious and resource disparity justifies costs protection.
Respondent's Arguments
- The Respondent's remit is to review administrative handling, not to adjudicate technical engineering disputes; investigations are inquisitorial and within broad statutory discretion under the 1980 Act.
- S. 8(2) secures an opportunity for the reviewable agency to comment; it does not create a reciprocal entitlement for complainants to receive and comment on all agency responses.
- Relevant material was disclosed to the Applicant (including a Company A response dated 23 December 2024) and the Applicant was invited to comment; further discovery is unnecessary and would be a fishing expedition.
- The proceedings are essentially a private dispute about a modest grant; they do not meet the exceptional threshold for a PCO, and the Applicant has not shown sufficient merit or public importance to justify departing from normal costs rules.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Child and Family Agency v. Guardian Ad Litem [2026] IEHC 88 | Recognised the Court's jurisdiction to grant a protective costs order and identified guiding factors for PCOs. | The Court applied the factors from this authority and concluded the Applicant did not satisfy the criteria for a PCO. |
| R (M) v Commissioner for Local Administration in England [2006] EWHC 2847 (Admin) | Illustrates the broad statutory discretion of Ombudsman-type bodies and that courts should not convert judicial review into an appeal on merits. | The Court treated this and similar UK authorities as informing arguability but held they did not establish entitlement to a PCO. |
| AB against The Scottish Public Services Ombudsman [2025] CSOH 48 | Similar proposition regarding Ombudsman discretion and limits of judicial review in technical matters. | Used to support the view that Ombudsman discretion is reviewable but does not automatically justify a PCO or wide discovery. |
| Wynne v Office of the Ombudsman [2026] IEHC 123 | Argued to show the Ombudsman's role may extend to considering whether a public body acted in accordance with procedures, policies, legislation and regulations. | The Court noted the authority but found it did not establish entitlement to costs protection in this case. |
| Permanent TSB v. Skoczylas [2021] IESC 10 | Supports proposition that normal costs rules encourage responsible litigation and deter weak claims. | The Court relied on this principle in declining to make a PCO as public funds should not ordinarily insure ordinary litigants' costs risk. |
| Browne v. An Taoiseach [2023] IEHC 205 | Affirms role of costs rules in deterring unmeritorious proceedings and promoting responsible litigation. | Invoked to support refusal of a PCO. |
| Elsharkawy v Minister for Transport [2024] IECA 258 | Principle that public bodies must observe a duty of candour in judicial review ("cards face upwards"). | The Applicant relied on it to argue for disclosure; the Court considered the duty but found discovery was unnecessary at interlocutory stage. |
| McEvoy v. An Garda Síochána Ombudsman Commission [2015] IEHC 503 | Supports disclosure where documents may shed light on fairness of investigative processes; sets principles limiting discovery in judicial review. | The Court acknowledged the authority but held the Applicant had not shown discovery was necessary for fair determination of pleaded issues. |
| McDonncha v Minister for Education & Skills [2018] IESC 50 | Relevant to substantive fair procedures issues; cited by Applicant. | The Court held it did not justify discovery at the interlocutory stage. |
| Heather Moor & Edgecomb Ltd (No. 2) v United Kingdom App. No. 1550/09 | ECHR authority on Article 6 standards and procedural fairness in administrative-type processes. | The Court noted it may bear on substantive questions but does not require discovery where the legal question can be decided on the pleadings and exhibited materials. |
Court's Reasoning and Analysis
The Court addressed the PCO and discovery applications separately.
On the PCO application the Court applied the criteria in Child and Family Agency v. Guardian Ad Litem. The Court reasoned that:
- This litigation is essentially a private dispute about the Applicant's own grant and installation (a modest €2,400), not public-interest litigation of the exceptional character required for a PCO.
- The Applicant did not demonstrate sufficient public importance or a likelihood of broader public benefit; relevance to others does not of itself satisfy the threshold for a PCO.
- The merits and general utility of the proceedings were questionable: the Ombudsman's finding was non-binding, the Scheme's terms were clear and agreed by applicants, and there was no evidence of other affected applicants.
- Resource inequality between a State-funded respondent and an individual applicant does not of itself justify transferring costs risk to the taxpayer; normal costs rules deter unmeritorious litigation.
On the discovery application the Court reasoned that:
- S. 8(2) of the Ombudsman Act 1980 requires the Respondent to afford the reviewable agency an opportunity to comment on allegations, but the statutory wording does not expressly confer on complainants a reciprocal automatic right to receive and comment on all agency communications.
- Judicial review discovery is limited: it must be demonstrably relevant and necessary for fair determination of pleaded legal issues; discovery is not a fishing expedition to search for new grounds of challenge.
- The Applicant had access to the principal Company A response exhibited in the proceedings and the Court could determine the legal questions (fairness, compliance with s. 8(2), and scope of the Respondent's remit) on the existing record, correspondence and affidavit evidence; further broad disclosure was unnecessary.
- The Applicant had not identified external material suggesting affidavit evidence was materially inaccurate; absent such material, going behind affidavits by extensive discovery was unjustified.
Holding and Implications
DISPOSITION: Both interlocutory applications are refused. The Applicant's application for a protective costs order is refused and the Applicant's application for discovery of all communications between the Respondent and Company A is refused.
Implications: The direct effect is that the Applicant proceeds without a PCO and without the ordered discovery; the substantive judicial review will continue on the existing record and the Court will hear parties on any consequential matters. The ruling does not purport to establish a new general principle expanding entitlement to PCOs or discovery beyond the established tests; the decision treats these refusals as case-specific applications of settled principles regarding PCOs and limited discovery in judicial review.
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