England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL

		Royal Courts of Justice Strand, London, WC2A 2LL Wednesday 25th July, 2001

LORD JUSTICE SEDLEY:

DECISION ON PERMISSION TO APPEAL
1. This is a renewed application for permission to appeal (Buxton LJ having refused it on the papers) against Newman J's refusal of permission to apply for judicial review. I have already indicated, and counsel has agreed, that it is a proper case for the exercise of the power contained in CPR 52.15(3) to give permission to apply rather than to appeal if I am satisfied - as in at least one respect I am - that the case is viable.
2. The applicant was failed on Brunel Univeristy's PGCE course because he was said to have failed his repeat teaching practice. He appealed to the visitor, Sir David Keene, on the ground that he had not failed it. This was therefore an unusual case, depending not on academic judgment but on fact. The evidence before Sir David disclosed a lamentable lack of clear record-keeping, with the result that he gave a provisional decision in Mr Jemchi's favour, but gave an opportunity to the university to produce rebutting evidence. Having then reconsidered the evidence as a whole, he concluded that Mr Jemchi had in fact been failed.
3. The present application has been dogged by the interrelation of common law and European Convention on Human Rights arguments, not because the two cannot run in harness but because the visitor's decision was taken before the Human Rights Act 1998 came into force and so cannot be directly criticised for non-compliance. The question remains whether it can be indirectly criticised on that ground.
4. As I indicated to Mr Rabinder Singh when he began his oral submissions, I am satisfied that within his complex written submissions there is a tenable freeestanding argument that, even though the applicant did not ask for an oral hearing or comment on the university's further evidence, it was incumbent on the visitor as a matter of fairness, if he was going to consider departing from his provisional decision in such circumstances, to offer the applicant an oral hearing before reaching a conclusion. This form of challenge is expressly authorised by their Lordships' decision in Page.
5. Thus at common law it is seems to me arguable that -

•    although the applicant has contractual rights to fair and proper assessment, his sole recourse for their enforcement is to the visitor

•    the visitor is therefore under a duty to afford him justice of no less a standard than a court of law

•    while this does not mean that every case must be heard orally, it does mean that an oral hearing must be offered in any case where evidence is finely balanced and presentation and argument may make a critical difference

•    this was such a case.

6. What Page precludes, at least unless and until it is reconsidered in the light of the Convention, is any challenge to the intrinsic rationality of a visitor's decision, which is the second main head of the proposed challenge. The applicant wants to argue that the evidence all went his way, leaving the visitor no room to find for the university. To do this (and certainly if he is to make good his ambitious further argument that Article 6 requires the court to retake the visitor's decision) he has to invoke the Human Rights Act 1998. He has to invoke it, too, if he is to derive support from the Convention and its jurisprudence for the arguments touched on in the foregoing paragraph.
7. The visitor's provisional decision was given on 25 January 2000; his final decision on 7 August 2000. The Act came into force on 2 October 2000, and Newman J's decision postdated it. At the date of the hearing before me the decision of their Lordships' House in Lambert [2001] UKHL 37 was imminent, and while it concerned the Act's retrospectivity in criminal cases, it was possible that its ratio might clarify the effect of s.22(4) on civil and public law proceedings. It has now been given. In the light of it, it is not entirely easy to see what is left of s.22(4); but since the House did not criticise the decision in Wallbank [2001] All ER(D) 212, it may be arguable that the law at present:

(a) excludes the application of the Convention in appeals against pre-October 2000 verdicts, even though the proceedings will have been initiated by a public authority, but

(b) permits the application of the Convention to proceedings brought in reliance on the pre-October 2000 decision of a public authority.

8. Mr Singh, relying on a line of cases of which Kingsley v UK is the most recent, places the present case in a category which depends on the legal continuity of judicial review proceedings with the proceedings impugned in them. From this it would follow that there is no true retrospectivity, given the date of Newman J's decision. But the rationale of these cases is that the state may be unable to establish compliance unless it can show that, by a seamless process, full legal redress was available for violation of a Convention right. It does not create an independent right to review, much less one which is retroactive. The Convention certainly gives a right to a court – but not retrospectively. Only s.22(4) does that, and s.22(4), whatever its ambit, cannot by its terms include the present case, where the pre-October 2000 proceedings were brought by the applicant. The s.6 arguments are now shut out by the majority decision in Lambert.
9. I am therefore not satisfied that this admittedly important limb of the argument has a realistic prospect of success. Subject to what follows, the grant of permission to appeal will be limited to the question whether at common law (from which I do not exclude appropriate reference to the Convention) the applicant was in the particular circumstances of this case entitled to an oral hearing.
10. Nowhere in either skeleton argument, however, is the lateness of this application addressed. Newman J, having noted the issue, and Buxton LJ both decided the application on its legal merits. In the circumstances it must remain open to the respondent, if it is considered appropriate to take the point, to object to the application on grounds of lateness. The case is to proceed as an application for judicial review.
ORDER: Application for permission to appeal granted in part upon the terms indicated in the reasons.PRIVATE  (Order not part of approved judgment) ____________________