England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL
AND AN EXTENSION OF TIME

		Royal Courts of Justice Strand London WC2 Friday, 1st March 2002

1. LORD JUSTICE PILL: The applicant Mr Deman seeks permission to appeal against a decision of Mr Justice Sullivan given in the Administrative Court on 14th August 2001. It was a renewed application, Mr Justice Scott Baker having refused permission on paper.
2. Mr Justice Sullivan refused permission to institute judicial review proceedings against three decisions of the University of Greenwich, the former employers of the applicant. The first was a decision on 17th November 1999 by the Vice-Chancellor of the university to confirm a recommendation of a disciplinary panel that Mr Deman be summarily dismissed from the university's employment. The second is that he seeks to review a decision taken on 8th September 2000 that it would be inappropriate to proceed with an internal university appeal into the dismissal and its circumstances. Third, it is sought to challenge a decision of 10th October 2000 that the university had nothing to add to what was set out in the decision letter of 8th September. The reasons given for the dismissal were that Mr Deman had failed to disclose previous employment at Queen's University Belfast, that he had artificially inflated a statement of earnings and that he had inflated a claim for expenses.
3. The hearing was before a university panel and took place on 10th November 1999. The panel took the view that what was proved constituted gross misconduct. They recommended summary dismissal of Mr Deman from the university and that recommendation was confirmed by the Vice-Chancellor. The claim for judicial review was made on 8th December 2000. That is a very long time after the Vice-Chancellor's decision but three months after the decision of 8th September in which an internal appeal is alleged to have been declined. It was very much out of time in relation to the earlier decision. But I would not exclude on the ground of delay - for present purposes the consideration of permission - the lapse of time between the decision of 8th September and 8th December when the application was made.
4. Mr Justice Sullivan set out matters in a way which I find wholly acceptable and which should be read along with my judgment. I do not propose to cite at length the reasons given by Mr Justice Sullivan.
5. The grounds of appeal proposed are, first, that the judge erred in refusing permission; second, that he erred in not considering Mr Deman's medical evidence; third, that he did not consider, or consider sufficiently, Mr Deman's right to be heard at the disciplinary hearing in November 1999; fourth, that the judge had erred in failing to have regard to Article 6 of the European Convention on Human Rights; fifth, that the judge had erred in failing to consider authorities; and, sixth, that the denial of livelihood which the dismissal involved was a shock to the judicial conscience by reason of breaches of the rules of natural justice, fair hearings and human rights.
6. Mr Deman did not appear before the disciplinary panel and claimed that he was unfit to do so. In lengthy written submissions Mr Deman has claimed that the dismissal and the denial of an appeal are susceptible to judicial review. The fact that a remedy could be sought before the Employment Tribunal was no bar to proceedings by way of judicial review. It is submitted that the applicant should have been given an opportunity to meet the Vice-Chancellor. Moreover he had been sick for many months and that accounted for the delay in his instituting proceedings. He was without legal advice for some time.
7. He has submitted to this court a further skeleton argument in which fresh points are raised in relation to the constitution of the disciplinary panel. It is stated in paragraph 12 of the argument:

"The two grounds under which the appellant seeks judicial review are the illegality of the decision making power of the disciplinary panel and the confirmation of the panel's recommendation by the Vice-Chancellor as well as the decision not to hold an internal appeal hearing when the appellant finally communicated his willingness to attend, and the procedural impropriety involved alleged breaches of the rules of natural justice."

8. It is submitted that there is a substantial degree of procedural impropriety in the manner in which the disciplinary panel was set up and particulars are given of that.
9. In my judgment, it is much too late to attempt to challenge the manner in which the disciplinary panel was set up and to challenge the procedure by which it reached its decision in November 1999. Moreover I agree with the view of Mr Justice Sullivan that the disciplinary panel was, in the circumstances, entitled to proceed in the absence of the applicant. They gave their reasons for that. They were aware of the fact that Mr Deman had a doctor's certificate in relation to his duties at the university, but they were entitled to hold that because he had been sufficiently well to conduct other professional business, including attendance at an Employment Tribunal on 12th October, he could, had he wished, have been present before the disciplinary panel. In my judgment he has not been deprived, in the circumstances, of a fair hearing and the panel were entitled to take the view which they did.
10. What Mr Deman has emphasised in his oral submission is his concern for academic freedom which he submits is challenged by the dismissal of himself and others from the University of Greenwich. He has also complained orally of lack of independence in university disciplinary procedures. It is not for me upon this application to conduct an inquiry into the entire procedures of universities with respect to academic freedom or to consider the position of the University of Greenwich in particular, save insofar as material issues are raised upon this application. I have referred to the very long delay which has occurred before action was taken as to the setting up and conduct of the disciplinary panel, and even more so as to the additional allegations which are now made.
11. One point which has been considered by the judges who have heard the applications is the availability of an alternative remedy. Mr Justice Scott Baker said on paper:

"Your remedy, if you have one, is in the Employment Tribunal where you already have litigation involving the same issues."

12. I agree with the comments both of Mr Justice Scott Baker and Mr Justice Sullivan on that subject.
13. There remains the question arising from the letter of 8th September, complaint about which I have accepted for present purposes was made in sufficient time when this application was commenced. In the bundle of documents which the applicant has helpfully prepared he has set out the relevant correspondence in the latter part of 1999 and the early part of 2000. At that time the applicant was represented by a firm of solicitors who were in correspondence with the university in relation to a proposed appeal against the dismissal. A number of detailed matters were raised. It is clear that a date was fixed for an appeal hearing. The date fixed was 24th January 2000. The identity of the panel members was mentioned in the letter. An adjournment was requested by Kirk & Partners. They also raised a number of other points in a letter of 17th January 2000. The letter by way of reply attempted to deal with some of the points and concluded by stating (page 247):

"I look forward to hearing from you in the near future, and no later than midday of 21st January, whether you will be able to present your case on 24th January."

14. A further request was made that the case be adjourned for a period of at least two weeks.
15. On 8th February however the solicitors wrote to the university domestic bursar stating that Mr Deman had withdrawn instructions from them to act on his behalf and he would now be acting in person. It was requested that any further correspondence be directed to him. Nothing was heard from the applicant for a very long time until August 2000, by which time Kirk & Partners were again acting and a hearing date was requested. A letter of 8th August stated:

"We confirm that our client does still wish the appeal to be fixed for hearing."

16. In my judgment the delay in attempting to pursue the remedy is, in the circumstances, fatal to the applicant's case. He was offered a date in January 2000. He must have been aware of the importance in procedures of this kind of acting promptly if a right of appeal is to be exercised. Universities have to make their staffing and budgetary arrangements and to consider what steps are to be taken following the dismissal of a member of staff. If he seeks to be reinstated he must act promptly. In my judgment the university were entitled to take the view they did in September 2000 which was to state that it was too late for the matter to proceed. By letter of 8th September they stated:

"You will know from documents relevant to his case"

(that is addressed to solicitors)

"that the University places major importance on dealing promptly with disciplinary matters. There has been no response to a request for convenient hearing dates for more than seven months. Given that the dismissal took place more than nine months ago, it is now considered that your current request is out of reasonable time."

17. Reference is also made to the proceedings which had been commenced before the Employment Tribunal. In my judgment it is not arguable that upon judicial review the decision of 8th September, confirmed in October 2000, would be quashed in the courts. It is not arguable that the earlier decision would be quashed, and a complaint against it was, in any event, very much out of time and would be defeated on that ground.
18. I bear in mind what the applicant has said about his ill health during the year 2000. I see no arguable case that this court would intervene to quash any of the decisions complained of. For the reasons I have given and for those given by Mr Justice Sullivan in his judgment of 14th August I would refuse this application.
Order: Application refused