England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION (ADMINISTRATIVE COURT)
(MR JUSTICE STANLEY BURNTON)

		Royal Courts of Justice Strand London WC2A 2LL Thursday 24 January 2002

1. LORD JUSTICE BUXTON: This is an application for permission to appeal against the decision of Stanley Burnton J given on 20 July 2001. The judge said, and I agree, that this was a most unfortunate case. He set out the history in considerable detail in his judgment. I do not intend to seek to improve on that. Those passages have not been in any way criticised before me. I would simply say the following.
2. The claimant, Miss Aletta Nash, complains of the second year assessment that she received in her course at the Chelsea College of Art, the respondent. That assessment was made as long ago as May 1998, and was considered by the Board of Examiners of the College in July 1998. Miss Nash complains in substance about the procedure in that extenuating circumstances (that are not necessary to recite) have not been taken into proper account.
3. The College has a detailed procedure for dealing with complaints such as this. The assessment by the Board of Examiners, which was the second time that this matter has been looked at, was reviewed by what it describes as the Academic Committee of the College: who, equally, did not uphold Miss Nash's objection. However Miss Nash was successful in challenging that decision in judicial review proceedings. The decision was quashed by Elias J in May 2000 because, in his view, the Chairman of the Committee had wrongfully made a decision as to the material that should go before the Committee. The Committee was therefore ordered to consider Miss Nash's case again on 20 and 26 June 2000. As the judge said, it might have been thought that with its previous unhappy experience of this case, and of the legal system, the College and its Committee would have taken every possible step to ensure that Miss Nash had no ground whatsoever thereafter to complain about the way things were being managed. However, further complaint was made about the letter of 30 June 2000 sent to Miss Nash. That letter set out the reasons for the Committee's decision, which was unfavourable to Miss Nash. Unfortunately, as identified by the judge and by the solicitors on Miss Nash's behalf, that letter effectively gave no answer to the substantive objections raised by Miss Nash, as opposed to dealing with what she perceived to be alleged procedural difficulties in the way the examination board dealt with her case. It was the judge's view that the letter was an inadequate way of giving reasons.
4. After the College had been informed that proceedings were to be commenced, Mr Cina, the Head of the College (who had not been involved in the decision), wrote on 3 October 2000 listing the College's reasons for rejecting Miss Nash's substantive objections, despite legal advice that there was no duty upon the College to do so. In the judicial review proceedings, Miss Nash submitted that, in a case where reasons should be given, those reasons were not given until the letter of 3 October 2000 which post-dated the actual decision. That decision supplemented the letter of 30 June, but was not written by a member of the Committee and had not been seen by all the members of the Committee. There was evidence of the Chairman of that Committee, Mr Clive Nicholls, the Dean of the School of Design at the College, in which he says that he saw Mr Cina's version and approved it before it was sent out. In Mr Nicholls view it accurately and fully represented the terms of the Academic Committee's decision.
5. The contest before the judge was in the context of the well-known problems identified in the case of R v Westminster City Council, ex p Ermakov [1996] 2 All ER 302 as to whether reasons could properly be given ex post facto in the way that added to the original reasons. The judge concluded, though not by a large margin, that he should accept the letter as giving the reasons for the Committee's decision and that those reasons were in fact adequate. He set out his considerations at considerable length in paragraph 37 of his judgment. In so doing, he found considerable assistance, as I do, in the decision of Laws J, as he then was, in Northamptonshire County Council ex p D [1998] ED CR 14, in which he clearly set out the considerations that the court should have in mind in the light of previous authority. In particular, in this case, it may be noted, without discriminating between the judge's reasons, that there had been no challenge to the good faith of either Mr Cina or of Mr Nicholls. It was open to the College to deal with the matter in the way it did, and not a requirement that every member of the Committee should formally subscribe to the reasons, if indeed the court is satisfied they were the Committee's reasons. Further, and most importantly in my judgement, there is no conflict between the two letters of 30 June and 3 October 2000, but rather the 3 October letter fulfills a hiatus, or lack, present in the earlier letter.
6. This is plainly not a case where any formal question of jurisdiction or vires is mixed up in the question of giving reasons. I would accept that it is desirable in a case such as this that reasons should be given, but this is plainly not a case where the decision can only effectively be taken on the basis of a detailed written document. If the case were otherwise, it would not be possible to give ex post facto reasons. We have to remember, bearing in mind the clear guidance given by Sedley J, as he then was, in R v Higher Education Funding Council ex p Institute of Dental Surgery [1994] 1 WLR 242, that we are not dealing with a local authority but with an academic body, and that any requirement as to reasons is not dispositive of its ability to decide the question at all.
7. The judge, having very carefully considered this matter, and having concluded, again in my judgment quite rightly, that the reasons given in the 3 October letter were adequate for the purpose, it would not be possible for this court to grant permission to appeal. All this court would be doing was repeating the process of assessment and judgement already undertaken by the trial judge, there being no error of law on his part.
8. Since the matter has been before Stanley Burnton J it has taken a different turn. The judge was told that one reason why the letter had not been approved by the full Committee was that it was extremely difficult to assemble the full Committee. It came to the attention of those advising Miss Nash, however, that what was believed to be the relevant Committee had in fact met in March 2001, some months before the hearing before Stanley Burnton J, and it was contended that the judge should have been given an explanation of why the reasons had not been put before the Committee at that meeting. Secondly, after those advising Miss Nash had demanded and received the minutes of the meetings from 3 October onwards, it came to their attention that on 16 October the Committee did in fact meet and received a report in respect of the outcome of the internal appeal of the College. On the basis of that information, it is now contended that what was said to Stanley Burnton J in respect of the practical difficulties was not correct, and that that raises considerable doubts as to whether it was in fact true, as Mr Nicholls had said under oath to the judge, that the letter represented the views of the Members of the Committee. A witness statement filed by Miss Hayley Levine, a trainee solicitor in the employ of Mrs Nash's solicitors, sets out the meetings that had taken place according to the minutes, who was there, and the fact of the meeting of 16 October. Miss Levine says:

"The minutes reveal that something very odd appears to have happened. Having received the letter of 3 October 2000 the applicant's solicitors made clear that they could not accept the letter of 3 October 2000 as additional reasons in part because it had never been approved by the members of the Committee. Mr Gregory Jones as counsel for Ms Nash made this point also at the contested permission hearing before Penry-Davy J on 9 February 2001. Yet, notwithstanding the fact that the Committee was meeting on a regular twice monthly basis the letter of 3 October 2000 is never circulated for approval. It is hard to avoid the conclusion that the other members of the Committee would feel able to approve its contents. It is simply incredible that Mr Cina and Mr Nichols elected not to reveal to the academic committee at the meeting of 16 October the existence of either the judicial review proceedings against the Committee or the letter of 3 October purporting to give the Committee's reasoning."

9. What was said to Stanley Burnton J appears not have to have been true because, to use Miss Levine's words, it is simply incredible that Mr Cina and Mr Nichols had any reason, other than the fact that the Committee might not approve the letter, for not revealing it to the Academic Committee on 16 October 2000.
10. Those serious charges have been met by a further witness statement from Mr Cina in which he sets out in considerable detail the programme of meetings of the Academic Committee. He makes it clear that the Academic Committee only occasionally meets in what might be described as a plenary session, as opposed to meeting for particular purposes. He says that it was correct to say to Stanley Burnton J that it was not practical to consider the letter of 3 October at a Committee before it was despatched. He explains in paragraph 14 of his statement that at the beginning of the academic year various members of the staff were either on leave or heavily engaged in other matters, and that some members of the Committee who had been present at the deliberations in June were not available at all, in particular the two student representatives. He also makes it clear that he was advised that, once the letter had been sent by him with Mr Nicholls approval, it was not necessary to pass it round the Committee when it met on 16 October. As to the meeting on 23 March, he makes it clear that of the eleven members present only three had sat on the special Appeals Committee. For that reason it was not necessary to mention it to Stanley Burnton J.
11. In paragraph 18 he explains the difficulties in circulating the letter to each member of the Committee. He does however end by saying that in view of the criticisms now made that has in fact been done, and that everybody who took the decision in June 2000 has confirmed that the 3 October 2000 letter does indeed represent their true reasons for so thinking.
12. I have to ask myself therefore, whether it is reasonably arguable that, if all these matters had been before Stanley Burnton J when he reached the decision on the grounds that he did, he would, or should, have changed his mind. Like Schiemann LJ who rejected this application on paper, I have no doubt that, when fully explained, these matters could not properly affect the judge's view. It is unfortunate that this material was put forward on the basis of quite explicit suggestions that what Mr Nicholls said, that he was confident that the letter represented the views of the other members of the Committee, was not well-founded. We have no further evidence from him, but I have no hesitation in saying that, in the light of what Mr Cina said, any such suggestion is not justified. There is no reason to think that what Mr Nicholls said on oath, accepted by the judge, is in any way falsified by the material that has now come forward.
13. For that reason I do not think it would be right to say that, because the credibility of the witnesses has been put in issue, this matter should go forward. In my judgement, it has been put in issue on a basis that does not stand up.
14. For that reason, therefore, I do not consider that, having taken full account of all the new material put before this court, the judgment of Stanley Burnton J was in any way ill-founded, and I would not give permission for the matter to proceed to the Court of Appeal.
15. I would say one further thing. Schiemann LJ, and to a lesser extent the judge, drew attention to the fact that, even if Miss Nash were to be successful in these proceedings, that would only have a marginal effect on her overall grade. Like them, I am seriously concerned that considerable public funds have been expended on a matter that, at the end of the day, even if it were made out, would not affect Miss Nash's final degree result. However, I would not decide the case on that basis if I thought that it was otherwise well-founded. As Mr Jones properly said to me, if something has gone wrong and there was an error in public law, the court ought to hesitate before it declines to put it right. Secondly, if the College is misconducting itself in public law, the matter needs to be forcefully drawn to its attention. Thirdly, it is rightly said that, just as judges hesitate to interfere with academic decisions in matters that they know little of, by the same token judges ought to hesitate before concluding in matters they know little of whether or not a particular decision is going to have a conclusive, or any, effect, on the student concerned.
16. I make it clear that I do not decide the case on that basis. I decide it on the basis that no error of law was made by Stanley Burnton J and the basis on which he proceeded is not falsified by the further material put before this court. Permission is therefore refused.
Permission refused. LSC Funding Certificate.