England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		5 July 2002

Mr Justice Silber:

Introduction

1. Wing Kew Leung (“the claimant”) challenges the decision of Imperial College of Science, Technology and Medicine (“the college”) to classify him as an overseas student, rather than as a home student, for the purpose of the Education (Fees and Awards) Regulations 1997 (“the Regulations”). The significance of that classification is that the Regulations permit certain educational institutions, including the college, to charge higher fees for those students, who have been classified as overseas students rather than home students under the Regulations. Those who are regarded as home students for fee charging purposes include those who are settled in the United Kingdom and who also meet the residence conditions in Paragraph 9 of Schedule 1 of the Regulations.
2. A condition in Paragraph 9 of the Schedule of the Regulations, which is of central and crucial significance in determining the status of the claimant in this case, provides that a person meets the residence conditions in Paragraph 9 which, with my emphasis added, provides that:-

“(b) [the student’s] residence in the United Kingdom.. has not during any part of [the three year period preceding the relevant date].. been wholly or mainly for the purpose of receiving full-time education”.

3. The Regulations make it clear that “the relevant date” for determining a student’s status for classification of the fee purposes is 1 September, 1 January or 1 April, closest to the beginning of the first term of the student’s course (Regulation 4(6)). In the case of the claimant, it is common ground between the parties that first, the relevant date for determining his status was 1 September 2000 and second, that his fee paying classification for the duration of his course was settled once and for all by the determination of his status as on that date. Mr. McManus QC, who appears with Mr. Adam Solomon for the claimant, says that if the claimant had been classified as a home student rather than as an overseas student, he would have saved about £9,000 in each year of his course at the college. In order to understand the rival submissions, it is necessary now to set out in outline some of the relevant chronology leading up to the making of this application.

The Chronology

4. The claimant was born in Hong Kong in December 1980. He, together with the rest of his family, was granted British citizenship in May 1995, which was the year when his parents left the United Kingdom where they had worked since 1972 in order to return to Hong Kong. They retained their property in London at 33 College Road, Wembley, which was occupied by the claimant’s aunt. The parents of the claimant retained contact with the United Kingdom and they visited this country every summer. The claimant’s older brother Yu Kew Leung (“Yu”) left Hong Kong to live in the United Kingdom in August 1990 and in May 1995, he became permanently settled in this country.
5. In August 1995, when the claimant was fourteen, he left Hong Kong where he had previously been at school to come to the United Kingdom, where he enrolled in September 1995 at Merchant Taylor’s School in Northwood as a boarder. Shortly after the claimant arrived in this country, his parents purchased a house in Northwood (“the Northwood house”), which was occupied by Yu, the claimant and his aunt, who was also the claimant’s guardian. Although he lived very close to Merchant Taylor’s School, he has explained that he was a boarder there because his parents were keen for him to experience communal life.
6. In 1996, Yu commenced a three-year Biochemistry degree course at the college and he was classified as a home student for fee purposes. In September 1999, the claimant applied for places at the college and at a number of universities in the United Kingdom and on his UCAS application form, he gave the Northwood house as his permanent address. In November 1999, the claimant was asked by the college to complete a supplementary questionnaire and he duly did so. On 30 November 1999, the claimant received a conditional offer from the college of a place for a course starting in October 2000, which was dependent upon the claimant obtaining certain high grades in his Advanced Level examinations, which he was due to sit in Summer 2000. The claimant’s conditional offer was not dependent on his fees status and he later accepted the offer. On 2 December 1999, the college wrote to the claimant (“the December 1999 letter”), and told him that he had been classified as an overseas student for fee purposes. No complaint was made by the claimant about this classification until more than nine months later.
7. In May 2000, the claimant received a letter from the college, which confirmed his acceptance of the conditional offer that had been made to him, and it also informed him again that he had been classified as an overseas student for fee purposes. The college also asked him to sign and return a Financial Statement, which he did on 29 May 2000. The Financial Statement simply confirmed that he had adequate funds to cover the tuition fees of an overseas student. He satisfied the conditions for obtaining his place at the college, which duly offered him an unconditional place in August 2001 and the college also sent the claimant a certificate stating that he had been accepted for admission and that his “classification for fee purposes” was “overseas”.
8. In the last week of August 2000, the claimant decided to take up his place at the college but by a letter dated 28 September 2000, he informed the college for the first time why he believed that the college had classified him incorrectly as an overseas student. In October 2000, the claimant duly commenced his course at the college.
9. On 15 December 2000, the college wrote (“the December 2000 decision letter”) to the claimant explaining that he had been correctly classified as an overseas student. This letter, to which I will have to refer to in greater detail later, expressly relied on advice offered by the Department for Education and Employment.
10. On 1 March 2001, the claimant wrote to the college (“the March 2001 letter”) and he reiterated his case that he should be treated as a home student explaining that he had come here to settle and not for the purpose of receiving full-time education and stating that he lived three minutes walk from the school; he urged reconsideration of the college’s decision. On 6 September 2001 the college wrote (“the September 2001 decision letter”) to the claimant explaining that it had considered the information sent by him and stated that its decision on his status remained unchanged. The present judicial review application was commenced in 2001. On a paper application, Sullivan J refused to give the claimant permission to proceed on this application but subsequently, Collins J allowed the claimant’s renewed application for permission after an oral hearing.

The grounds of challenge

11. Mr. McManus QC for the claimant accepts that he cannot challenge the decision of the college to classify the claimant as an overseas student in the December 2000 decision letter or in the September 2001 decision letter as Wednesbury unreasonable, but the claimant’s challenge to the decision of the College is now, after re-amendment at the start of this hearing, based on errors allegedly committed by the college in the form of misdirections, unfairness, a failure to apply the proper burden of proof and to take account of relevant considerations. Many of these challenges overlap with each other.
12. There are four alleged misdirections and in the words of the claimant’s skeleton, they are:-

a. that the college is alleged to have misdirected itself by failing “to determine at the time whether the claimant was telling the truth when he said he came to the UK to settle”;

b. applying an approach of whether it was reasonable to regard the claimant as in the UK wholly or mainly for the purpose of receiving full-time education.

c. regarding paragraph 57 of the Government Guidance as determining the issue against the claimant because he was at boarding school.

d. adopting an approach of “strict” construction of the regulations.

13. I will consider the complaints of the claimant in turn but it would be useful first to describe what material was before the college when it made the decisions of which complaint is now made. It would then be sensible to consider and determine three specific legal issues, which will arise on a number of occasions during my analysis of the claimant’s complaints

Material before the college

14. In order to consider the challenges to the decisions of the college, it is necessary to specify and describe the material, which was before the college when it made its decisions under challenge to classify the claimant as an overseas student. In common with all other applicants for a university place, the claimant had to fill in a UCAS form, in which he gave the Northwood house as both his correspondence address and as his home address. He stated that his country of birth was Hong Kong and that his area of permanent residence was in Northwood, Middlesex. He had to insert two codes on the UCAS form, which are of some relevance. The first was to describe his “residential category”, which was obviously significant for the purpose of deciding whether he complied with the residence requirements in order to be classified for fee purposes as a home student. It was explained in the explanatory notes to the UCAS form that there were a number of possible categories of which Category ‘A’ was designated for applicants, who were “UK/EU National or child of, ordinary resident for three years in [European Economic Area], not for purpose of full-time education”. There were other categories as well as a final and residual category, with the distinctive category letter ‘O’. The claimant selected Category ‘O’ as being his appropriate category, rather than Category ‘A’ which would have been the correct category for a student, who complied with the residence requirements which would have enabled him to be classified for fee purposes as a home student. The claimant has in the course of these proceedings explained why he made that choice, but that explanation was not before the college when it made its decisions and so it must be ignored when deciding if the college’s decisions can be impugned.
15. The second code said to be of significance on the UCAS form was the ‘Fee Code’ which indicated how the claimant expected that he would pay his tuition fees. It was explained in a note to the UCAS form that the majority of UK and EU applicants would be in category ‘O2’ which was designated as covering students “applying for assessment of eligibility for tuition fee contributions to Local Education Authorities. Student Awards Agency for Scotland.. Northern Ireland Education and Library Board of DfEE”. Category ‘O2’ was duly selected by the claimant as being appropriate for him and it was inserted by him on his UCAS form.
16. The claimant was then asked in a letter dated 28 October 1999 to fill out a supplementary questionnaire as the college “require[d] additional information to enable us to determine your fees status”. The claimant was also asked to enclose “copies of any relevant documents confirming the details you have given on this form, e.g. a Home Office letter and/or passport entries”.
17. The claimant duly completed and returned to the college the questionnaire stating that his permanent address was the Northwood house, that his parents had lived in the United Kingdom for short periods in the 1970s but that their current permanent address was in Hong Kong, that his nationality was British, that he had lived in Hong Kong until July 1995 (when he was aged 14) and that his reason for living in the United Kingdom was “as country for residence i.e. to settle”. Section D of that form provided a space for “Additional Information” stating:-

“Give below any additional information about yourself, your family or your circumstances which you believe to be relevant, but which is not covered by your answers to questions elsewhere on this form”.

18. The claimant did not provide any further information or supply any documents with his completed form. He also signed a declaration that the information supplied on the form was “accurate and complete”. On the basis of the information received, the college concluded that the claimant should be treated as an “overseas student” and it informed him of this conclusion in the December 1999 letter. It explained that the college took the view of the claimant that “if [his] parents were not resident in the EU but are presumably supporting [him] from Hong Kong, then [he] must be here mainly for the purposes of education”.
19. The claimant did not raise any query or make any complaint in respect of this classification but he subsequently accepted the conditional offer of admission. He was later informed by a letter of 4 May 2000 that he had been classified as an “overseas student” and he was sent a copy of the guidelines used by the college for determining the classification of the students. That letter concluded by stating that:-

“If, after studying these guidelines, you wish to appeal against your classification as an overseas student, you should write to me clearly setting out the basis of your appeal and send appropriate documentary evidence in support of your claim”.

The claimant did not appeal or object to this classification but he signed a letter on 29 May 2000 in which he accepted responsibility for payment of the college’s fees. It has correctly not been suggested that this constituted an acceptance by him of his overseas status.

20. After the claimant achieved in his Advanced Level examinations the grades required by the college to satisfy his condition of admission, he received a letter of 17 August 2000 from the college confirming his place and as well as a certificate from the college stating that the claimant had been accepted for admission as an undergraduate at the college with his “classification for fee purposes” being “overseas”.
21. The first occasion on which the claimant contested his classification as an overseas student was in his letter to the college dated 28 September 2000, which was apparently two days before the beginning of his first session as a student at the college and nine months after he had been told in the December 1999 letter of this classification. In this letter, the claimant explained that he was and that he had been resident for over three years in his own right in this country and that during that time he had received full-time education. He disputed that he was, in the words of the Regulations, resident “for the purpose of receiving full-time education”. He also said that the status of his parents as Hong Kong residents was irrelevant to his status.
22. The claimant also explained that he had acquired British citizenship through the British Nationality (Hong Kong) Act 1990 and that he was a British citizen in his own right. He stated that since 1995, he had left Hong Kong to be settled in the United Kingdom and that he had lived in his parents’ house in London with his aunt and with his elder brother since he had arrived in England. He added that his parents were subject to United Kingdom taxes. He also stated that his elder brother, Yu, had been an undergraduate at the college between 1996 and 2000 where he had been classified for fee purposes as a home student by the college “under circumstances identical to my own”.
23. The college treated this letter as an internal appeal against the December 1999 letter. In the December 2000 decision letter, Mr. David Atkins, the Senior Assistant Registrar at the college, wrote to the claimant to state that his appeal had been unsuccessful as the claimant had been in the United Kingdom “wholly or mainly for the purpose of receiving full-time education” and that therefore he did not come within the categories of students in the Schedule to the Regulations, who could not be charged higher rates. The letter also referred to the advice issued by the Department of Education and Employment entitled The Education (Fees and Awards) Regulations 1997 as amended Guidance on Fees (“the Government Guidance”), to which I will have to refer in greater detail later.
24. The claimant duly appealed and in the March 2001 letter, he explained to the college why he was dissatisfied with its decision. He pointed out that his parents had sent him to Merchant Taylor’s School as a boarder mainly because they wanted him to “experience community life” and that the Northwood house owned by his parents was “a three minute walk away from the school”. In essence, he was contending that he had come to this country to settle and not to obtain full-time education. He asked the college to reconsider its decision to classify him as an overseas student. In the September 2001 decision letter, Mr. Atkins wrote to the claimant explaining that he had considered the information supplied by the claimant but that the college’s decision that he was an overseas student remained unchanged.
25. It is appropriate at this stage before I analyse the challenges of the claimant to the decision letters to comment on three general legal points, which will arise on a number of occasions when I consider the rival submissions of counsel in this case.

Three general legal points

(i)Subsequent reasons given after judicial review application is brought

26. It is appropriate at this stage to consider the contention of Mr. McManus that the college cannot rely in these proceedings on assertions in the witness statements of two officers of the college, who after the present application had been instituted gave reasons for the college’s decision to classify the claimant as an overseas student in their witness statements but which were not contained in the decision letters. Mr. McManus’ starting point is R v. Westminster City Council, ex parte Ermakov [1996] 2 All ER 302, which concerned a decision by a local housing authority that the applicant was homeless, where the local authority had a statutory duty to give reasons for its decision (Housing Act 1985 s.64 (4)). It did so, but later it:-

“… put forward entirely new reasons, completely at odds with those given in the letter. Moreover, they put forward those new reasons five or six months after the decision letter had been sent and of course, only after judicial review proceedings had been launched” (page 309a).

27. Hutchison LJ had to consider whether the new reasons were admissible and he summarised (with my emphasis added) his approach, with which Nourse and Thorpe LJJ also agreed, as follows:

“(1) It is unrealistic to seek to draw any significant distinction, in the context of s.64, between the decision and the communication of the decision with reasons, or to treat the giving of reasons as purely procedural. In reaching this conclusion I am influenced by the fact that the section in terms requires reasons to be given at the same time as the decision is communicated; by Schiemann J’s observations in Ex p Shield; and by the many cases in which such decisions have been quashed for inadequacy of reasons.

(2) The court can and, in appropriate cases, should admit evidence to elucidate or, exceptionally, correct or add to the reasons; but should, consistently with Steyn LJ’s observations in Ex p Graham, be very cautious about doing so. I have in mind cases where, for example, an error has been made in transcription or expression, or a word or words inadvertently omitted, or where the language used may be in some way lacking in clarity. These examples are not intended to be exhaustive, but rather to reflect my view that the function of such evidence should generally be elucidation not fundamental alteration, confirmation not contradiction. Certainly there seems to me to be no warrant for receiving and relying on as validating the decision evidence – as in this case – which indicates that the real reasons were wholly different from the stated reasons. It is not in my view permissible to say, merely because the applicant does not feel able to challenge the bona fides of the decision-maker’s explanation as to the real reasons that the applicant is therefore not prejudiced and the evidence as to the real reasons can be relied upon. This is because, first, I do not accept that it is necessarily the case that in that situation he is not prejudiced; and secondly, because in this class of case, I do not consider that it is necessary for the applicant to show prejudice before he can obtain relief. Section 64 requires a decision and at the same time reasons; and if no reasons (which is the reality of a case such as the present) or wholly deficient reasons are given, he is prima facie entitled to have the decision quashed as unlawful.

(3) There are, I consider, good policy reasons why this should be so. The cases emphasise that the purpose of reasons is to inform the parties why they have won or lost and enable them to assess whether they have any ground for challenging an adverse decision. To permit wholesale amendment or reversal of the stated reasons is inimical to this purpose. Moreover, not only does it encourage a sloppy approach by the decision-maker, but it gives rise to potential practical difficulties. In the present case it was not, but in many cases it might be, suggested that the alleged true reasons were in fact second thoughts designed to remedy an otherwise fatal error exposed by the judicial review proceedings. That would lead to applications to cross-examine and possibly for further discovery, both of which are, while permissible in judicial review proceedings, generally regarded as inappropriate. Hearings would be made longer and more expensive” (page 325).

28. More recently, in R (Nash) v. Chelsea College of Art [2001] EWHC Admin 538, Stanley Burnton J considered these comments and the circumstances in which late reasons for earlier decisions can be accepted by the court and he said [34] that the approach to such reasons should be that:-

(i) Where there is a statutory duty to give reasons as part of the notification of the decision, so that (as Laws J put it in Northamptonshire County Council ex p D) “the adequacy of the reasons is itself made a condition of the legality of the decision”, only in exceptional circumstances if at all will the court accept subsequent evidence of the reasons.

(ii) In other cases, the court will be cautious about accepting late reasons. The relevant considerations include the following, which to a significant degree overlap:

(a) Whether the new reasons are consistent with the original reasons.

(b) Whether it is clear that the new reasons are indeed the original reasons of the whole committee.

(c) Whether there is a real risk that the later reasons have been composed subsequently in order to support the tribunal’s decision, or are a retrospective justification of the original decision. This consideration is really an aspect of (b).

(d) The delay before the later reasons were put forward.

(e) The circumstances in which the later reasons were put forward. In particular, reasons put forward after the commencement of proceedings must be treated especially carefully. Conversely, reasons put forward during correspondence in which the parties are seeking to elucidate the decision should be approached more tolerantly.

To these I add two further considerations. The first is based on general principles of administrative law. The degree of scrutiny and caution to be applied by the court to subsequent reasons should depend on the subject matter of the administrative decision in question. Where important human rights are concerned, as in asylum cases, anxious scrutiny is required; where the subject matter is less important, the court may be less demanding and readier to accept subsequent reasons.

Secondly, the court should bear in mind the qualifications and experience of the persons involved. It is one thing to require comprehensiveness and clarity from lawyers and those who regularly sit on administrative tribunals; it is another to require those qualities of occasional non-lawyer tribunal chairmen and members”.

29. I respectfully agree but I would also add to Stanley Burnton J’s list of relevant factors two additional ones. The first is whether the decision-maker would have been expected to state in the decision document the reason that he or she is seeking to adduce later. The reason for considering that factor is that the court will not accept a reason stated after the initial decision was given if, for example, it considers that it is unlikely to be true and that exercise entails considering whether the omission of that reason from the original reasons was excusable. If it is, then the court should be less reluctant to exclude it than if there is no excuse for the decision-maker failing to mention the new factor in the original reasons. In addition, the policy reasons for not permitting later reasons to be adduced as described by Hutchison LJ include the need for parties to know at the time of a decision why they have won or lost and to discourage sloppy decision making, but those arguments are less potent when there was no need for reasons to be given when the original decision was made.
30. The second additional and perhaps over-arching factor is whether it would be just in all the circumstances to refuse to admit the subsequent reasons of the decision-maker. So if there was no need for a decision to contain reasons, it might be strange if on the facts of a particular case, later reasons could not be adduced to meet a challenge on grounds of, say, a misdirection, unfairness or inconsistency. If this were not so, there might in some cases be unfairness between the parties as the decision-maker could not defend himself. Obviously the application of principles of fairness would also enable the court to reach a decision on the cogency of and weight to be given to the new reasons.
31. In applying Stanley-Burnton J’s principles to the attempt by the college to explain long after the event their decision in this case to classify the claimant as an overseas student, Mr. McManus places weight on three main factors, as justifying a conclusion that the reasons now given by the college’s decision-makers should not be admitted. First, he says that I have to be cautious about accepting the reasons for the college’s decision specified in the witness statements of the college’s officers because of the substantial delay between, on the one hand, the making of the witness statements in March 2002 and, on the other hand, the December 2000 and the September 2001 decision letters. He contends that this delay militates against the court admitting and attaching weight to the reasons in the subsequent witness statements of the officers.
32. Second, Mr. McManus points out that these explanations in the witness statements were only given after the present proceedings had started and so they should be treated with caution. Third, the college’s decision-makers had no notes of how the decisions in the two decision letters were arrived at and this, Mr. McManus says, is important as they probably dealt with very many applications between the time of the decision letters and the making of the witness statement. Thus Mr. Atkins might not be giving the true reasons for the decisions in his witness statement.
33. I accept these submissions as being factors to which I have to give substantial weight as I do the contrary submission of Mr. Ward that comprehensive reasons are not to be expected in decision letters of this kind, especially as they are written by non-lawyers who are not performing judicial functions.
34. I also agree with Mr. Ward’s two further submissions that first, this case is not concerned with human rights and so I should be less reluctant to accept reasons than if it was and second, that the reasons in the witness statement are consistent with the original decision letters and certainly are not as in the Westminster case “wholly different from the stated reasons”. I also consider it significant that I would not have expected the college’s officials in their decision letters to set out their full reasoning process in which it had engaged as if answering a pleading or writing a judgment and that it is understandably excusable that they did not do so until the present litigation required them to do. This factor is particularly significant as the purpose of the reasons in the witness statements was to elucidate reasons, which seem cogent and consistent with what was in the decision letters. There was nothing illogical or intrinsically unlikely about the explanations contained in the witness statements of the college’s officers. I will consider each statement sought to be relied on by the college in the light of these factors. I ought to say that my decision in this case is not ultimately affected by the contents of the witness statements of the college’s officers as the college would have succeeded without this material.

(ii) The significance of the reasons actually given by the college in the decision letters

35. This raises the issue of what reasons should be given by a decision-maker. Mr. McManus accepts that there was no need for the college to give reasons for its decision to classify the claimant as an overseas student for fee purposes. Nevertheless, a substantial part of the claimant’s criticism of the decision letters has been aimed at the reasoning of the college in those letters. I have been asked to draw inferences adverse to the college from what is or what is not said in those letters in support of the claimant’s contentions that the college misdirected itself, failed to take account of relevant considerations and was unfair.
36. It is important to recall that even where a party has a duty to give reasons, there is no need to deal with every point that has been raised. After I had reached that conclusion, I noted that Lord Clyde had explained recently in R (on the application of Alconbury Developments Limited) v. Secretary of State for the Environment, Transport and the Regions [2001] 2 WLR 1389 at [170] that:-

“What is required is there should be a decision with reasons. Providing that those set out clearly the grounds on which the decision has been reached, it does not seem to me necessary that all the thinking which lies behind it should also be made available”.

37. I will bear this in mind when I come to consider Mr. McManus’ very detailed and sustained criticisms of the decision letters and of some of the wording used in them because it is significant that the failure by the college to refer to a particular factor in its decision letter does not necessarily mean that that reason had not been considered by the college. In addition, this was a case in which the decision-maker had no obligation to give reasons.

(iii) Judicial review-an appeal on questions of fact?

38. It is important to stress that my task is to see whether the decision of the college to classify the claimant as an overseas student should be quashed on public law grounds. It is not my function to determine whether I would have reached the same decision as the college, or whether I would have used the same reasoning process as that which was adopted by the college. By the same token, I must consider with care the submissions of counsel to ascertain if their complaints reveal public law errors or whether they are in fact attempts to persuade me to substitute my decision on the facts for that taken by the college. I now turn to consider the complaints of the claimant starting with the alleged misdirections of the college.

The misdirections

First alleged misdirection: whether the claimant was telling the truth

39. The thrust of this complaint of the claimant is that the college failed to determine whether the claimant was telling the truth when he said that he had come to England in 1995 in order to settle here. The claimant contends correctly that the September 2001 decision letter should be regarded as incorporating the December 2000 decision letter to which it expressly refers as the latter letter states that “the reasons for you being classified as an overseas student were clearly set out in my letter of 15 December 2000”. It was pointed out by Mr. McManus that there is no trace in either the December 2000 decision letter or in the September 2001 decision letter of the college addressing the question of whether the claimant was telling the truth and that this according to Mr. McManus indicates a misdirection on the college’s part.
40. I am unable to accept that submission for three reasons. First, as I have already explained in paragraph 36 above, there was no need for the college to give detailed reasons for their decision and, in particular, to state specifically that it had rejected the claimant’s contention that he had come to this country to settle. So it cannot be inferred from any omission in the decision letters that the college had not addressed the question of whether the claimant was telling the truth.
41. Second, in any event, it is an inevitable inference from the December 2000 decision letter that the college did not accept the truth of the assertion of the claimant that “I am and have been a resident for over three years in his own right in this country” as stated by his letter of 28 September 2000 containing his grounds of appeal. The December 2000 letter responded to that appeal by rejecting it by explaining that it was “the college’s assertion that you were in the UK wholly or mainly for the purpose of receiving full-time education”. By the same token, it must have been apparent that the September 2001 decision letter rejected the contention of the claimant in his March 2001 letter that he “came to this country to settle and not to obtain full-time education”. In the September 2001 decision letter, Mr. Atkins explained that “it is still the college’s contention that you are in the United Kingdom wholly or mainly for the purpose of full-time education”. I am satisfied from these comments that the college demonstrated that it had considered, but rejected, the claimant’s contention that he had settled here and that means that I cannot accept this unrealistic complaint of the claimant.
42. In any event, the college cannot be criticised for the way it treated the claimant’s assertion because in Kent v. University College London (Court of Appeal – 18 February 1992) Dillon LJ (with whom Stocker and Butler-Sloss LJJ agreed) said that:-

“The college or the court, as the case may be, is entitled to evaluate [the claimant’s own statements or declarations as the purpose of his residence and to his intention at any particular time] in the light of the conduct of the person making them and the purpose for which and the circumstances in which they are made. It is entitled to scrutinise with care and to investigate evidence of purpose in order to prevent an abuse of the system under which higher fees may lawfully be charged to overseas students than to home students”.

43. Third, if I had been in any doubt on whether there had been a misdirection by the college, I would have taken note of the evidence contained in the witness statement of Mr. David Atkins, who took the December 2000 and the September 2001 decisions explaining why for three reasons he had taken those particular decisions. He stated first that he could not take the assertions of the claimant in the supplementary questionnaire referred to in paragraph 17 above at “face value” because first, his self-assessed residential category marked on his UCAS form, was ‘O’ and for the reason set out in paragraph 14 above, he considered that the claimant was not a home student. I know from the claimant’s latest witness statement why he filled the form in this way but that information, even if probative, was not before the college when it made its decisions. The second reason for his reason was that according to his UCAS form, the claimant arrived in the United Kingdom in the same month as he began as a boarder and Mr. Atkins considered this was of importance in identifying his purpose of residence here. Third, he noted that the claimant was 14 years old when he arrived in the United Kingdom without his parents, who remained residents in Hong Kong.
44. Mr. Atkins proceeded to conclude “that there was no evidence in the supplemental questionnaire to support [the claimant’s] bare assertion that he had come to the UK as his country of residence”. Bearing in mind the principles that I have already set out for appraising reasons for decisions that are supplied late and the need to approach these reasons with caution, this evidence is clearly in Hutchison LJ’s words an “elucidation not fundamental alteration” or a “confirmation not contradiction” of the original reasons. I would not have expected this detailed reasoning to be set out in the decision letter and it would be unfair not to admit this evidence of Mr. Atkins. I consider that Mr. Atkins’ reasoning on this matter is admissible within the tests to which I have already referred. Mr. Atkins’ evidence also convincingly refutes the claim that the college did not consider and determine whether the claimant was telling the truth.

Second alleged misdirection: “reasonable”

45. The claimant contends that the September 2001 decision letter contains an error of law by the use of the word “reasonable” where it is stated that:-

“Again I must repeat that the advice offered by the Department for Education and Employment which clearly states that in cases where a student is in full-time education at a boarding school in the UK, it is reasonable as to ascribe residence as being wholly or mainly for the purpose of receiving full-time education” (emphasis added by me).

46. Similar wording had been used in the December 2000 decision letter. Mr. McManus complains that this shows an error in approach as the college had to determine whether the claimant was here wholly or mainly for the purpose of receiving education. He points out that it is a court and not a college, which decides whether a decision was reasonable. I am unable to accept that submission because it seems clear to me that in the context of the letter, the word “reasonable” might not have been particularly well-chosen, but it was being used in these decision letters in the layman’s sense of meaning “correct” or “fair”.
47. It must not be forgotten that this letter was not a legal document that had been written by or vetted by lawyers but a statement written by a layman and it should be so regarded. I cannot conceive that Mr. Atkins thought that he was applying a Wednesbury test even if he knew of it when he wrote that passage as is clear from its context, in which he is stating what facts he found. In any event, as Schiemann J (as he then was) said in R v. Secretary of State ex parte C [1996] ELR 93,96 “the occasional infelicity of expression in the decision letter is understandable”.

Third alleged misdirection: the Government Guidance

48. It is contended by the claimant that both decision letters refer to the Government Guidance but the college appeared to have considered that “once a child was in a boarding school, that was an end of the matter” (Claimant’s Skeleton, paragraph 34) while the existence of property belonging to the parents of the child in the United Kingdom was regarded as being irrelevant. Mr. McManus criticises this approach as the Government Guidance does not state that the presence of a child in a boarding school means that the child is automatically to be regarded as an overseas student, who is here “wholly or mainly for the purpose of receiving full-time education” but that a student from abroad attending a UK boarding school was “probably” resident in the UK wholly or mainly for the purposes of education.
49. That is correct as the advice contained in paragraph 57 of the Government Guidance is that

“… Students must be able to demonstrate that no part of their residence during the specified three-year period was wholly or mainly for the purpose of receiving full-time education. So, for example, a normal UK school leaver can be considered as meeting this criterion because they were not residing in the UK and Islands for the purpose of receiving full-time education; they were receiving full-time education in the UK because their home and family were in the UK. On the other hand, a student from abroad who attended a UK boarding school probably was resident in the UK wholly or mainly for the purpose of receiving full-time education”. (Italicised emphasis has been added).

50. In answer to this complaint of misdirection, Mr. Ward explains correctly that neither decision letter asserts that the claimant's boarding status at school in itself conclusively determines the issue of fees status. The effect of the decision letters is that in the light of the guidance, the college considered that it would be “reasonable” to so conclude. That is plainly a legitimate inference from the guidance, which was open to the college on the facts of this particular case. It is noteworthy that of the other universities to which the claimant applied, Nottingham University classified him as a home student for fee purposes but in the light of the information supplied to it, Bristol University stated that they would classify the claimant as an overseas student unless he or his parents had ordinary residence here.
51. Although that conclusion disposes of the claimant’s complaint on the ground of this misdirection, the college contends that this conclusion would have to be reached in any event in the light of Mr. Atkins’ evidence in paragraph 22 of his witness statement, that he did not “regard this guidance as declaring that all boarders without exception were to be classified as being overseas students” but that “it serve[d] to reinforce my view that this [was] a factor of considerable weight, albeit one which could be outweighed in an appropriate case”. He explained that he did not consider that the matters relied on by the claimant were sufficient to outweigh it in this case. Mr. McManus says that this statement is inadmissible as it was made so long after the decision and was incorrect.
52. In the light of my earlier findings, this matter is academic but I have carefully studied the reasons given in the two decision letters in the light of the need to be cautious about accepting late reasons, but I have concluded that these comments are admissible within the guidelines to which I have referred. This statement of Mr. Atkins is, in Hutchison LJ’s words, a legitimate “further exposition” of the decision challenged and it is not a case of seeking to cure “faulty reasons”. I would not have expected Mr. Atkins’ reasoning to which I have referred in the last paragraph to have been set out in the decision letters and in all the circumstances it would be unfair not to admit it.

Fourth alleged misdirection: strictness

53. The claimant complains that the college’s letter of 2 December 1999 states with my emphasis added “the policy of the college is to interpret these regulations very strictly so as to be fair to everyone”. The claimant said in his letter of reply of 28 September 2000 that he was “happy to note” that the college interpreted the Regulations “strictly but fairly”. The subsequent decision letters of December 2000 and September 2001 do not refer to similar wording but Mr. McManus says that there is no suggestion that the policy’s “very strict” interpretation of the Regulations has been abandoned. These later letters, unlike the December 1999 letter, were written by Mr. Atkins and do not suggest a similar approach. There is no reason to believe that Mr. Atkins adopted a similar approach and I do not accept the logic of Mr. McManus’ contention that as “there is no suggestion that the policy of very strict interpretation has not been applied”, it can be inferred that it has. There was no obligation on the college to expressly state that it did not adopt that policy.
54. In any event, I had difficulty in understanding what the word “strictly” means in this context and Mr. McManus was unable to put forward any clear meaning to it but he mentioned that it seemed to be reminiscent of the contra proferentem rule, but that does not have any realistic or sensible application to this case. Thus, it is difficult to see why it could amount to a misdirection even in the letter of December 2000 and I would therefore reject this complaint of the claimant. In any event, it is possible to accept the clarifying evidence of Mr. Atkins in his witness statement, which explains how, the decision, was arrived at in his witness statement and this establishes that there was no error of law in applying the Regulations to the claimant “strictly but fairly”.
55. It is convenient at this point while considering the claimant’s allegations of misdirections to consider a further contention of Mr. McManus, which was that the college’s rejection of the claimant’s evidence that he came to the United Kingdom to settle was “manifestly flawed”. Mr. McManus argues that his evidence was treated by the college as a mere assertion while there was evidence to support the claimant’s assertions. I agree with Mr. Ward for the college that this approach does not adequately deal with the nature of the college’s decision, which was to balance and to weigh all the material before it and to assess the claimant’s assertions in the light of the purposes for which they were made and the circumstances in which they were made: per Mummery J in Kent v. University College (10 September 1991 p. 381).
56. Insofar as it is suggested that there were matters that ought to have been, but were not, taken into account in determining the claimant’s fee status, it is clear that they were as I will explain when considering the alleged failure by the college to consider relevant considerations listed under Ground 4. Thus, the September 2001 decision letter specifically refers to the facts that the claimant’s parents had a property in an area local to the school and that he entered this country on 1 September 1995 becoming a boarder in September 1995. The other points which it is said that the college did not consider, were that the claimant had a family here, but this point had already been made by the claimant and Mr. Atkins has explained that it was taken into consideration in making the decision. I regard that evidence as being admissible to explain his decision. As I have explained, the factors suggesting that the claimant was a home student were found to be outweighed. That does not disclose any misdirection, nor does the failure to consider the political situation in Hong Kong, which was only raised by the claimant’s solicitor after the decision was taken. In any event, this allegation is totally unparticularised and the situation in Hong Kong did not prevent the claimant’s parents remaining there; thus I have difficulty in concluding that this point has any potency or significance to the classification of the claimant for fee purposes.

Ground 2 – Fairness

57. The thrust of the complaint which was introduced by re-amendment at the hearing is first that “at no stage prior to service of the [college’s] evidence did [it] put in issue the Claimant’s claim that he had come to England to settle here”. Mr. McManus contends secondly that if the college was minded to disbelieve the claimant they should have asked him for corroboration. The first contention fails for the same reasons as the similar first allegation of misdirection, on which I have already commented in paragraphs 39-44 above. As I have explained, the claimant clearly knew that this was an issue and he took every opportunity to challenge the conclusion of the college. For example, in his letter of September 2000, the claimant set out with his full reasons why he disagreed with the college’s December 1999 letter.
58. This evidence established clearly to my satisfaction that the claimant knew full well what the issue was in this case, as otherwise he would not have made points in the correspondence such as that he had left Hong Kong to settle in the United Kingdom and that he had lived there in his parents’ house with his aunt and with his elder brother. Any reasonable reading of the college’s decision letters of December 2000 and September 2001 makes this clear. I therefore cannot accept the suggestion that the claimant did not know the position. In any event, the evidence of the claimant does not establish that if the claimant had known that his claim was not accepted, he would have adduced any further evidence of any significant probative value. The witness statements of the claimant’s parents and his brother as well as both statements of the claimant adduced for this application do not take the matter any further and certainly do not add anything substantial to what the claimant had said. So they individually or cumulatively would not have had any effect on the claimant’s efforts to be classified as a “home” student and not as an “overseas” student.

Ground 3 – Burden of proof

59. By this ground which was also introduced by re-amendment at the hearing, the claimant contends that “the college regarded the burden as being on the claimant to establish that he was not here wholly for the purpose of receiving full-time education” (paragraph 47 of his skeleton). There was a dispute between the parties as to whether a concession had been made by the college’s counsel that the burden of proof was on them to show that the claimant was to be classified as an overseas student during the oral hearing when Collins J was considering the claimant’s renewed permission application. I do not need to resolve this dispute because even if the college had made such a concession, it could be, and was, withdrawn because the claimant does not and cannot contend that he had altered his position in reliance on the alleged concession.
60. Mr. McManus contends that the college considered the issue of the claimant’s status by asking whether the claimant had proved that he was entitled to be treated as a home student whereas they should have asked on an objective basis if that was the true position. I could not find anything wrong with the college’s approach. This judicial review application is not concerned with determining what the true facts were but whether the college’s decision can be challenged on public law grounds.
61. I agree with Mr. Ward that the approach that I should adopt is that which was advocated by Lord Diplock in Secretary of State of Education and Science v. Thameside Metropolitan Borough Council [1977] AC 1014 at 1056B where he said that :-

“The question for the court is, did the Secretary of State ask himself the right question and take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly?”

62. What amounts to “reasonable steps” in any particular situation depends on the context. In this case, I consider that the college asked itself the right question and in addition, that the steps taken by the college in putting forward the supplementary questionnaire together with their continued and continuing willingness to consider further representation made by the claimant were sufficient. I am fortified in coming to this conclusion by the fact that all the matters concerning the purpose of the claimant’s stay in the United Kingdom obviously constituted material which was solely within his own knowledge and not within that of the college. Thus, it was entirely reasonable for the college to expect him to put forward material on which it could reach a decision when given an opportunity to do so. Indeed, consistently with this approach, the Government Guidance makes it clear that “students must be able to demonstrate” the purpose of the residence. The claimant knew full well what he had to prove and it seems clear that the college did not misapply the burden of proof. There is nothing in the decision letters or in the witness statements of the college’s officers to show that they so erred.
63. In any event, the claimant is, as his impressive academic record shows, highly intelligent and very well educated so that he would have had no difficulty in putting forward any argument that would or could support his case to be classified as a home student. Not surprisingly his letters show that he can also express himself clearly, cogently and without difficulty. I reject this criticism.

Ground Four – Relevant considerations

64. The claimant alleges that five “relevant considerations” were not taken into account by the college in reaching its decision. Mr. McManus’ submissions appeared to be based on the proposition that unless a decision-maker refers to a specific point, when giving his decision, it must be assumed or it must be arguable that he had not considered it. As I have explained, this is a misunderstanding of the decision-maker’s function because when giving a decision of the kind under review; he is not then obliged, as Lord Clyde has explained in the passage that I have quoted in paragraph 36 above, to give all his reasons or to deal with and respond to every point in the decision document, especially if, as in this case, the decision-maker is not a lawyer.
65. Two consequences flow from this. First, no inferences can be drawn adverse to the college from its failure to set out its full reasoning process in its decision letters. Second, the college should in appropriate circumstances be permitted to adduce evidence of what it considered in reaching its decision in order to answer the allegations of Mr. McManus that it did not consider a specific point; of course, I will consider the college’s reasons adduced in those witness statements in accordance with the caution and with the principles in the passages that I have already quoted in paragraphs 27 and 28, as well as the factors that I also mentioned.
66. The first matter allegedly not taken into account by the college was that the claimant came here to settle but this is a repeat of, or very similar to, points, that I have already rejected under both the misdirection and the fairness issues. I will not repeat my reasons for rejecting these points but it clearly was considered, but rejected, by the college in the decision letters. It is difficult to see what the college was considering if it was not deciding on this point, and the college was not obliged to state this expressly. In any event, I would accept what was said on this matter in the witness statement of Mr. Atkins to which I have already referred in paragraphs 43 and 44 above.
67. The second contention is that the college did not take into account the fact that the claimant’s brother had left Hong Kong in 1990 and that the claimant had joined him here in 1995. This point was referred to in the claimant’s letter of 28 September 2000, but it was not expressly referred to in the decision documents. I have explained there was no need for the decision documents to refer to every point. In any event, I am unable to see the probative value of the movements of the claimant’s brother in the light of all the evidence before the college especially as the claimant’s parents continued to reside in Hong Kong while the claimant had arrived in this country just before he had started at boarding school here. The college was after all concerned with the claimant’s residence and not that of this brother.
68. The third point is that the college failed to take into account the fact that the claimant’s brother had been classified as a home student. I do not understand why the college was obliged to do anything other than consider and focus on the position of the claimant on his own merits, as the Regulations envisage. The respective positions of the claimant and his brother were different as presented to the college and therefore I do not regard this as being a relevant point. Although the college judged the claimant in isolation on his own merits and not in comparison with his brother, Mr. Atkins explains in his witness statement that “[his brother’s] circumstances as they appeared to the college at the time it made its decision as to his fee status were significantly different to the facts before the college in respect of [the claimant]”.
69. It is noteworthy that for completing the important question on his residential category on his UCAS form Yu, unlike his brother the claimant, had put the letter “A” to indicate “UK/EU National or child of, ordinary resident for three years in [European Economic Area], not for purpose of full-time education”, while the claimant had not selected this but he chose instead the residual “O” classification which indicated that he did not see himself as “UK/EU National or child of, ordinary resident for three years in [European Economic Area], not for purpose of full-time education”. I consider that this and the other factors explained by Mr Atkins in his witness statement as being clarification evidence, which demonstrated a sufficient difference between the position of the two brothers as it would have appeared to the college. I know that the claimant has now sought to explain why he used the ‘O’ classification but what is relevant is how matters looked to the college. So even if the college had considered the position of the claimant’s brother, it would have appreciated that there was a noticeable difference between him and the claimant.
70. The fourth matter which it was contended was not taken into account by the college was that the claimant lived in the Northwood house with his aunt and that his parents owned it. This point had been advanced by the claimant in his letter of 28 September 2000 and it was expressly mentioned and appraised in a reasonable manner by the college in the September 2001 decision letter. It did not have any decisive or substantial relevance because, as the college explained, the claimant’s parents lived abroad; a reasonable inference from that is the claimant’s parents had a home there. Insofar as it is contended that Mr. Atkins relied on an immaterial consideration, namely that the claimant was supported by his parents from Hong Kong, Mr. Atkins explains that this did not effect the uncontradicted presumption that the claimant was supported by his parents from Hong Kong and that therefore his residency in the United Kingdom was wholly or mainly in order for him to be educated here.
71. Fifth, it is said that the college failed to take account of the fact that the claimant chose to be a boarder at Merchant Taylor’s School to experience communal life. Mr. Atkins explains in his witness statement that he took that factor into account and that this added weight to his conclusion that the claimant was in the United Kingdom wholly or mainly for the purpose of education. Thus, I cannot accept Mr. McManus’ complaints about this or any of the other arguments that the college ignored relevant factors.

Ground Five – Consistency

72. The claimant contends that “he has not been treated in the same way as his brother and no explanation has been put forward for the different treatment”. In support, Mr. McManus relies on the statement of Lord Donaldson MR that it is “cardinal principle and good public administration that all persons who are in a similar position should be treated similarly” (R v. Hertfordshire CC Ex p. Cheung, Times, April 4, 1986).
73. That contention can only be accepted if the claimant and his brother were in a similar or identical position on the information available to the college because if there were similarities between two candidates not disclosed to the college, then the college could not be criticised for reaching its decision without taking those unrevealed similarities into account. As I have already explained in paragraphs 68 and 69 above, the position of the claimant and of his brother on the information available to the college would have appeared to be different because of the way in which they indicated their residential category on the UCAS form, namely an “A” for the claimant’s brother and an “O” for the claimant. Those differences were sufficiently significant to show that the claim based on inconsistency between similar candidates is not made out. So it cannot constitute any basis for undermining or quashing the decision.

Defence of prejudice and damage to good administration

74. The college originally claimed that the delay of the claimant in bringing this application for judicial review had caused the college considerable prejudice and was detrimental to good administration so that the claim should fail for that reason. It was said that the college had made budget decisions based on the claimant accepting that he had to pay as an overseas student but that this status was not disputed by the claimant until two days before his course began and even then, he did not commence proceedings until 14 months later. The argument of the college continued that if the claimant were now to be classified as a home student, then the college would be deprived of the opportunities that it would otherwise have had to secure additional funding from the Higher Education Funding Council for England. On reflection, the college did not pursue this point. I regard that as a sensible decision because the college has more than 10,000 students and the loss of £9,000 a year from one student can hardly be regarded as a matter, which would cause them any serious prejudice.

Relief

75. As I have already explained, I consider that all the challenges to the decision of the college fail. I ought to say that even if I had upheld the claimant’s contention that the college’s decision was flawed, it is quite probable that I would have considered the matter in the light of the witness statements of Mr. McClure and Mr. Atkins so that I might well have adopted the approach of the Court of Appeal in R v. London Borough of Brent ex parte Baruwa unreported – 12 February 1997 in which Schiemann LJ said about an affidavit which had been filed amplifying reasons given by a decision-maker that “looking at such an affidavit is often a sensible course and saves the bother and expense of going back to the decision-maker to make a new decision which will incorporate the material which appears in the affidavit”.
76. Mr. McManus said that the parties in Baruwa’s case had accepted that the court should look at the affidavits, but to my mind that is not a decisive or really relevant factor where the court is not considering the admissibility of the reasons to justify the position but what relief should be granted. It is important that there is unlikely to be any important material that could be put before the college if the matter was to be remitted that had not been adduced on this application and commented on by Mr. Atkins; so it is difficult to see why the college might thereafter have reached a different conclusion from that set out in Mr. Atkins’ witness statement but I need not decide that point in the light of my decision that the claim fails.

Conclusion

77. Thus, notwithstanding the sustained and wide-ranging grounds of challenge of Mr. McManus to the college’s decision, this claim must fail as the claimant has failed to establish any public law grounds for impugning the college’s decision. The complaints of the claimant are in reality genuinely held disagreements on issues of fact with the college’s decision, but neither individually nor cumulatively do they justify any interference with its decision on a judicial review application. So this claim fails and must be dismissed.
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MR JUSTICE SILBER: I am grateful to both of you for the amendments you have made. I am going to adopt those and also adopt one or two additional ones as well of my own.PRIVATE 

MR SYKES: Now you may have spotted I am not Mr Ward and Mr Ward sends his apologies.

MR JUSTICE SILBER: Yes. Well, for the reasons set out in the judgment I would dismiss the application.

MR SYKES: My Lord, it would be my application for the defendant to claim the costs.

MR JUSTICE SILBER: Is that opposed?

MR SOLOMON: My Lord, we do not oppose in principle, but I do have detailed submissions on costs if your Lordship is minded to make a summary assessment.

MR JUSTICE SILBER: Well, I have not been asked to make a summary assessment of costs and I have not received a copy of the bill.

MR SYKES: My Lord, copies of the bill were included in the papers that had been sent to court.

MR JUSTICE SILBER: Well, I do not have it. Can I see it? Can I have a copy of it please?

MR SYKES: My Lord, I regret there being three parts to it, it does come in three parts.

(Handed)

MR JUSTICE SILBER: Thank you very much. There seems to be an enormous number of bills.

MR SYKES: My Lord, the three documents are more intimidating in appearance than they are in substance. What one does is to look at the last page of each one. The first one, my Lord, is dated on the front, 21st December 2001. They were the costs incurred in the acknowledgment of service. And one then has the estimate of costs dated 13th June 2002. Those are the costs that are not in the first one, that were incurred subsequently getting ready for trial and appearing at trial. And then finally, my Lord, the one of yesterday's date. Those were the costs in addition to those estimated in the previous bill and those have been incurred subsequent to that hearing itself.

MR JUSTICE SILBER: Yes. Well, then, finally, there is the additional copy. You say there should be a detailed assessment, do you?

MR SOLOMON: My Lord, not necessarily. I am entirely happy that they should be summarily assessed now by your Lordship, but I do have detailed points to make.

MR JUSTICE SILBER: Right. Shall we see how we get on? I have your statement of costs, but that does not seem to be very relevant.

MR SOLOMON: My Lord, it might be relevant to assess whether the defendant's costs are reasonable. May I also indicate I have a further application for permission to appeal to make to your Lordship.

MR JUSTICE SILBER: Yes.

MR SOLOMON: Dealing with costs, my Lord. The first point I would make is that the costs are wholly disproportionate. There is no figure totaling the costs, but I am told by my learned friend this morning the total figure, including VAT, is £39,274 odd and my learned friend informed me this morning that he is not claiming VAT which takes it down to £33,417 odd on a claim with a value of around £36,000. Now, my Lord, the first point I make is that that is wholly disproportionate. Secondly, it is significantly more than the claimant's costs which amount to around----

MR JUSTICE SILBER: £25,000.

MR SOLOMON: Yes, including today's costs, would be less than £30,000. And your Lordship will, of course, note that the claimant was represented by a silk and junior in this case.

MR JUSTICE SILBER: Yes, of course.

MR SOLOMON: Furthermore, the argument may be levelled at the claimant that his costs were disproportionate, given the nature of the claim and the size of the claim, and indeed it may not have been appropriate to instruct a silk in this case. Thirdly, my Lord----

MR JUSTICE SILBER: Yes, but what do you say about individual items? This is really what I am concerned with.

MR SOLOMON: On individual items, firstly dealing with the permission hearing on 21st December 2001 that amounts to over £4,100. That is the first schedule, my Lord.

MR JUSTICE SILBER: The first one I have is for costs of acknowledging service, is that accepted?

MR SOLOMON: Yes, that is the bill I am referring to, my Lord, it is dated 21st December 2001.

MR JUSTICE SILBER: And that is agreed, is it?

MR SOLOMON: It is not agreed.

MR JUSTICE SILBER: What do you say is wrong with that?

MR SOLOMON: The claimant's costs cannot be compared directly to it but----

MR JUSTICE SILBER: Yes, but what do you say is wrong with each of these items? You tell me what is wrong with it. There is not much point just looking at the claimant's costs; you have to say what is wrong with this because the claimant does different work at this stage.

MR SOLOMON: Yes, well, the claimant does the majority of the work at this stage and it was significantly less than this amount.

MR JUSTICE SILBER: Well, I cannot see what the claimant's costs were -- oh, I see, it is these early figures, yes.

MR SOLOMON: The solicitors' costs are entirely disproportionate given what sort of function the claimant's solicitors would be carrying out.

MR JUSTICE SILBER: So what do you say is appropriate costs? Can you go through these items and say which of the items you say should not have been incurred or is too high?

MR SOLOMON: My Lord, 8.7 hours taking instructions, or more than that, over nine hours taking instructions before--

MR JUSTICE SILBER: Yes.

MR SOLOMON: --the permission hearing is too much.

MR JUSTICE SILBER: Yes. So how many hours do you say it should be?

MR SOLOMON: Well.

MR JUSTICE SILBER: I mean, your team put in for six hours.

MR SOLOMON: That is for the whole of the trial, my Lord.

MR JUSTICE SILBER: Well, you tell me what you say it should be.

MR SOLOMON: No more than two, my Lord, I would say. That is on instructions from those instructing.

MR JUSTICE SILBER: What, taking instructions on a case of this sort? Yes.

MR SOLOMON: Moving on to the defendant's statement of costs dated 13th June.

MR JUSTICE SILBER: So that is what you object to on that one. 13th June, yes. Yes?

MR SOLOMON: On 13th June under the first heading "Attendance, communications and work done", the defendants have totalled over 35 hours, my Lord.

MR JUSTICE SILBER: Pardon?

MR SOLOMON: The claimants have spent ten hours on this and I would submit that would be reasonable. The relative costs are----

MR JUSTICE SILBER: Well, you have ten hours, the defendants are only claiming for ten hours.

MR SOLOMON: No, the defendants are claiming 35 hours, turning over to page 2, points (1) and (2) total 35.1 hours. The comparable number of hours for the claimant is 10 hours and the relative costs are a total of over £5,600 for the defendant and just over £1,600 for the claimant. My Lord, I would submit that a reasonable figure would be the claimant's figure in that context.

MR JUSTICE SILBER: Yes.

MR SOLOMON: Secondly, "Instructing counsel", your Lordship will note that points (3), (4) and (5) amount to 20 hours. So the defendant took 20 hours simply in instructing counsel.

MR JUSTICE SILBER: Yes. What do you say is wrong with that?

MR SOLOMON: A reasonable figure would be the 4.42 hours that the claimant took, and in terms of cost, my Lord, that is about £2,000 less than the defendants on that point.

MR JUSTICE SILBER: Yes. Yes.

MR SOLOMON: Thirdly, on "Correspondence", which is at point (3).

MR JUSTICE SILBER: Where is "Correspondence"?

MR SOLOMON: "Correspondence" is on the other side, the bold figure, claimant and his solicitor.

MR JUSTICE SILBER: Which number is this?

MR SOLOMON: (7) and (8).

MR JUSTICE SILBER: Oh I see, yes. Yes?

MR SOLOMON: That is 12.8 hours that the defendant spent corresponding with the claimant and the corresponding figure for the claimant corresponding with the defendant is 4.5 hours, so the difference in costs is about £1,000.

MR JUSTICE SILBER: Yes.

MR SOLOMON: "Documents" which is over the page, my Lord, at (14), (15) and (16).

MR JUSTICE SILBER: Yes.

MR SOLOMON: The defendant has totalled about 50 hours on documents, whereas the claimant has totalled 20 hours and there is approximately £4,500 in the difference in cost. Now what must be remembered in documentation, my Lord, is that the claimant prepared the bundles. Secondly, what must also be remembered or acknowledged is that the defendants have over the period leading up to trial insisted on a number of what can only be described as pedantic changes to the bundles. My Lord, it may be helpful if your Lordship has the bundles before you.

MR JUSTICE SILBER: I do not, but I can gather the sort of discussions that take place about bundles.

MR SOLOMON: There are at least four letters, some of which go to three pages, my Lord, from the defendant to the claimant--

MR JUSTICE SILBER: Yes.

MR SOLOMON: --asking for changes.

MR JUSTICE SILBER: Well.

MR SOLOMON: Such as typographical errors, changes to the index, changes to the order of the bundles and renumbering of the bundles. Now this incurred significant costs--

MR JUSTICE SILBER: Yes.

MR SOLOMON: --for the claimant as well. So those costs are represented in the claimant's hours of costs in preparing the bundles and it is entirely unnecessary in this case to have gone through that process.

MR JUSTICE SILBER: Yes.

MR SOLOMON: So those are the points I make, my Lord, on the costs--

MR JUSTICE SILBER: Yes.

MR SOLOMON: --enclosed in that document.

MR JUSTICE SILBER: Yes.

MR SOLOMON: The last most recent schedule dated 4th July--

MR JUSTICE SILBER: Yes.

MR SOLOMON: --2002. Your Lordship will note that the total amounts to £4,500 odd.

MR JUSTICE SILBER: Yes.

MR SOLOMON: That includes, my Lord, points (8) and (9), some hours spent considering the judgment, and appoints again, at points (12) and (13), what must be comparable to a brief figure of over a £1,000, although the claimant has spent £300.

MR JUSTICE SILBER: Yes. But, you know, there are going to be substantive hearings, if you are going to make an application for permission to appeal. They just cannot pick somebody out, it is not just the formality as it often is in the Court of Appeal, so they have to send somebody down to deal with it.

MR SOLOMON: Yes, my Lord.

MR JUSTICE SILBER: Yes.

MR SOLOMON: But my learned friend has had to travel, that is the seven hours, as I understand it, and a barrister from London would not have incurred those travel costs.

MR JUSTICE SILBER: You are an in-house----

MR SYKES: Yes, my Lord. Yes, I was here throughout the hearing sitting behind Mr Ward. I retained my right of audience and rather than instructing separate counsel and then have to attend myself, increasing the costs, in my submission, I simply attended myself.

MR JUSTICE SILBER: Yes. Right.

MR SOLOMON: My Lord, I have no further specific points to make, save to note once more the disproportionate nature of the costs.

MR JUSTICE SILBER: Your costs came to how much? Let us forget about VAT.

MR SOLOMON: Approximately £22,000, my Lord.

MR JUSTICE SILBER: And they come to?

MR SOLOMON: £33,000.

MR JUSTICE SILBER: £30,000?

MR SOLOMON: About £33,000. I gave your Lordship the figures.

MR JUSTICE SILBER: Yes.

MR SYKES: My Lord, £33,400.

MR JUSTICE SILBER: Yes.

MR SOLOMON: £33,400.

MR JUSTICE SILBER: That is without VAT, is it, we are talking about?

MR SOLOMON: Yes.

MR JUSTICE SILBER: Of course, your client, he cannot recover VAT can he? He cannot offset it?

MR SOLOMON: No.

MR JUSTICE SILBER: Yes. Is there anything you want to say?

MR SYKES: Well, my Lord, yes. There are a few points in reply I would make, my Lord. First of all, dealing with the disproportionate nature of the costs, to examine the amount of money is irrelevant in my submission. This was an application for judicial review, not a money claim. Inevitably, my Lord, the costs may very well exceed it. Had the amount been £2.50, the costs would have been the same. What is at stake is not, in my submission, £40,000 odd, as my learned friend submits, but rather the actual decision of the college itself. Secondly, of course, this is a specific area. Judicial review itself is a specialised area.

MR JUSTICE SILBER: Yes, yes well, I appreciate those points. What we are really concerned about are specific items really. This was fought as a matter of principle and strenuously and very carefully contested by the claimants and they are entitled to deal with that, so I am not troubled about that. What I am troubled about is how you actually arrived at the figures.

MR SYKES: My Lord, of course, and I will go through the items that my learned friend has criticised. Two hours taking instructions from the Imperial College of Science and Technology, my Lord may appreciate that there are more than one person that one has to speak to in order to take instructions in a matter of this sort. My Lord has seen the application bundle itself. It is a sizeable document. There was a fair amount of to-ing and fro-ing that goes on in that. My Lord will also have seen the size of the acknowledgment of service that went with it. It was not a short document, it was a considerable document. And it is that that gives rise to those hours on the first estimate of costs.

Moving on to the second estimate of 13th June. Taking instructions from the client, this includes, of course, taking instructions in relation to witness statements. My Lord has seen that there were two detailed witness statements, Mr McClure and Mr Atkins and then a further witness statement that had to be taken later on. So there has been some to-ing and fro-ing. It is also important, my Lord, to bear in mind that there have been two amendments of the case by the claimants. Both of which happened after the defendant had met the case. The case was delivered on paper, a new case was presented at the oral hearing and a third amended case was served, not that part for hearing, (inaudible). Each one of these had to be met; each one of these taking instructions from the client. I have detailed the fine area of fact as involved in relation to the matter.

The next item that is criticised is the instructions of counsel in relation to that. There is the physical task of literally producing instructions and then sending them to the counsel. There is also the equivalent of conferences with counsel, telephone calls where new matters come in. Again, inevitably, it is going to be high, because again there were two amendments to the case with substantial changes too, the arrival of the late witness statements, the supplemental witness statement of Mr Leung and other changes like that. This is an honest recording of the time, my Lord, and that is the length of time that I spent, that was spent dealing with instructing counsel and other matters.

The next item, in relation to the correspondence with the claimant and his solicitors. It was the experience of our firm that often we received a number of letters that were indicated as having been received, and I use this for illustrative purposes only with you, but the reason we have had to spend a long time dealing with the correspondence from the claimant's solicitors is we have received, for example, letters indicating they had been sent by fax that we had not received. I then had to (and I use "I" correctly there) make sure that we had not in fact received it by fax. Obviously, if they say it is sent by fax and I have not had that, it may have been important. So I need to check and try and find if it was not in fact sent by fax. That accumulated more time.

My learned friend has drawn attention to the documents, the indices that were prepared and there was some correspondence about it. One key letter went there asking for a number of changes, it is true. The response that we got back was 'we made those changes' and when we looked we found they had not, and a number of those changes had not in fact been made, with the result that we had to spend time checking. It may have been small changes, and my learned friend describes it as pedantic, but, my Lord, I feel it is right that matters that come before the court are correct in their description.

My Lord, criticism was also made in relation to the -- my Lord, I might also point out that we received a second witness statement of Mr Leung, as I mentioned earlier, but there was also initially some mention of a friend of Mr Leung, a Mr Chang, and some steps had to be taken to try and locate this person. It was found we could not disclose information, as you will appreciate, for the same reason as the brother's details, it was difficult to disclose those. We met an uncooperative approach from the claimant's solicitors which put us to expense in itself. So, my Lord, there are a number of matters which simply have been -- time that has been incurred as a result of the claimant's action. I might also, as a closing remark, say, my Lord, that you indicated this was largely a matter of fact.

MR JUSTICE SILBER: Oh, no, there is interesting submissions, but that is not what we are concerned with at this stage. It is really what costs have been incurred in dealing with it.

MR SYKES: My Lord, it was a point that went, in essence, to the conduct of the matter generally and I will pass it. A final remark, again additional time was spend because the copy of the court bundle we received contained a number of illegible copies, simply because of photocopies. We then had to spend the time making sure the copies before the court were legible.

MR JUSTICE SILBER: Yes. Thank you very much. Is there anything more you want to say?

MR SOLOMON: Solely on the point of amendments, my Lord.

MR JUSTICE SILBER: Pardon?

MR SOLOMON: Solely on the point of amendments which my learned friend placed weight on, the amendments were purely amendments of laws as to how the claimant put his case.

MR JUSTICE SILBER: Yes, but it did require a bit of extra work. I can tell you, I do not know whether you want to say any more, but my present view is to assess the costs at £24,000. I do not think you can say much more on that.

MR SOLOMON: Save to say this, my Lord: that is about the amount that the claimant put in.

MR JUSTICE SILBER: Well, that is not----

MR SOLOMON: And the claimant's costs were disproportionate.

MR JUSTICE SILBER: Yes.

MR SOLOMON: And in these cases it is generally the case that a public body defending a judicial review claim would have significantly lower costs than----

MR JUSTICE SILBER: Well, that might well be true when it is a government department using in-house people. Here it was obvious that they did not have it and they went outside and therefore that is the reason why it turns out to be more expensive. Any how, is there anything more you want to say?

MR SOLOMON: No, my Lord.

MR JUSTICE SILBER: In that case, I assess costs at £24,000.

MR SOLOMON: £24,000?

MR JUSTICE SILBER: Yes.

MR SOLOMON: I am grateful.

MR JUSTICE SILBER: That is, of course, without VAT, because we are not concerned with that.

MR JUSTICE SILBER: Yes.

MR SOLOMON: My Lord, as I indicated earlier I do have an application for permission.

MR JUSTICE SILBER: Yes.

MR SOLOMON: The first point I make simply is that I do not repeat now the submissions that Mr McManus made to your Lordship, but simply submit that those are arguable, all the grounds that he put before your Lordship are arguable.

MR JUSTICE SILBER: Well, that is not the test. That is not the test you have to show a higher test than that.

MR SOLOMON: And that permission should be granted.

MR JUSTICE SILBER: Yes.

MR SOLOMON: And that, secondly, my Lord, that your Lordship dealt with the Ermakov question.

MR JUSTICE SILBER: Yes.

MR SOLOMON: And my submission would be this that your Lordship has, with respect, greatly limited the scope of Ermakov.

MR JUSTICE SILBER: It did not affect my decision at all, as you probably gather.

MR SOLOMON: I note that, my Lord, I make two points on that. This is of course a point of public importance when and why decision-makers are permitted to rely on evidence after their decision and that is a question of huge significance in judicial review generally and especially when there were no satisfactory obligations to give reasons. This case now is authority for the proposition that it would be strange if later reasons could not be adduced to meet a challenge where there is no statutory obligation to give reasons and, my Lord, that is a significant limitation on the Court of Appeal in Ermakov and on Stanley Burnton J's formulation of the proposition when and why such decisions can be taken into account. I note your Lordship's judgment was not affected by this decision, but your Lordship did place weight at times on the witness statements.

MR JUSTICE SILBER: I did not because if you cut off all the witness statements they would not have changed the end. I looked at the case without the witness statements first of all and then with the witness statements and it was quite clear that I would have come to the same decision on both. Thank you very much.

MR SOLOMON: And, secondly, my Lord, briefly, dealing with the question of relevant considerations. Your Lordship found at paragraph 20 of your Lordship's judgment that the fact that the claim's parents owned a house in Northwood was appraised by the college in----

MR JUSTICE SILBER: Which paragraph?

MR SOLOMON: 70, my Lord.

MR JUSTICE SILBER: Yes.

MR SOLOMON: That is where your Lordship says that the question of the ownership of the parents' house was mentioned and apprised by the college in the September 2001 decision letter.

MR JUSTICE SILBER: Well, it referred to it, did it not, in the 2001 letter?

MR SOLOMON: Well, my Lord, it referred to it simply to say that it was not relevant. The way it refers to it is that 'I do not see the fact that your parents' owned property in the area local to the school as relevant'.

MR JUSTICE SILBER: Yes. Well, that was one of the things that you will see in the final judgment I do actually put it in that way.

MR SOLOMON: Yes. The submissions I would make are these, my Lord, that firstly your Lordship categorises the way Mr MacManus put the case at paragraph 64 as, and this is the second and third sentence, appearing,

"... to be based on the proposition that unless a decision-maker refers to a specific point, when giving his decision, it must be assumed...that he has not considered----"

MR JUSTICE SILBER: Or must be arguable.

MR SOLOMON: Or must be arguable. Well, this is not one of those instances, my Lord. This is an instance where the decision-maker specifically states that he is not taking that factor into account. It is not relevant. So that is the first point, my Lord. Secondly, I would submit, and this point has not been met, that the question of ownership of a property is relevant to the questions the defendant was needing to decide, and given that it was a relevant and material consideration its exclusion from the decision-making process is an error of law. My Lord, I do not now rehearse again the submissions Mr McManus made--

MR JUSTICE SILBER: No, well, I have those very much in mind.

MR SOLOMON: --that permission should be granted on those and those two additional points I have made to your Lordship.

MR JUSTICE SILBER: What do you say?

MR SYKES: My Lord, in relation to the first two points that have been identified, my Lord has dealt with those matters. If I may say, my Lord, simply that the Ermakov question did not affect your judgment. It is quite plain each time you have gone on to consider the subsequent witness statements, ie the witness statements of Mr McClure and Mr Atkins, I take into account what I said earlier and it is very plain from the language of the judgment that even if you had not had the witness statements it would not have altered your judgment. Simply, that it is an issue of public importance, those are matters which do not in itself mean it ought to go through.

MR JUSTICE SILBER: What do you say about ownership of property?

MR SYKES: Well, the ownership of property, well, my Lord, that is a matter in which you have, in my submission, dealt with within the judgment and my Lord might also have in mind whether or not that, in itself, would in fact invalidate the decision given your remarks right at the end in relation to relief in Baruwa.

MR JUSTICE SILBER: Yes. Thank you very much. Is there anything you want to say?

MR SOLOMON: No, my Lord.

MR JUSTICE SILBER: I have no hesitation whatsoever in refusing permission in this case. The first point that was taken was that the grounds in this case are arguable; that does not reach the prescribed threshold for permission to appeal.

The second point that is taken is in relation to the Ermakov decision concerning the admissibility of reasons which are given after the decision. I made it quite clear in my judgment that I would have reached the same conclusion as I did without having to consider the later reasons that were given by the college, so this point has no probative value whatsoever.

The third question related to the ownership of the property by the claimant's parents in this country. This I considered was appraised by the college in a reasonable manner in the September 2000 decision letter and they reached a decision that they were entitled to come to. To my mind the criticisms made of that finding do not come any where near high enough to reach the prescribed threshold and, in any event, even if the claimant was correct that would not give a proper basis for launching an appeal.

As I had indicated in my judgment I think that this was a very clear case in which judicial review had to be refused. Thank you. You will get a written document setting out the reasons why I refused it in a day or two.

MR SOLOMON: Thank you very much.

MR JUSTICE SILBER: Thank you. Could you thank Mr McManus for his help during the case as well?

MR SOLOMON: Yes, my Lord.