England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT

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

Mr Justice Scott Baker:

1. Dr Evans is a lecturer in history at Cambridge University. She has a long running dispute with the University about her failure to obtain promotion. She complains about various aspects of the promotion system and believes that she should have been promoted to professor.
2. There are before the court two sets of proceedings. In the first, CO/4285/2000, she challenges the General Board’s Promotions Committee’s decision of 17 October 2000 and the General Board’s decision of 25 October 2000 not to recommend her for promotion as well as the Appeals Committee’s decision of 11 December 2000 to reject her appeal against the General Board’s decision. In the second, CO/4472/2001, she challenges the General Board’s decision of 10 October 2001 not to propose the creation for her of a personal professorship. The proceedings were stayed pending further consideration of Dr Evans for promotion. Also, the University has tried to resolve Dr Evans grievances internally but has been unable to do so. At one stage Sir Brian Neill became involved as a mediator.
3. When the matters became before Burton J. on paper he gave various directions including one for an oral hearing on notice. The case came before me on 9 May 2002. After hearing argument for most of the day I granted permission but limited to the issue of whether or not the challenged decisions are amenable to judicial review. It seemed to me that this issue lies at the heart of the case and if resolved against Dr Evans would dispose of the case. I gave her the opportunity to lodge any further submission on this issue in writing by 20 May 2002 and gave the Defendant the opportunity of replying in writing on any points of law. Both parties have availed themselves of these opportunities. I further directed that the grant or otherwise of permission on any of the other issues should await the outcome of my decision.
4. Oxford and Cambridge Universities derive their powers from the Oxford and Cambridge Act 1923. They have statutory power to make their own statutes subject to the approval of the Privy Council, and also their own ordinances. They are different from other universities. They have no visitor.
5. A similar application was made by Dr Evans in 1998. She sought leave to bring proceedings for judicial review of a decision of the Promotions Appeals Committee on 2 March 1998, claiming she had been the subject of a miscarriage of justice on a number of grounds. Turner J, in refusing permission (see CO/…./1998 unreported) pointed out that there had for a considerable period been a running dispute between Dr Evans and the University on the basis that she felt her qualifications entitled her to serious consideration for promotion to the position of professor. She had brought proceedings in the employment tribunal and the county court. Turner J. dealt with the various substantive complaints deciding that none of them had any merit before concluding:

“Quite apart from the specific grounds put forward by the applicant, which themselves lack intrinsic merit, generally, the applicant has failed to satisfy me there is in her application to challenge the decision of the Appeals Committee, any sufficient element of public law to justify the grant of leave. The essence of the dispute between the applicant and the University lies in its role as an employer and her position as an employee. That relationship is governed by the ordinary rules of the law of contract. If and to the extent that the applicant wishes to claim that her employer has acted unfairly towards her, that is capable of resolution as a breach of her private law rights. The mere fact that certain aspects of the government of the University do fall within the field of public law if, by way of example, its decisions have been reached by ignoring well known public law principles, then public law can be successfully invoked. But that is a long way from anything from which the applicant seeks to ventilate in regard to her own promotion and the activities of the Appeals Committee.”

The Promotions Process

6. As I understand the process it is as follows. First, candidates are assessed by faculties under published criteria; next, the Promotions Committee of the General Board sits in sub-committees to deal with groups of disciplines. Each candidate is evaluated with two or three sentences of reasons. The third stage is for the whole of the General Board’s Promotions Committee to come together. It tries to achieve consistency across the disciplines. This meeting takes a day and in the present case some 129 candidates were assessed against seven criteria. Finally the General Board ratifies the Committee’s decision and there is a right of appeal to the Appeals Committee. Dr Evans makes various points about the fairness of the procedure, absence of reasons and so forth but it is unnecessary to go into these at this juncture.
7. The Second challenge complains that the University’s General Board did not propose the creation for her of a personal professorship. Here again numerous grounds are advanced including reasons, unlawful delegation of powers by the General Board, breach of Article 6 of the European Convention on Human Rights and Fundamental Freedoms, failure to divulge who considered her application for promotion, breach of legitimate expectation and breach of statutory duty under the Data Protection Act 1998. Again, at this stage I need go into no further detail.
8. Dr Evan’s case is that she is not just a discontented employee of the University (although in my view she is certainly that). She goes much further claiming that what the University has been doing is unlawful. She has been campaigning for many years for a complete overhaul and reform of the promotion process, which in her view is out of date and not geared to ensuring that the best qualified candidates are promoted. For example, she says there is no indication how the General Board could satisfy itself from the materials put to it. It should be able to see what it is approving and why rather then merely acting as a rubber stamp. Candidates are given nothing to show how to do better or why they have failed; and they should be.
9. Dr Evans points to the fact that she is an officer holder within the University, a university lecturer in the Faculty of History. She draws attention to the continuity of the office and to the fact she cannot be dismissed. The promotion procedures are ordinances of the University.
10. The demarcation between public law disputes which the Administrative Court will entertain and private law disputes which it will not is not always capable of precise definition. The question to be asked in the present case is whether the decision-makers were exercising public law or private law functions. In this regard the prime focus is not so much on the status and nature of the body making the decision as on the particular function that it is exercising. Where that function relates to employment, cases that have came before the courts have usually fallen on the private law side of the line for the no doubt obvious reason that there are other remedies of a statutory or contractual nature.
11. The indisputable fact is that Dr Evans is an employee of the University. She has a contract of employment with the University, one that incorporates the University’s own rules made through ordinances. If the University is in breach of contract through failing to comply with its own rules her remedy is to claim breach of contract. She also has rights giving access to an employment tribunal.
12. Dr Evans, as I have said, makes much of being an officer holder, claiming that this fact gives rise to the availability of public law remedies. But, as Mr Clarke for the University points out, there is a distinction between being an office holder within the University and holding a public office. In this case being an office holder within the University means no more than being an employee within the University.
13. If the University’s submission is wrong then the consequences would be to open up judicial review to every disgruntled academic employee at Oxford and Cambridge universities. I cannot believe that to be right. Dr Evans has to attach any claim for judicial review to an impeachable public law decision. In looking at the decision to see what function the decision-makers in this case were performing, the answer seems to me to be clear that they were ones of an employment nature rather than public ones.
14. Dr Evan’s second complaint that the General Board did not propose the creation for her of a personal professorship seems to me to emphasise the personal character of this dispute. She is not claiming appointment to an established chair, rather that one should be created for her. I do not regard this as significantly different from an employee in a business who complains that he has not been promoted to a post that should have been tailor made for him.

The Authorities

15. I turn therefore to look and see how the observations of Turner J. in 1998 accord with authority. There is some dispute as to the extent, if any to which the public/private law point was argued before him. In R v Panel on Take-Overs and Mergers ex parte Datafin PLC [1987] 1QB 815 the Court of Appeal had to consider whether decisions of the Take-Over Panel were amenable to judicial review. It concluded that they were. If there is a public duty the court will police it. Lord Donaldson M.R said at 835G:

“No one could have been in the least surprised if the panel had been initiated and operated under the direct authority of statute law, since it operates wholly in the public domain. Its jurisdiction extends throughout the United Kingdom. Its code and rulings apply equally to all who wish to make take-over bids or promote mergers, whether or not they are members of bodies represented on the panel. Its lack of a direct statutory base is a complete anomaly, judged by the experience of other comparable markets world wide.”

The Court looked closely at the underlying circumstances of what the Take- Over panel was doing. This was of much greater relevance than the source of its power.

16. R v Secretary of State for the Home Department ex parte Benwell [1985] 1QB 554 was a case where a prison officer obtained judicial review of a decision to dismiss him for a breach of the code of discipline for prison officers. But he had entered the prison service as a person holding the office of constable and not under a contract of employment. Accordingly, he had no private law rights that could be enforced in civil proceedings. In the course of his judgment Hodgson J cited with apparent approval Purchas L.J in R v East Berkshire Health Authority ex parte Walsh [1985] QB 152, 176B:

“There is a danger of confusing the rights with their appropriate remedies enjoyed by an employee arising out of a private contract of employment with the performance by a public body of the duties imposed upon it as part of the statutory terms under which it exercises its powers. The former are appropriate for private remedies inter parties whether by action in the High Court or in the appropriate statutory tribunal, whilst the latter are subject to the supervisory powers of the court under R.S.C. Ord 53.”

Walsh was distinguishable because the disciplinary procedures in that case were incorporated into the contract of service which deprived the procedures and compliance with them of any possible public law character. So in the present case promotion is something to be determined according to Dr Evan’s terms of service.

17. University Council of The Vidyodaya University of Ceylon v Linus Silva [1965] 1W.L.R 77 was a Privy Council decision. The University had summarily terminated the Vice-Chancellor’s appointment without him being informed of the nature of the allegations against him or being afforded an opportunity of being heard in his own defence. It was held that he was not shown to be in any special position other than a servant of the University and that where there was an ordinary contractual relationship of master and servant the latter could not obtain an order of certiorari if the master had terminated the contract. Lord Morris of Borth-y-Guest said at 90 C:

“The circumstances that the University was established by statute and is regulated by the statutory enactments contained in the Act does not involve that contracts of employment which are made with teachers and which are subject to the provisions of section 18(e) are other than ordinary contracts of master and servant.”

18. That decision was referred to by Lord Wilberforce in Malloch v Aberdeen Corporation [1971] 1W.L.R 1578 where the House of Lords decided by three to two that teachers in Scotland had in general a right to be heard before they were dismissed. He said at 1596F:

“On the other hand, there are some cases where the distinction has been lost sight of, and where the mere allocation of the label – master and servant – has been thought decisive against an administrative law remedy.

One such, which I refer to because it may be thought to have some relevance here is Vidyodaya University Council v Silva [1965] 1W.L.R. 77, concerned with a university professor, who was dismissed without a hearing. He succeeded before the Supreme Court of Ceylon in obtaining an order for certiorari to quash the decision of the University, but that judgment was set aside by the Privy Council on the ground that the relation was that of master and servant to which the remedy of certiorari had no application. It would not be necessary or appropriate to disagree with the procedural or even the factual basis on which this decision rests, but I must confess that I could not follow it in this country in so far as it involves a denial of any remedy of administrative law to analogous employments. Statutory provisions similar to those on which the employment rested would tend to show, to my mind, in England or in Scotland, that it was one of a sufficiently public character, or one partaking sufficiently of the nature of an office, to attract appropriate remedies of administrative law.”

19. Dr Evans cited McLaren v The Home Office [1990] I.R.L.R. 338 where the Court of Appeal held that the first instance judge had wrongly taken the view that the relationship between a prison officer and the Home Office was a matter of public law rather than private law and that any claim had to be raised by way of an application for judicial review. Woolf L.J, as he then was, said at paragraph 38 that in resolving the issue whether the prison officer was required to bring his claim by way of judicial review the following principles had to be borne in mind:

“1. In relation to his personal claims against an employer, an employee of a public body is normally in exactly the same situation as other employees. If he has a cause of action and he wishes to assert or establish his rights in relation to his employment he can bring proceeding for damages, a declaration or an injunction (except in relation to the Crown) in the High Court or the County Court in the ordinary way. The fact that a person is employed by the Crown may limit his rights against the Crown but otherwise his position is very much the same as any other employees. However, he may, instead of having an ordinary master and servant relationship with the Crown, hold office under the Crown and may have been appointed to that office as a result of the Crown exercising a prerogative power for, as in this case, a statutory power. If he holds such an appointment then it will almost invariably be terminable at will and may be subject to other imitations but whatever rights the employees has will be enforceable normally by an ordinary action. Not only will it not be necessary for him to seek relief by way of judicial review, it will normally be inappropriate for him to do so……..

2. There can however be situations where an employee of a public body can seek judicial review and obtain a remedy which would not be available to an employee in the private sector. This will arise where there exists some disciplinary or other body established under the prerogative or by statute to which the employer or the employee is entitled or required to refer disputes affecting their relationship. The procedure of judicial review can then be appropriate because it has always been part of the role of the court in public law proceedings to supervise inferior tribunals and the court in reviewing disciplinary proceedings is performing a similar role. As long as the ‘tribunal’ or other body has a sufficient public law element, which it almost invariable will have if the employer is the Crown and it is not domestic or wholly informal its proceedings and determination can be an appropriate subject for judicial review…….

3. In addition if an employee of the Crown or other public body is adversely affected by a decision of general application by his employer, but he contends that that decision is flawed on what I loosely describe as Wednesbury grounds, he can be entitled to challenge that decision by a way of judicial review……..

4. There can be situations where although there are disciplinary procedures which are applicable they are of a purely domestic nature and therefore, albeit that their decisions might affect the public, the process of judicial review will not be available…….”

It is to be noted that in McLaren’s case the employment dispute was regarded as a private law matter despite the fact that the claimant prison officer worked in a public institution.

20. Dr Evans also relied on Clark v University of Lincolnshire and Humberside (C.A. unreported 19 April 2000). The examiners had failed an examination for plagiarism. The Court of Appeal declined to strike out the claimant’s claim for breach of contract merely because an application for judicial review would have been more applicable. Clark, however, was not concerned with an employment situation but with the failure of an examination paper, a function that plainly in my judgment crosses the public law boundary.
21. R v The British Broadcasting Corporation ex parte Lavelle [1983] 1W.L.R 23 is a decision that illustrates the caution of the courts in permitting what are really employment issues to embark into the public law field. That case was incidentally one of the decisions cited by Woolf L.J. in McLaren as an example of his fourth principle. An employee of the BBC was refused judicial review of the decision to dismiss her. Woolf J (as he then was) said at 39B:

“…….it seems to me that while the court must have jurisdiction to intervene to prevent a serious injustice occurring it will only do so in very clear cases in which the applicant can show that there is a real danger and not merely a notional danger that there would be a miscarriage of justice in the criminal proceedings if the court did not intervene.”

22. The final authority to which it is necessary for me to refer is The Queen on the application of Galligan v The Chancellor, Masters and Scholars of the University of Oxford (unreported 22 November 1991). In that case it was conceded that the dispute was amenable to judicial review and so the question was never in issue. The decision under review was very different from those in the present case and, as I said at paragraph 52 of the judgment, the court should be very slow to intervene in a matter arising out of an employment dispute and involving the management of the University.
23. In my judgment the principle to be derived from the authorities and to be applied in a case such as the present is that the court has to look closely at the functions of the body whose decision is being questioned and if they are of a private or employment rather than a public nature there will ordinarily be no basis for the Administrative Court to entertain the dispute. The fact that the University has public functions and that its powers derive from statute will, in the circumstances, be neither here nor there. It is true that many employment cases turn on issues of dismissal whilst here the issue is promotion. But this is still, in my judgment essentially an employment or contractual dispute. The fact that Dr Evans is employed by Cambridge University rather than any other employer such as a school or a business does not make this a public law dispute. There is a useful analogy in the case of R (Heather) v Leonard Cheshire Foundation [2002] EWCA Civ 366 where the background elements of regulations and funding did not make the foundation a public authority for the purposes of the Human Rights 1998.
24. I cannot leave this case without expressing admiration for the research and erudition of Dr Evans in the preparation of her argument both written and oral. Furthermore, she has presented her argument with skill and moderation. In the end, however, I have come to the conclusion as did Turner J. 1998 that her case is in truth a private law dispute and not amenable to the jurisdiction of the Administrative Court. The University has given an undertaking that it will not argue in any breach of contract claim that its promotion procedures are not contractual, but I do not wish to say anything to encourage Dr Evans to prolong her dispute with the University by taking yet further proceedings. That, however, is entirely a matter for her. In the result, this claim for judicial review fails and it is unnecessary for me to go into any of the other matters raised at the application for permission.
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MR JUSTICE SCOTT BAKER: For the reasons given in the judgment that has been handed down the judicial review fails.

MR CLARKE: My Lord, as my Lord can see Dr Evans is not here this morning, and it does not appear that she intends to be present; she sent an email to somebody at the university about an hour ago from which, unless she sent it from a lap-top, it appears that she is in Cambridge this morning. So she is not going to come.

MR JUSTICE SCOTT BAKER: Yes.

MR CLARKE: My Lord, I invite the court to order that Dr Evans pay the costs of both applications, which have been dismissed now on a substantive basis. I do not invite my Lord to assess those costs, not least because Dr Evans is not here to make any submissions about that, but I would invite the court to accept the principle, ordinary principle, that this has now been a substantive judicial review upon which Dr Evans has failed at the public law threshold.

MR JUSTICE SCOTT BAKER: Yes.

MR CLARK: My Lord, even if you had only been dealing with it on permission, and if my Lord had refused permission, I would say it is one of those cases where an oral hearing with both parties represented, it was appropriate for the respondent to have its costs. But we have gone beyond that stage now and we are now, I would submit, in the ordinary position where the unsuccessful party should pay the costs.

Now, in fact, it may well be that the party would be able to come to some agreement about the amount of costs hereafter and it will not need to go to a full assessment, but in the absence of Dr Evans here to make any observations about that, I simply invite my Lord to make the order in principle, and the assessment can follow on for a detailed assessment in the usual way?

MR JUSTICE SCOTT BAKER: Yes. I am just wondering whether it might be desirable to say that the order should not be drawn up for seven days in order to give her an opportunity to make any further representations that she wants to on costs?

MR CLARKE: I do not anticipate that there would be a problem, my Lord. My only observation, I suppose, would be that she has known of the judgment since it was issued in draft the day before yesterday. She has known what the result was going to be this morning.

MR JUSTICE SCOTT BAKER: She has, I think, written something saying that she did not want to pay the costs.

MR CLARKE: We have not seen anything ourselves from Dr Evans.

MR JUSTICE SCOTT BAKER: Well there is a request for leave to appeal. What she says is this, this has been faxed through: "The Court of Appeal found against the university in the applicant's application for leave to appeal over costs in October 1999. The judgment was critical of the university's extravagance in running up costs beyond what was reasonable and proportionate. The judge will have noticed that two senior solicitors from Clifford Chance were present throughout the day's hearing on 9th May. If the respondent appears to seek costs at the handing down of the judgment, the applicant asks for a hearing to be set and for reasonable time to obtain the advice of a costs draughtsman so that she may be in a position to put forward properly-founded arguments about the size of the university's bill."

MR CLARKE: My Lord, what appears to me from that is that Dr Evans does not invite the court not to make any order for costs, but she might simply take issue as to the quantum. In those circumstances, my Lord, I would suggest that the appropriate order is an order for costs to be assessed, and that should not be made subject to any further period of challenge. But that, of course, Dr Evans would have every opportunity on the assessment to make all appropriate points.

The Court of Appeal matter she was referring to, my Lord, was simply a county court case where a costs order was made favourably to the university, and all that happened there was that Dr Evans obtained leave to appeal in respect of the costs order. The matter did not go any further because it was resolved by agreement between the parties.

But, my Lord, in the circumstances Dr Evans has effectively signalled to the court her intention to argue on quantum.

MR JUSTICE SCOTT BAKER: That seems pretty clear and she is not, I think, taking issue, according to this document, with the principle.

MR CLARKE: Yes, and I would suggest that, my Lord, rather than saying that this order should be left open or not drawn for any period of time, my Lord should make the order. The order then goes-- obviously the costs then go for assessment. If the parties cannot agree the matter then the costs judge will have to deal with it and, of course, Dr Evans can take such advice on costs as it is appropriate and make such submissions as she wishes.

MR JUSTICE SCOTT BAKER: Yes, very well, I shall make an order for costs and direct that there is to be a detailed assessment.

MR CLARKE:: My Lord, I am grateful.

MR JUSTICE SCOTT BAKER: Now, as far as her request for permission to appeal, what she says is this: "In view of the immense importance to academic staff at universities of this question of access to public law remedies and its considerable significance as a public interest issue, the applicant seeks permission to appeal. The applicant takes the opportunity to mention that at the time of sending this, on the morning of 5th July, she has received no notice from the respondent that it intends to be present in court for the handing down of the judgment to seek costs. She has had no schedule of the respondent's costs in this matter at any time. She repeats her request to be allowed a hearing if the respondent seeks an award of costs."

MR CLARKE: Well it seems we are going back on to that ground, my Lord, but I would suggest that really does not alter the position as to costs, that is a leave to appeal matter. I would simply say that what my Lord has done is really decided this case as applying well-established principles as to the public/private law divide insofar as it concerns employment disputes, and my Lord has averted to a number of leading cases on that. Although it might be thought to be of importance to Dr Evans, it is not really a case of pressing public interest or general public interest, in my submission. Nor is it a case which establishes any new legal frontier. My Lord has, as I indicated, applied the well-established to principles to the facts of this case and it is not a matter upon which leave to appeal should be granted, certainly not by this court. If Dr Evans wishes to take it further, then perhaps she will try the Court of Appeal.

MR JUSTICE SCOTT BAKER: I am going to refuse permission to appeal. It seems to me that there has already been far too much litigation in relation to this matter and I am not prepared to do anything to encourage it.

As far as the costs are concerned, again, it appears from these two documents that the issue is as to quantum. In the circumstances the order will be made as I indicated.

MR CLARKE: I am most grateful, my Lord.

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