England and Wales High Court (Administrative Court) Decisions

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

		St Dunstan's House Fetter Lane London
		17 December 2004

1. MR JUSTICE JACKSON: This judgment is in seven parts, namely part 1, introduction; part 2, the facts; part 3, the present proceedings; part 4, the first and second grounds of claim; part 5, the third, fourth and fifth grounds of claim; part 6, the sixth and seventh grounds of claim; part 7, remedy.

Part 1: Introduction

2. These proceedings involve a challenge brought by school governors and three parents to a decision of the Schools Adjudicator. The case is on any view an urgent one. It has moved from the issue of proceedings to judgment in the space of three weeks and two days. May I begin by congratulating all counsel, both firms of solicitors and both parties on the speed and efficiency with which this case has been prepared and presented. Cooperation between litigants is vital to the smooth running of civil litigation and is in the interests of all parties. I commend to all litigants the cooperation which there has been between the parties in this case to the benefit of all and to the benefit of the public interest.
3. It is first necessary to set out the statutory framework within which this case arises. The principal statute is: the School Standards and Framework Act 1998, to which I shall refer as "the 1998 Act". Section 25 of the 1998 Act provides:

"(1) The Secretary of State shall appoint for England such number of persons to act as adjudicators for the purposes of this Act as he considers appropriate.

(2) Any matter which by virtue of this Act is required to be referred to 'the adjudicator' shall be referred to such person appointed under this section as may be determined in accordance with regulations under Schedule 5."

4. Section 69 of the 1998 Act provides:

"(1) Subject to section 71, in relation to any community, foundation or voluntary school-

(a) the local education authority and the governing body shall exercise their functions with a view to securing, and

(b) the head teacher shall secure

that religious education is given in accordance with the provision for such education included in the school's basic curriculum by virtue of [section 80(1)(a) or 100(1)(a) of the Education Act 2002].

...

(3) For the purposes of this Part a foundation or voluntary school has a religious character if it is designated as a school having such a character by an order made by the Secretary of State.

(4) An order under subsection (3) shall state, in relation to each school designated by the order, the religion or religious denomination in accordance with whose tenets religious education is, or may be, required to be provided at the school in accordance with Schedule 19 (or, as the case may be, each such religion or religious denomination)."

5. Section 84 of the 1998 Act provides:

"(1) The Secretary of State shall issue, and may from time to time revise, a code of practice containing such practical guidance as he thinks appropriate in respect of the discharge by-

(a) local education authorities,

(b) the governing bodies of maintained schools,

(c) appeal panels, and

(d) adjudicators,

of their respective functions under this Chapter.

...

(3) It shall be the duty of-

(a) each of the bodies and persons mentioned in subsection (1) when exercising functions under this Chapter, and

(b) any other person when exercising any function for the purposes of the discharge by a local education authority, or the governing body of a maintained school, of functions under this Chapter,

to have regard to any relevant provisions of the code."

6. Section 90 of the 1998 Act provides:

"(1) Where--

(a) admission arrangements have been determined by an admission authority under section 89(4), but

(b) a body consulted by the admission authority under section 89(2) [who were, or would but for subsection (2A) of section 89 have been, required to be consulted by the admission authority under subsection (2) of that section] wish to make an objection about those arrangements, and

(c) the objection does not fall within any description of objections prescribed for the purpose of this paragraph,

that body may refer the objection to the adjudicator.

...

(3) On a reference under subsection (1) or (2) the adjudicator shall either-

(a) decide whether, and (if so) to what extent, the objection should be upheld, or

(b) in such cases as may be prescribed, refer the objection to the Secretary of State for that question to be decided by him.

...

(6) Where the adjudicator or the Secretary of State decides that an objection referred to him under this section should be upheld to any extent, his decision on the objection may specify the modifications that are to be made to the admission arrangements in question.

...

(8) The decision of the adjudicator or the Secretary of State on the objection shall, in relation to the admission arrangements in question, be binding on the admission authority and on all persons by whom an objection about those arrangements may be made under subsection (1) or (2); and if that decision is to uphold the objection to any extent, those arrangements shall forthwith be revised by the admission authority in such a way as to give effect to the decision.

...

(10) Regulations shall make provision for the cases to be referred to the Secretary of State under subsection (3)(b) to include cases where the objection is concerned with admissions criteria relating to a person's religion or religious denomination."

7. Pursuant to section 69(3) and (4) of the 1998 Act the Secretary of State has made a statutory instrument which designates The London Oratory School as a voluntary aided Roman Catholic school. I shall refer to this school as "the Oratory School".
8. Pursuant to section 84 of the 1998 Act, the Secretary of State has published a code of practice relating to school admissions. I shall refer to this document as "the Code". The edition of the Code which is relevant to the present case is that which was published in February 2003.
9. Pursuant to section 90(10) of the 1998 Act, the Secretary of State has made regulations, titled "Education (Objection to Admission) Regulations 1999". Regulation 7 of those regulations provides:

"(1) The adjudicator shall refer an objection to the Secretary of State under section 90(3)(b) in a case where the objection is about any criterion for admission to a school relating to a person's religion, religious denomination or religious practice."

10. The Education Act 2002 provides as follows in section 20:

"(1) For every maintained school there shall be an instrument (known as the instrument of government) which determines the constitution of the governing body and other matters relating to the school.

(2) Regulations shall make provision with respect to the making of instruments of government, the matters to be dealt with in such instruments, the form of such instruments, and the review and variation of such instruments."

11. Regulations governing the making of such instruments have been duly made pursuant to section 20 of the Education Act 2002. These are the School Governance (Constitution) (England) Regulations 2003. Regulation 29(1) of these regulations provides:

"(1) The instrument of government for a maintained school must set out-

...

(j) where the school is a foundation or voluntary school which has a religious character, a description of the religious ethos of the school.

..."

12. The Oratory School has an Instrument of Government which complies with the provisions of the Education Act 2002 and the School Governance (Constitution) (England) Regulations 2003.
13. The Instrument of Government for the Oratory School includes the following passage:

"Trusteeship

2. The school was founded by and is in the trusteeship of the Congregation of the Oratory of St Philip Neri, London, which is a Society of Apostolic Life of Pontifical Right.

Ethos

3. The school is part of the Catholic Church. It is conducted as a Catholic School in accordance with the canon law and teachings of the Roman Catholic Church and the trust deed of the London Oratory Charity and, in particular:

(a) religious education is to be in accordance with the teachings, doctrines, discipline and general and particular norms of the Catholic church;

(b) religious worship is to be in accordance with the rights, practices disciplines and liturgical norms of the Catholic church;

and at all times the school is to serve as a witness to the Catholic faith in Our Lord Jesus Christ.

The school aims to assist Catholic parents in fulfilling their obligation to educate their children in accordance with the principles and teaching of the Church; to do this within an environment which will encourage and support the spiritual, physical, moral and intellectual development of the child and help him to grow towards full Christian maturity; and to provide a wide and rich range of educational and cultural experiences which will encourage children to discover and develop their potential to its maximum and to strive for high standards of excellence in all activities."

14. That recitation of statutory provisions and similar documents will suffice for present purposes. It is now possible to turn to the facts of the instant case.

Part 2: The Facts

15. St Philip Neri was an Italian priest who lived in the 16th century and devoted much of energies to teaching young men. He formed an influential movement in the Catholic Church called the Congregation of the Oratory. St Philip Neri is the patron saint of the Oratory School in London. He is also the saint who has given his name to the London Oratory Church. The Oratory School and the Oratory Church have close links with one another. They maintain liturgical traditions which derive from the Congregation of the Oratory in the 16th century.
16. The Oratory School was founded in 1863 by the Fathers of the London Oratory for the benefit of Catholic children from all over London. The school continues to take Catholic children from all over London. It maintains high standards of education. Places at the school are much sought after.
17. In addition to providing an excellent education, the school also has a very intense religious life.
18. Details of the religious life of the school are set out in the statements of Mr McIntosh, the headmaster, and Father Harrison, the Chairman of the Governors. Suffice it to say that both staff and pupils are fully committed members of the Catholic Church and religious worship plays a substantial part in school life.
19. The Oratory School has always taken steps to ensure that new pupils admitted to the school are fully committed and practising members of the Catholic Church. The religious credentials of prospective pupils are established, first by the application forms which the parents fill in, as well as priests, and then by interview.
20. In February 2003 the Secretary of State published a revised version of the Code. Paragraph 3.16 of the Code, in its new form, read as follows:

"The Admissions Code previously in force allowed church schools to interview parents and/or prospective pupils, but only for the purpose of safing religious or denominational commitment where this is provided for in their admission arrangements and oversubscription criteria. It also allowed boarding schools to interview pupils, but only insofar as necessary to assess the suitability of the child for a boarding place. Other interviewing was not allowed. In future, for the admission round leading to September 2005 intakes and subsequent admissions, no parents or children should be interviewed as any part of the application or admission process, in any school except a boarding school as above. ..."

21. On 4th November 2003 the Governors of the Oratory School met and considered their admission arrangements for September 2005. They considered these admission arrangements in the light of the revised code which had been issued by the Secretary of State.
22. The relevant part of the minutes of that meeting of the Governors reads as follows:

"11 Admission arrangements

The Headmaster referred to the discussions about the Admission Arrangements at previous meetings of the Governing Body. The school had approved the arrangements for 2004. The current proposals concerned 2005, for which new regulations had been introduced. The Headmaster explained the new statutory coordinated admission arrangements to the Governors.

The Finance and General Purposes Committee had considered the school's admissions arrangements in the light of the new Code of Practice. In particular it had considered the matter of interviewing, which the new code sought to abolish. The Committee believed that the school could not properly and fairly test its admission criteria in respect of religious practice and had recommended that the school should continue to interview candidates.

A very full discussion of the arrangements and the new Code of Practice took place. The Headmaster reminded the Governing Body that the Education Act 1998 s84(3) required an admission authority to have regard to any relevant provisions of the Code of Practice issued by the Secretary of State. James Cooper confirmed this and explained that 'have regard to' did not mean 'is required to'.

The Headmaster reminded the Governing Body that the school had been founded in 1863 to serve Catholic families in London. It had never admitted pupils by reference to proximity, parish of residence or LEA area. He explained that the school draws its pupils from over 400 parishes and primary schools, four dioceses and 40 local educational authority areas.

The Governing Body wished to retain this tradition and retain the current admission criteria, which, together, it believed were central to the character of the school.

The Governing Body believed that parents have a right to an interview and an opportunity to represent at interview how they meet the admission criteria and their commitment to their faith, the Church, Catholic education and the ethos of the school.

The Headmaster said that because the school drew its pupils from such a wide catchment area, which included over 400 parishes, it had very considerable experience, probably more than any other school in London, of priests' references. He explained that experience had shown that references were inconsistent and frequently unreliable, and certainly not a suitable basis for determining the degree to which applicants meet the admission criteria in respect of religious practice and commitment. He said that under the current system, priests' references informed the process and supported applications, but they did not determine the degree to which applicants met the criteria for admission. The Clerk stressed, and the Headmaster agreed, that the school must retain evidence where there had been a contradiction between candidates' application forms and the results of interviews.

The Headmaster said that without an interview, parents would be at the mercy of the reference-writing skills, integrity, conscientiousness and reliability of the priests providing the references and the school would not be able properly and fairly to determine the degree of practice and commitment, which would seriously undermine and compromise the integrity and reliability of the admission process itself.

The Governing Body was unanimous in the view that the school's criteria for admission in respect of religious practice and commitment could only be properly and fairly applied and determined by interview.

The Governors agreed to adopt the proposed draft arrangements for 2005, which retain the interview, and asked the Headmaster to consult the relevant authorities and to report the outcome at the next full meeting of the Governing Body in February, when the arrangements for 2005 would be determined in accordance with the statutory requirements."

23. In due course the Governors finalised and issued a document setting out the admission arrangements for 2005. This document was approved by the Governors at their meeting on 23rd February 2004. The relevant part of that document for present purposes reads as follows:

"ADMISSION TO THE FIRST FORM

The school admits 160 boys to the first-form without reference to ability. In the event of over subscription, the arrangements set out below will be used to determine 160 candidates to whom the places will be offered. Up to 20 of the candidates to whom places are not offered will be placed in rank order (as determined in accordance with the admission criteria) on a reserve list. Candidates on the reserve list will be considered for vacancies which occur between the date on which offers are made and the beginning of the new academic year.

Priority will be given to practising Catholics for whom The London Oratory School is the first choice of school. Where an applicant also nominates another school as first choice, the application to The London Oratory School will be considered as a second choice application. The list of candidates may be shared, in confidence, with other schools and LEAs with a legitimate interest in applications to the first-form.

Normally, the Headmaster makes arrangements for all applicants to be interviewed, although the Governors reserve the right not to interview non-Catholic applicants or applicants who have not made the school their first choice. The interview is an important and decisive part of the admission procedure and its function is to assess catholicity, practice and commitment and whether the aims, attitudes, values and expectations of the parents and the boy are in harmony with those of the school.

Oversubscription criteria

The places will be offered to the most suitable candidates for whom the school is their first choice and the decision will be made in accordance with the following criteria, in order:

Religious criteria

1. Whether the candidate and his Catholic parent (where only one parent is a Catholic) or parents are practising members of the Catholic Church.

2. Commitment by the candidate and his Catholic parent or parents to: (i) the Catholic Church; (ii) the life of the parish; (iii) the ethos and expectations of The London Oratory School; and (iv) Catholic education.

Other criteria

3. Whether the candidate has a brother or sister at the school.

4. Whether the candidate has a parent who is employed at the school.

5. Whether the applicant or candidate lives in, or is actively involved in the life of, the London Oratory Parish.

6. Whether the candidate attends the Oratory primary school.

In the event of a tie for a place after the above criteria have been applied, the decision will be determined by the shortest journey (time) from home to the school, using the Transport for London Journey Planner."

24. There are footnotes to the religious criteria set out in this passage. The first part of those footnotes reads as follows:

"[1] All applicants must complete a Religious Inquiry form regarding religious practice and commitment which a Catholic priest, normally the parish priest, will be asked by the school to endorse and on which he will be invited to comment. Section B of the form (Priest's Reference) must be left blank when the form is returned to the school by the applicant.

...

[2] 'Whether the candidate and his or her Catholic parent or parents are practising members of the Catholic Church' is determined (i) by reference to the current Code of Canon Law, canons 1246, 1247, 1248, 867, 913 and 914, copies of which are reproduced for reference at the end of this document; (ii) relevant sections of the current Catechism of the Catholic Church; (iii) evidence of religious practice for a sustained period; (iv) evidence of commitment to the parish; and (v) knowledge of the faith.

'Practice for a sustained period' normally means for a period of at least three years."

25. In due course the local education authority approved the admission arrangements published by the Oratory School. A different view was taken, however, by the Governors of the Peterborough Primary School. On 17th May 2004 the Peterborough Governors wrote to the Office of the Schools Adjudicator objecting to two aspects of the Oratory's schools admission arrangements. These were (1) the proposal to interview applicants and (2) certain aspects of the oversubscription criteria. In relation to the first matter, the Peterborough Governors pointed out that the use of interviews was contrary to paragraph 3.16 of the Code.
26. In due course Dr Elizabeth Passmore was the Schools Adjudicator assigned to deal with this matter. From now on I shall refer to Dr Passmore as "the Adjudicator".
27. The Adjudicator duly dealt with the first of the two complaints made by the Peterborough Governors. She did not, however, deal with the second complaint. That was referred to the Secretary of State pursuant to section 90(3)(b) of the 1998 Act and regulation 7 of the Education (Objections to Admission Arrangements) Regulations 1999.
28. During the period following 17th May 2004 the Adjudicator corresponded (a) with the Peterborough Governors in order to elucidate their objections and (b) with the Oratory School in order to elicit the School's responses. In the course of this correspondence the Oratory School sent to the Adjudicator the minutes of the Governors meeting on 3rd November 2003. The Oratory School also submitted copies of the documentation used in its admission process. On 1st September 2004 the Oratory School sent to the Adjudicator a document headed "Final Submission". This document included the following passage:

"The Governors believe that without interviews it would not be possible effectively to test the religious practice and commitment in a school which is heavily oversubscribed by practising Roman Catholics. The only way to distinguish between those who do meet the criteria is through personal assessment: it cannot be done on paper assessments alone.

The Governors are concerned also that, if interviews were to be stopped, there would be a real risk of some applicants being placed at a social disadvantage. Were applications to be on paper alone, articulate middle-class applicants - who will probably live in areas closer to the School - may stand a better chance of successfully applying to the School compared with other less articulate applicants from more disadvantaged areas.

The School has considerable experience and expertise in assessing candidates against the religious criteria. The interview profile and questions used at the interview demonstrate that judgements are reasoned, based on reasonable grounds and applied with consistency across all applicants, and that the sole purpose of the interview is to test the religious criteria.

Extensive experience has proved that paper references from priests are not, of themselves, reliable. To rely on priests' references would place applicants at the mercy of the reference- writing ability and assiduousness of the priests. Without the interview the chances of the articulate, educated middle-class applicants would be improved.

Given the unique nature of the area from which the School draws its pupils - up to 40 London Boroughs and 400 parishes - any assessment of written applications becomes more difficult. Under the current Admissions Arrangements, the social and ability profiles of pupils at the school are broad and balanced and are more representative of the population of London than those at schools which admit children only from the immediate area. The Governors are proud of this tradition, which they regard as fundamental to the character of the School, and strongly wish to maintain it.

Referring to the Code of practice, the School believes that it cannot be treated as having the force of a Statute. It is strong guidance, for which the Governors are grateful and on which they drew in their discussions over the Admission Arrangements. If it were Parliament's intention that interviews be forbidden, this would have been done through primary or secondary legislation.

The Governors believe that they have exercised the discretion given to them by the Act conscientiously and reasonably, having proper regard to the Code. They were not concerned to debate the general merits or otherwise of interviewing. It was their judgement, after much debate and careful consideration of the Code, that they wished to continue assessing applications by interviewing."

29. During early September 2004 the Adjudicator considered the issues and drafted her determination. In that determination she upheld the objection of the Peterborough Governors and ruled that all references to interviewing applicants aged 11 plus should be deleted from the Admission Arrangements.
30. The crucial part of the Adjudicator's determination reads as follows:

"15. I have also read letters from the clerk to the governing body in which he emphasises that the governors had regard to the Code and considered legal advice on the meaning of 'have regard to'. As an adjudicator I, too, must have regard to the Code issued by the Secretary of State. The school asserts that interviewing to assess catholicity is an important and decisive part of the admissions process. In correspondence from the school I note the points made about the words 'practice and commitment' relating to catholicity. Also that the extract from the Instrument of Government sets out the school's Catholic aims and Catholic ethos and it is to these aims and ethos that assessment during the interview of 'aims, attitudes, values and expectations' is directed. However, applicants also have to complete a detailed supplementary application form that contains questions about the applicants' and candidate's catholicity and a religious inquiry form. The school consults the parish priest about this latter form.

16. Although the school provides guidance notes for the interviewer for establishing the extent to which applicants and candidates meet the religious criteria of the oversubscription criteria, this guidance does not say anything about how to avoid being influenced by aspects that are not strictly those of catholicity. Indeed, some of the examples of questions to be asked, such as those in the sections headed 'Ten Commandments' and 'Scriptures' test knowledge that goes beyond assessing catholicity and could apply equally to other Christian denominations. Furthermore, there is no guidance on how to avoid taking into account attributes such as the communication or reasoning skills of the parents/guardians or of the candidates. I do not consider interviewing applicants and the boy for whom a place is sought is necessary or desirable, in the light of the clear guidance in the Code. I am therefore of the view that in this case the Code ought to be followed."

31. Although the Adjudicator had completed the preparation of her determination by 10th December she did not issue it on that date. Instead, rather unfortunately, the Adjudicator waited until 15th October, when the Secretary of State was in a position to issue his determination on the matters referred to him. The 15th October was just one week before the final date of submissions of written applications for entry to the school in September 2005.
32. On 15th October both determinations were issued. In relation to the oversubscription criteria the Secretary of State partially upheld the objection of the Peterborough Governors. The Secretary of State determined that the oversubscription criteria should be amended to read as follows:

"Religious criteria

1. Whether the candidate and his Catholic parent (where only one parent is a Catholic) or parents are practising members of the Catholic Church.

2. Commitment by the candidate and his Catholic parent or parents to

(i) the Catholic Church;

(ii) a good knowledge of the life of parish where they live or attend Mass;

(iii) ...

(iv) Catholic education.

Other criteria

3. Whether the candidate has a brother or sister at the school.

4. Whether the candidate has a parent who is employed at the school.

5. Whether the applicant or candidate (a) lives in the London Oratory parish or (b) belongs to one of the following parish organisations or activity groups:

- The Oratory Junior Choir

- St Philip's Servers' Guild

- The Oratory Cub Pack

- Brothers of the Little Oratory

- St Philip Neri Circle

- Children's Catechism Classes before and after First Communion

- Children's Mass in the Little Oratory

- Mother and Children's Catechism Group

- Society of St Vincent de Paul.

6. Whether the candidate attends the Oratory Primary School."

33. The Governors of the Oratory School accept the Secretary of State's determination concerning amendments to the oversubscription criteria. However, both the Governors and also certain parents of pupils or prospective pupils were aggrieved by the Adjudicator's decision to ban interviewing. Accordingly they commenced the present proceedings.

Part 3: The Present Proceedings

34. By a claim form issued on 24th November 2004 the Governors of the Oratory School and three fathers of pupils or prospective pupils applied to the Administrative Court to quash the determination of the Adjudicator. This application was made on seven grounds. The seven grounds set out in the claim form are as follows:

1. Failure to consider the school's case.

2. Failure to apply the Code appropriately.

3. The determination was based on a point which was not included in grounds of objection and which the school had no opportunity to comment on.

4. There was a disproportionate determination/ failure to consider other outcomes.

5. The Adjudicator's consideration of the guidance notes was Wednesbury unreasonable.

6. Lateness of the Adjudicator's decision.

7. There was a breach of Convention rights/ failure to take Convention rights into account as relevant factors.

35. It should be noted that the Governors of the Oratory School are the 1st Claimants in these proceedings. The three parents who have joined in these proceedings are the 2nd, 3rd and 4th claimants. The parents have been joined in the action because they can, but the School cannot, advance the seventh ground of claim.
36. On 29th November I considered the Claimants' application for permission to proceed with their claim for judicial review on the papers. I gave directions for the filing of evidence and ordered that the application for permission and the substantive hearing should take place on the same occasion at a "rolled-up hearing".
37. The rolled-up hearing of these matters commenced yesterday and is concluding today. Mr Charles Béar QC represents the claimants and Mr Jonathan Swift represents the Adjudicator. I am grateful to both counsel for their considerable assistance at the present hearing. I am also grateful to Mr Oldham, junior counsel for the Claimant, who has not spoken but has provided assistance to the court.
38. Having set out the procedural history of this case, I can now turn to the grounds of claim.

Part 4: The First and Second Grounds of Claim

39. The first and second grounds of claim, as presented in argument, are closely linked. Indeed, as both counsel have accepted, ground 2 really merges into ground 1. The essence of the claimants' case is that the Adjudicator has applied paragraph 3.16 of the Code to the Oratory School without regard to the particular circumstances of that school and without addressing arguments which had been presented to her.
40. Let me first consider the statutory effect of the Code. Section 84(3) of the 1998 Act imposes an obligation, first on the Governors of the Oratory School and then on the Adjudicator "to have regard to any relevant provisions of the Code". The phrase "to have regard to" means to take into account. It does not connote slavish obedience or deference on every occasion. It is perfectly possible to have regard to a provision but not to follow that provision in a particular situation: see the decision of the Privy Council in Barber v Minister of Environment 9th June 1997 at page 5 of the transcript.
41. I turn next to the role of the Adjudicator. This was neatly summarised by Ouseley J in R (Metropolitan Borough of Wirral) v The Schools Adjudicator [2001] ELR574 at paragraph 15:

"So it is plain that the adjudicator is exercising an original jurisdiction as to the appropriateness of admission arrangements. He is not reviewing a local education authority's decision, though obviously what they determine and why is very material."

As Ouseley J pointed out later in his judgment, the adjudicator is not simply resolving a dispute between the parties, he or she has specialist expertise and brings that to bear upon the issues.

42. Let me now return to the present case. The Oratory School, in its various written submissions to the Adjudicator, had put forward a formidable case which I would summarise as follows:

1. The Oratory School is a school whose function is to provide education for fully committed and practising Catholics. The extent of a child's commitment to catholicism is a major part of the admissions criteria.

2. The School is heavily oversubscribed. Parents are willing to go to some lengths to secure admission for their children.

3. Experience has shown that the written application forms, completed by parents and by priests, are sometimes unreliable for the reasons summarised in the minutes of the Governors' meeting on 3rd November 2003 and in the School's final submission dated 1st September 2004. This problem is exacerbated by the school's wide catchment area.

4. Experience has shown that interviewing applicants and their parents is an effective method of overcoming the problem and of establishing which candidates qualify for admission by reference to the published criteria.

43. The Adjudicator, in my judgment, simply fails to address this argument. In particular she does not mention in her determination the School's past experience of unreliable written applications. I quite accept that there is now much more evidence before this court about the matter than there was before the Adjudicator. In particular, I have witness statements from teachers who describe the shortcomings of some application forms and how these were exposed in interview. Nevertheless, the matter was clearly raised in the written material before the Adjudicator and it simply was not dealt with in her determination.
44. As Ouseley J observed in the Wirral case, the decision originally taken in the Wirral case by the local education authority and the reason for that decision is very material, and this is something which the adjudicator must take into account.
45. If the adjudicator fails to take into account a material consideration, then her decision may be quashed: see R (Watford Grammar School for Girls and Watford Grammar School for Boys) v Adjudicator for Schools [2003] EWHC 2480 Admin; [2004] ELR 40.
46. In the present case, for the reasons set out above, it seems to me that the Adjudicator did fail to take into account a highly material consideration. Accordingly her decision must be quashed on that ground.
47. The second ground of claim is in essence an alternative approach to the same matter. The Adjudicator had regard to paragraph 3.16 of the Code, as she was entitled and obliged to do. However, the Adjudicator applied that provision without taking into account the special circumstances of the Oratory School as disclosed by the written material submitted to her. I therefore regard the second ground of claim as an alternative to the first ground. Either approach leads to the conclusion that the Adjudicator's determination must be quashed.

Part 5: The Third, Fourth and Fifth Grounds of Claim

48. These three grounds of claim are linked and they all focus upon paragraph 16 of the Adjudicator's determination. In essence grounds 3, 4 and 5 are as follows:

Ground 3: the criticism made of the guidance notes for interviews was not foreshadowed in correspondence either by the Peterborough Governors or the Adjudicator.

Ground 4: the criticism of the guidance notes, even if well founded, is not a ground for rejecting interviews. That would be a disproportionate response. The proper response would be to amend the guidance notes.

Ground 5: the specific criticisms which with the Adjudicator makes of certain questions in the guidance notes are so unreasonable as to fail the Wednesbury test.

49. Let me deal first with ground 3. On this issue I accept the submissions of Mr Swift. The Oratory School had put the interview guidance notes before the Adjudicator as part of the School's positive case. The Adjudicator was entitled to consider the guidance notes and she duly did so. The Adjudicator was thereby responding to the School's positive case. Accordingly, I reject ground 3 of the Claimants' claim.
50. With all due respect to the pleader, it seems to me logical to deal next with ground 5 of the Claimants' claim before I tackle ground 4. Let me therefore turn to ground 5.
51. In the course of paragraph 16 of her determination the Adjudicator says this:

"... this guidance does not say anything about how to avoid being influenced by aspects that are not strictly those of catholicity. Indeed, some of the examples of questions to be asked, such as those in the sections headed 'Ten Commandments' and 'Scriptures' test knowledge that goes beyond assessing catholicity and could apply equally to other Christian denominations."

52. I am afraid that I find this passage baffling. If a child is a practising Catholic one would expect him to have some familiarity with the Ten Commandments and Scriptures. These are perfectly proper, indeed sensible, topics to have in interview. I quite agree that if these were the only questions asked then practising Christians of other denominations may also achieve a high score. But this is not the case. The questions about the Ten Commandments and the Scriptures must be seen in their context. That context includes many questions about matters which differentiate Catholicism from other forms of Christianity. I am afraid that I have come to the conclusion that the passage which I have just quoted from paragraph 16 of the determination fails the Wednesbury test. No reasonable adjudicator could conclude that questions about the Ten Commandments and the Scriptures were inappropriate for inclusion in the Oratory School's interviews.
53. I come next to ground 4. The only tenable comment which the Adjudicator makes about the interview guidance notes appears in the third sentence of paragraph 16 of the determination. The obvious response to this comment is that a small addition should be made to the guidance notes in order to assist interviewers in disregarding the communication or reasoning skills of parents. To propose that on this ground the whole interview process should be banned would be a disproportionate and unreasonable response.
54. Let me now draw these threads together. I reject the third ground of claim but uphold grounds 4 and 5. It is not necessary to speculate whether or not grounds 4 and 5 in isolation would make it appropriate to quash the Adjudicator's determination. Grounds 4 and 5 do not stand in isolation. The Claimants' success on these two grounds reinforces my earlier conclusion that the Adjudicator's decision must be quashed.

Part 6: The Sixth and Seventh Grounds of Claim

55. The sixth ground of claim is based upon the long period of delay before issuing the Adjudicator's determination. There is an issue between the parties as to the extent, if at all, that the School acquiesced in that delay. There are also issues as to the extent of the prejudice caused to the Claimants by the delay. In view of my findings on the earlier grounds it is not necessary to go into this aspect of the case. Suffice it to say that I regard the delay between 10th September and 15th October as being most unfortunate. The Adjudicator's decision could not have been affected by the matters which the Secretary of State was considering. In my view it is desirable that once an adjudicator reaches a firm decision which is as far reaching as the determination in the present case that decision should be promulgated without delay. This, however, is a comment on my part. For the reasons indicated, it is not necessary for this court to reach a decision on ground 6.
56. I turn now to ground 7 of the Claimants' claim. Article 2 of Protocol 1 to the European Convention on Human Rights (which is scheduled to the Human Rights Act 1998) reads as follows:

"{}No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions."

57. The 2nd, 3rd and 4th Claimants, who are parents of pupils or prospective pupils at the Oratory School, contend that their rights under this Article are being breached. This argument is put essentially on two bases:

1. The removal of interviewing from the admissions process makes it more difficult for appropriate candidates to obtain places at the Oratory School. Therefore the rights of Catholic families who are turned away are infringed.

2. The removal of interviewing from the admissions process will also affect existing pupils at the School. The ethos of the School will change as pupils are admitted with a lesser commitment to the Catholic faith.

58. I reject both limbs of this argument. As to the first limb, the 2nd, 3rd and 4th Claimants do have a right to secure education for their children at schools which conform with their Catholic faith. This cannot be elevated, however, into a right to be educated at the Oratory School. There are other Catholic schools in the London area whose excellent work must not be overlooked.
59. I turn now to the second limb. If the admissions process of the Oratory School is impaired, then this may lead to the admission of pupils with a lesser commitment to the Catholic faith. Over time this will have some effect on the overall make up of pupils at the School. Nevertheless, the Oratory School will still remain a Catholic school. Religious worship and other Catholic activities will be an important part of school life. The staff will no doubt continue to be committed and practising members of the Catholic Church. In my view it cannot be said that the rights of existing pupils or their parents under Article 2 of the 1st Protocol will be infringed if interviewing is removed from the admissions process.
60. Accordingly the seventh ground of the claimant's claims fails.

Part 7: Remedy

61. All of the Claimants' claims are properly arguable. I therefore grant permission to proceed with the claims on all grounds. For the reasons set out in parts 4 and 5 of this judgment, the claimants succeed on grounds 1, 2, 4 and 5 of their claim. The claimants fail on grounds 3 and 7. I make no finding in relation to ground 6.
62. The consequence of the Claimants' success on grounds 1, 2, 4 and 5 must be that the Adjudicator's determination dated 15th October 2004 is quashed. Mr Swift is quite right in saying that the court has a discretion whether or not to quash. Nevertheless in my judgment it would not be right to allow a determination which is flawed in the respects indicated in this case to stand.
63. The next question which arises is whether I should remit the matter to the Adjudicator so that she can make a fresh determination upon the objection raised by the Peterborough Governors pursuant to section 90(3) of the 1998 Act. Mr Swift, in his forceful submissions, both yesterday and today, argued that that is the proper course of action.
64. I reject this submission for eight reasons:

1. The closing date for applications to the Oratory School was 22nd October 2004.

2. All the applicants, or at least the greater majority of applicants, completed application forms in the belief that they would have an opportunity to supplement these forms by what they said in interview.

3. The School is required to provide its priority ordered list of successful applications and reserve candidates to the local education authority by 24th January 2005. For the reasons set out in a letter from the London Borough of Hammersmith and Fulham Education Department dated 16th December 2004, it is not possible for that date to be extended.

4. Despite the massive disruption which has been caused to Oratory School's admission process it will still just be possible for the School to carry out its admission process, including interviews, by the due date. However, any further period of delay is simply intolerable.

5. If interviewing is to be omitted at this late stage then all the applicants must be given the chance to submit further written material.

6. If this matter is remitted to the Adjudicator, then, as a matter of reality, and in the light of past experience, a further period of delay is inevitable.

7. Now that the determination dated 15th October has been quashed, the status quo is restored. It would be unreasonable in the Wednesbury sense at this late stage to force the Oratory School to change its admission process by omitting interviews.

8. Accordingly, if this court remits the matter now to the Adjudicator there is only one decision which lawfully the Adjudicator could make. That would be to dismiss the objection to interviewing raised by the Peterborough Governors.

65. I should add this comment. The decision which I have made relates solely to the admission arrangements for September 2005. It is now simply too late to deal with the objection to interviewing which has been raised. If in future years the Governors of the Oratory School propose to interview applicants for places and if in future years objection is taken to that proposal, such an objection can be put before the Schools Adjudicator and all the issues can be considered afresh. The arguments against interviewing can be deployed and the arguments advanced by the School in favour of interviewing, including the extensive material which has been lodged in the course of this hearing, can also be deployed. The outcome of any future objection to admissions procedures in future years will be a matter for the Adjudicator, upon which I make no comment. I am dealing in this case with the lawfulness of a determination made in respect of the admissions arrangements for September 2005.
66. In the result the Claimants succeed on their overall claim. The decision of the Adjudicator is quashed and the School will be permitted to interview candidates in the present round of applications. I invite counsel to assist the court in formulating an order which will give effect to these conclusions.
67. MR BÉAR: My Lord, perhaps it would be possible for us to do that, and, if your Lordship is present next week, to hand it on Monday; unless your Lordship would like it to be done now?
68. MR JUSTICE JACKSON: No, certainly not, it is an urgent case and must be dealt with today and the drafting of an order is a simple clerical matter.
69. MR BÉAR: Yes, it is.
70. MR JUSTICE JACKSON: I am happy to rise for five minutes if you wish to confer with Mr Swift.
71. MR BÉAR: My Lord, perhaps I can just try to deal with it on my feet because it does not seem to me that it is going to require an enormous amount of time.
72. MR JUSTICE JACKSON: Certainly.
73. MR BÉAR: 1. That the determination of the Adjudicator dated 15th October 2004 be quashed.
74. That the objection of Peterborough Primary School dated 17th May 2004 shall not be remitted to the Adjudicator.
75. MR JUSTICE JACKSON: Objection of the Governors --
76. MR BÉAR: Yes.
77. MR JUSTICE JACKSON: -- of Peterborough Primary School dated 17th May 2004 --
78. MR BÉAR: Yes. -- shall not be remitted to the Adjudicator.
79. And then 3: and it is declared that the School -- I should say the 1st Claimant -- shall be permitted to interview parents and candidates in accordance with its published admission arrangements.
80. MR JUSTICE JACKSON: Do you need a declaration in terms of 3 at all, or not? I would have thought that the relief you are claiming is reflected in 1 and 2. I have explained in my judgment the consequences of the relief.
81. MR BÉAR: My Lord, that must be right.
82. MR JUSTICE JACKSON: Yes.
83. MR BÉAR: I was going to say: as amended by the determination of Secretary of State, but perhaps one need not get into that sort of fiddly drafting.
84. MR JUSTICE JACKSON: I would have thought that paragraphs 1 and 2 would suffice.
85. MR BÉAR: Yes.
86. MR JUSTICE JACKSON: Then we have the Secretary of State's redraft of the criteria.
87. MR BÉAR: Quite so.
88. MR JUSTICE JACKSON: Thank you very much, Mr Béar.
89. MR BÉAR: My Lord, can I deal with any other matters after Mr Swift has said whether he is happy with the draft.
90. MR SWIFT: My Lord, may I have a moment please?
91. MR JUSTICE JACKSON: Yes.
92. MR SWIFT: (Instructions taken.)
(An expedited transcript was requested and then ordered.)
93. MR SWIFT: My Lord, the only point I need to ask at this stage is in relation to permission to appeal.
94. MR JUSTICE JACKSON: Yes. Before we come to that, are you content with the form of order as formulated by Mr Béar?
95. MR SWIFT: My Lord, just to make sure I am up to speed: the first paragraph will concern the quashing of the present determination; the second paragraph would simply be to the effect that the objection of the Governors of the Peterborough School not be remitted to the Adjudicator. My Lord, so on that basis I am content with the order as Mr Béar suggested.
96. MR JUSTICE JACKSON: Thank you.
97. MR SWIFT: My Lord, my application is in relation to permission to appeal. My Lord, the point of importance - which does in fact go well beyond the remit of this case - is the conclusion that my Lord has reached in relation to the question of remedy, in particular the conclusion as to the effect or not of section 90(3) of the 1998 Act in circumstances where an adjudicator's decision is quashed. Clearly my Lord's conclusion is at odds with the conclusion of Goldring J, in particular paragraph 17. My Lord, in any event clearly there are important matters here, because one has a situation now, potentially, where, despite the absence of any timetable in the statute, or for that matter in the guidance, where an adjudicator can effectively be required by a court to abandon the substantive merits of an adjudication at a point which is relatively early in the school year - prior to admissions - my Lord, that is a matter of significant importance having regard to the statutory scheme. Particularly given the contents of Goldring J's judgment in the Watford No 2 case, I would say it is self-evident that this is a point on which permission should be granted.
98. MR BÉAR: My Lord, I would disagree very strongly with that. Your Lordship's judgment was, if I may respectfully say so, perfectly clear in ruling that it would now be substantively irrational for any adjudicator to delete interviews from the process were the matter to be remitted, and it was not contested as a matter of principle that in that event it would be wrong to remit the matter for a pointless step to be taken by an adjudicator.
99. So first of all, whilst of course Mr Swift disputed whether it would so be irrational, that is now concluded by your Lordship's judgment. The matter raises nothing, therefore, beyond the confines of the immediate case. There is no basis on which Mr Swift has sought to suggest, nor could he have done so, that your Lordship's conclusion in that regard is appealable; it is plainly a matter for your assessment as the trial judge. In those circumstances there is nothing which the Court of Appeal would be able to look at of any wider importance.
100. It is also, if I may say so, a case in which I would urge upon your Lordship particular caution in considering any application for permission to appeal because any such application could only have the effect of undermining the integrity of the admissions process which is now going to have to take place over the next month.
101. MR JUSTICE JACKSON: Thank you very much.
102. MR SWIFT: My Lord, briefly in reply: with regard to the latter point, there is simply nothing to it. I am not asking for a stay of this decision. With regard to the first point, in fact my Lord decided that it was not necessary to conclude on Mr Béar's time point, as it were - the delay of publication of the decision - no conclusion was reached on that. The matter of rationality that my Lord considered in relation to remedies is materially different and concerns the situation obviously in relation to remedy, not in relation to the substantive ground. So for Mr Béar to suggest that the concession I made in relation to the substantive time point also applies to the situation that we are now in is simply incorrect.
JUDGMENT ON APPLICATION FOR PERMISSION TO APPEAL
103. MR JUSTICE JACKSON: This is an application for permission to appeal. Mr Swift on behalf of the Adjudicator, the Defendant, submits that there is an important point of law here concerning the remedy which this court has granted. He submits that the appeal has a good prospect of success because the court on this occasion has differed from Goldring J in an earlier case.
104. I consider that the facts of this case are very different from the facts of the case before Goldring J, and it seems to me that there is no different approach in law between myself and Goldring J. The decision which I have reached concerning remedy turns upon, and arises from, the facts of the present case.
105. When considering an application for leave to appeal, the Civil Procedure Rules require that I should consider two questions: (1) whether the appeal has a real prospect of success, and (2) whether there is any other compelling reason for giving permission to appeal.
106. It is always difficult for a judge who has just given judgment immediately to reflect upon the precise probability that a higher court will declare him to be wrong. Every judge from time to time falls into error and must take it with good grace when he is overruled, in the same way I hope the Adjudicator in this case will not be unduly perturbed by the decision of this court. Nevertheless it is necessary for me to consider the prospect that the Court of Appeal will disagree. I am afraid that I have taken a firm view on what the right answer is to this case, and on the view which I take this proposed appeal does not have any real prospect of success.
107. If I am wrong in that assessment - and judges sometimes are wrong in that assessment - then the Adjudicator has the remedy of applying to the Court of Appeal for permission to appeal. If the Court of Appeal think that the appeal does have a real prospect of success, then they can grant such permission.
108. There is, furthermore, in my judgment, no other compelling reason why in this case permission should be granted to appeal. It therefore seems to me that neither of the criteria set out in the Civil Procedure Rules are satisfied.
109. The final matter relevant to the question of appeal is this. If the Adjudicator obtains permission to appeal, either from this court or from a higher court, the existence and progress of that appeal will cause further disruption to the admissions process of the Oratory School. In my judgment those persons who run the Oratory School have already been given quite sufficient disruption to cope with and it would not be right to increase that disruption by granting permission to appeal.
110. For all of those reasons, permission to appeal is refused.
111. MR BÉAR: My Lord, that leaves the issue of costs. The School has funded these proceedings; and so the first matter -- there will be another point that I will need to deal with -- is to ask for an order for our costs to be paid by the Defendant. I do not know if your Lordship wants to deal with them in sequence ...?
112. MR JUSTICE JACKSON: You do not oppose costs, do you?
113. MR SWIFT: My Lord, in relation to costs, the only point that I would make is that in relation to two of the seven grounds the Defendant was actually successful. Clearly the court has now a much more specific discretion in relation to costs than previously. My Lord, clearly that is a matter of evaluation for yourself. I would simply make the point that the two grounds on which the Defendant did succeed were substantial and material grounds, both of which were pressed by Mr Béar, quite properly, at some length. In those circumstances it would be appropriate in relation to the question of costs to make an award only in relation to a percentage of the Claimants' costs. My Lord, I assume Mr Béar is seeking an order only in relation to the 1st Claimant, given that he says that it was the 1st Claimant who has funded the litigation, presumably also meeting the costs of Claimants 2 to 4.
114. MR BÉAR: The assumption is right, although it should be 'the Claimants' costs'.
115. MR JUSTICE JACKSON: The 1st Claimants are a group of people, are they not?
116. MR BÉAR: I believe they are incorporated, in fact, as a governing body. My Lord, I invite your Lordship not to accept the invitation to go for some apportionment. The amount of time that was spent on the Human Rights issue was frankly no more than 20 or 30 minutes in total of the court hearing -- perhaps 40 minutes -- but it is not enough to warrant trying to come to some lesser amount of costs; and as for the other issue on which we did not succeed, it was of course part and parcel of a group of issues on the majority of which it did succeed and it would not be right there to filter out some element of costs.
117. MR JUSTICE JACKSON: So is the proper order that you say the Claimant recovers its costs of the proceedings and no order for costs -- sorry the 1st Claimant recovers its costs and no order for costs in respect of 2nd, 3rd and 4th Claimants?
118. MR BÉAR: Yes, that would be an acceptable ...
119. MR JUSTICE JACKSON: Yes, thank you very much. Do you wish to add any more?
120. MR SWIFT: Simply to make the point that the 2nd, 3rd and 4th Claimants were only claimants in relation to the Human Rights point.
121. MR JUSTICE JACKSON: Thank you very much.
122. MR BÉAR: Before your Lordship goes further, can I just indicate, I am going to ask for an interim payment on account of costs; I do not know if your Lordship wants to write anything down before I do that.
123. MR JUSTICE JACKSON: I want to deal with the question of costs before I award interim payments.
124. MR BÉAR: Certainly.
125. MR JUSTICE JACKSON: It seems to me the point you have just made reminds me of another matter which I had overlooked; that is, that the claim of the 2nd, 3rd and 4th Claimants ought to be dismissed, ought it not?
126. MR BÉAR: Yes.
127. MR JUSTICE JACKSON: So paragraph 3 of the order will read: claim of C2, C3 and C4 dismissed.
128. MR BÉAR: I also forgot; and plainly there should be a paragraph granting permission in respect of all the claims. So 1 should be grant of permission. My 1 and 2 become ...
129. MR JUSTICE JACKSON: 'Permission' is paragraph 1.
130. MR BÉAR: Yes.
131. MR JUSTICE JACKSON: Then paragraph 2 is: 'the determination of the Adjudicator being quashed'.
132. MR BÉAR: Yes.
133. MR JUSTICE JACKSON: Paragraph 3 is: 'the objection shall not be remitted'. Paragraph 4 is: 'the claim of 2nd, 3rd and 4th Claimants to be dismissed'.
134. MR BÉAR: I am obliged.
135. MR JUSTICE JACKSON: I agree with that; and I suspect Mr Swift does?
136. MR SWIFT: I am sorry, my Lord, my instructing solicitor was just ... (Brief discussions with Mr Béar.) My Lord, yes. And I think the present 1 and 2 become 2 and 3; and 4 was --
137. MR BÉAR: Dismissed.
138. MR SWIFT: -- dismissed in relation to the 2nd 3rd and 4th Claimants.
JUDGMENT ON APPLICATION FOR COSTS
139. MR JUSTICE JACKSON: I think I have heard sufficient argument on the question of costs. It seems to me that the Claimants are the overall victors in this litigation. The great majority of the points argued on behalf of the Claimants have succeeded. The ultimate objective of the Claimants was to arrive at a situation in which they are now permitted to start interviewing candidates for places and the overall result of the litigation is that the Claimants are now in that situation.
140. Very little time has been spent on the matters where the Claimants were not successful. The 2nd, 3rd and 4th Claimants were joined in the proceedings purely to enable the Human Rights point to be argued. The Human Rights point took up very little time, and the 2nd, 3rd and 4th Claimants have not, so far as I can see, been much of an intrusion into the proceedings, which is really a battle between the 1st Claimant and the Schools Adjudicator.
141. For all of these reasons, in the exercise of my discretion, I have come to the conclusion that the proper order for costs is as follows - and this will be paragraph 5 of the order:

5. Defendant to pay 1st Claimant's costs of these proceedings. No order in respect of the costs incurred by the 2nd, 3rd and 4th Claimants.

6. Permission to appeal refused.

142. Now you have another application, Mr Béar?
143. MR BÉAR: Yes, an order for an interim payment on account of costs. The basis for that is that the money to get that money on account from the Defendant would mean that the School would not need to take money out of its reserves, which it would otherwise do; and as your Lordship of course knows, it is a charitable institution, with, therefore, limited funds and limited fund-raising powers. I do not know if my Lord has seen a schedule of costs. Can I hand it up simply illustratively, because of course it was prepared on the assumption, which has not proved correct, there would be a day's hearing - so there is going to have an assessment of costs, I accept that. Equally, as my Lord knows, it is common under the CPR of course to permit an interim account or an interim order on account of costs. So the total that we have got to that your Lordship sees there before VAT was £55,000. Obviously it is going to be something more, given the existence of the proceedings today.
144. MR JUSTICE JACKSON: This figure is over four times the amount of the Defendant's figure.
145. MR BÉAR: Yes; and there are a number of reasons for that. The first reason is obviously that the rates at which both solicitors and counsel - in-house being Treasury Solicitor and counsel - charge in respect of Treasury Solicitor work are well below those that are current in the private sector, and that is a consequence of the fact that the Treasury Solicitor is in-house and the Government is able to get a very good rate for members of the Bar who work for it. It is less than half or indeed less than a third of the commercial rate. That is the reality of life.
146. The other reason for the great discrepancy of course is that we did have a large amount of evidence to put in and nearly all the papers in the bundle are papers that were prepared for us and by us. The Adjudicator, quite properly, limited herself to a pretty brief statement, so the burden was on us to bring these proceedings. Your Lordship observed that they had been done at speed, and I am afraid that comes with a cost.
147. My Lord, having said that, I am not asking your Lordship to ask to make summary assessment of the overall costs, but I would ask your Lordship to make an order in a significant amount bearing in mind the total of costs.
148. MR JUSTICE JACKSON: What proportion of your figure are you seeking?
149. MR BÉAR: My Lord, I would suggest something in the region of £35,000 would be an adequate interim order.
150. MR JUSTICE JACKSON: Just over half?
151. MR BÉAR: Just over half. So, in other words, it is not going to put the Treasury out of pocket, and hopefully the parties will come to an agreement thereafter without having to go for summary assessment.
152. MR JUSTICE JACKSON: Mr Swift?
153. MR SWIFT: My Lord, there is simply no basis for making an interim order. Firstly, there is no evidence before the court as to Mr Béar's suggestion that the School is in some way impecunious. My Lord, there is simply no evidence, and on that basis no evidential basis for any order.
154. MR JUSTICE JACKSON: It is the normal order to make, is it not?
155. MR SWIFT: In my experience certainly in this court, the Administrative Court, it is not. I bow to the greater and more extensive experience of others, but in my own experience it is not a normal order.
156. MR JUSTICE JACKSON: In litigation outside the Administrative Court it is certainly a normal order, is it not - in the general Queen's Bench division, for example?
157. MR SWIFT: My Lord, that is something on which I would bow to your experience rather than seeking to rely on my own. But certainly in the Administrative Court not only is not a normal order to make, I have to say to my experience I have never come across a situation where such an order has even been sought. But that, of course, is no reason of itself for not making the order if there are proper grounds.
158. But the first point is that there are no proper grounds; there is no evidence; there is not a suggestion that in any way this school is in any special position.
159. My Lord, the second point is in relation to the amount. My Lord has already noted the extravagance of the bill that is put forward on behalf of the Claimant. Counsels' fees alone are greater than the entirety of the Defendant's costs. Now Mr Béar says this is explained by two things: firstly, Government lawyers work on much reduced rates, and secondly, he says, necessarily the Claimant bears the brunt of the preparation costs for any hearing. My Lord, in relation to the first point, that is of course true, but that cannot go anywhere close to explain the extraordinary disparity between the two outline bills that have been made.
160. My Lord, with regard to the second point, that is of course correct, but we are dealing here with proceedings on an application for judicial review in the Administrative Court. In those circumstances one does not have the possibility of levels of costs ordinarily incurred, for example, in other divisions of the court. In relation to this particular case, we have two bundles of documents, three or, maybe, four relatively short witness statements prepared by the Claimant. Most of the documents, as always, have not been looked at - there have been a handful of core documents that have taken up most of the time.
161. MR JUSTICE JACKSON: I have done a fair amount of reading around the bundles.
162. MR SWIFT: Everyone has had to read them. The question is: was it necessary for any of us to be required to do that. I am obviously not doubting my Lord's diligence, and I hope my Lord would not doubt my own either, but it just was not necessary.
163. My Lord, in any event, on the basis of this skeletal schedule, it simply cannot be said that even half of it will survive a detailed assessment. There is simply not enough information here. We have here in relation to five fee-earners at (inaudible) each - two partners, an assistant, a trainee and an outdoor clerk; in relation to their work, which is necessarily only summarily described in the schedule, one cannot know how much of it was actually justified or necessary as to pass an assessment. In those circumstances, even if you felt as a matter of principle there was a reason for granting some form of interim order my Lord cannot be certain that certainly the amounts sought by Mr Béar would in any event be appropriate.
164. The starting point, I think, should be a practical one at this stage in the afternoon. One has a bill for £64,000 and one has a bill for £13,000. Now Government lawyers may work on rates that are economic in the public interest, but they are not that economic.
JUDGMENT ON APPLICATION FOR INTERIM PAYMENT ON COSTS
165. MR JUSTICE JACKSON: This is an application by the 1st Claimants for a payment on account of costs. It is true that orders of this nature are more commonly made in general litigation in the Queen's Bench Division than in the Administrative Court. Nevertheless the 1st Claimant is a charitable body; the 1st Claimant has won the action and is bound to recover a substantial sum by way of costs. It seems to me right in principle that I should make an order for an interim payment on account of costs.
166. The next question is: how much? It is the case that the bill of costs prepared by the 1st Claimants exceeds the costs incurred by the Defendant by over 400%. Mr Béar makes the point that those lawyers who work in the private sector come more expensive than those who work in the public sector. Mr Béar also makes the point that the Claimants have had the burden of preparing the documentation for the hearing.
167. Both of the points which Mr Béar makes are valid points. It is a matter of common knowledge that that fees in the private sector are higher than in the public sector. It is almost always the case that the burden has fallen to the claimants to prepare the bundles for this case. I know from past experience that the selection of documents and the preparation of bundles is always more time consuming and arduous than perhaps it appears after the event because those who prepare the documents have to look at a great many things which do not ultimately go into the bundle.
168. Mr Swift somewhat underestimates the number of witness statements which the Claimants prepared. By my reckoning there were eight witness statements prepared on behalf of the Claimants. I have read all eight. To a greater or lesser extent I think that they have all been relevant to the case. I have referred compendiously to some of the things which the parents and the teachers say; I have done so in the course of my judgment, but I have only been able to do that because of a reading of the statements in greater detail. It was not then necessary to recite them in the course of the judgment as if this were a summing-up to the jury.
169. So I do accept that Mr Béar has put forward explanations as to why the Claimants' bill of costs is going to end up at a substantially larger sum than the Defendant's bill of costs.
170. It is common ground that the costs of the 1st Claimants will ultimately have to be assessed if they are not agreed. It is not my function to predict what assessment of costs will ultimately be made by the costs judge who deals with this matter. However, taking into account all of the material before me, I do not think that there is any realistic prospect that the Claimants will recover less than £25,000.
171. I therefore order the Defendant to pay £25,000 on account of costs to the 1st Claimant's solicitors within 14 days; or is it a bit unseasonal?
172. MR SWIFT: Probably unseasonal, my Lord.
173. MR BÉAR: It probably does not matter very much because the 31st December is probably not a day when ...
174. MR JUSTICE JACKSON: 21 days?
175. MR SWIFT: 21 days takes us to the end of first week of January. If I may just have a moment? (Instructions taken.) My Lord, I am asked to suggest 28 days. The Christmas season applies not just to the Claimant but also to the Defendant. I am told some people within Government wish to take holidays over Christmas.
176. MR JUSTICE JACKSON: Yes, I quite agree: 28 days. I am confident that ultimately no prejudice will be suffered by the taxpayer through the making of this interim order.
177. MR BÉAR: My Lord, that concludes matters. Can I just say on behalf of the parties that your Lordship mentioned the solicitors, the parties and counsel, and can I say that we are very grateful to your Lordship for helping the matter to be resolved so expeditiously.
178. MR JUSTICE JACKSON: Thank you very much.