England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		24 May 2010

1. MR JUSTICE OUSELEY: There are two matters before the court. The first concerns the appropriate step to be taken in this action, which Professor Qureshi has permission to bring. It challenges what the grounds describe by way of decision as the report of the Panel of Inquiry into the appointment of a Chair in Commercial Law, and the report of an employee of the defendant university reviewing its deliberations, circulated on or about 22 October 2008.
2. The defendant university has for some time been prepared to have those two reports quashed. Although they sit slightly oddly with the notion of a decision, an appropriate order quashing them as a basis for any further deliberations by the university can be drawn up. The university has also agreed to pay Professor Qureshi's costs of bringing these proceedings to quash those reports. There is no dispute but that such an order should be made today.
3. The second matter, however, is this: Professor Qureshi, who has now the advantage of being represented pro bono by Mr Dennis Edwards, to whom the court expresses its gratitude for his submissions, wishes to amend his grounds of challenge effectively to challenge the next stage in the proceedings concerning the appointment of the Chair of Commercial Law, which was the report in May 2009 of Mr John Cavanagh QC.
4. Although not long after his report was made available to Professor Qureshi he was making significant complaints about it and writing to the Administrative Court, it is only on 19 May 2010 that the grounds have been formulated.
5. Mr Lewis QC for the university opposes the amendment on the grounds that, in reality, they are seeking a long way out of time to challenge a "decision" in May 2009 in relation to the report of Mr Cavanagh, and in any event the grounds are too vague and without merit.
6. In 2008 the University of Manchester sought to appoint a Professor of Commercial Law. The post was advertised and the university's procedures were undertaken. There was a short-listing meeting at which, amongst others, Professor Qureshi, a Professor of International Economic Law, and Professor Birds, who was the Head of the School of Law at Manchester University, participated. Two candidates were short-listed. They went for interviews before a panel, which included Professor Qureshi, Professor Birds and an external assessor, Professor Dine from Queen Mary College, and, amongst others, Professor Kostakopolou.
7. Following their recommendation, Professor Howells was appointed. Although there have been some concerns about the nature of the claim, Professor Qureshi has made clear that he does not seek to say that the appointment of Professor Howells was unlawful, and does not seek to say that he wants any relief which would lead to Professor Howells being dismissed from his post.
8. Professor Qureshi's concerns have all been about the manner in which the appointment came to be made, and in particular focus on whether Professor Birds should have been part of the short-listing committee and interviewing panel, and in particular, whether he ought to have declared an interest in the form of his friendship with Professor Howells earlier than he did or more fully than he did.
9. Professor Qureshi made complaint about the manner in which this appointment process had taken place, using what is called the "whistleblower" process. This process was invoked because he was making allegations about what he saw as improper behaviour by Professor Birds.
10. In order to deal with that complaint, a Panel of Inquiry was set up, which investigated the complaint and then reported to the university. The process was that another individual would examine the report and decide whether or not to accept it.
11. The report of the Panel of Inquiry was made available around November 2008, and Professor Qureshi launched these judicial review proceedings in January 2009 challenging, as I have said, the report of the panel and of the person appointed by the university to review its deliberations.
12. The university considered the many complaints which he had made, and by the end of February had decided that it would respond to those complaints by not relying on the report of the Panel Inquiry as an adequate response to those complaints. Although it did not at that time, as I understand it, specifically concede the proceedings (all that happened later), it made its stance in relation to non-reliance on that report clear.
13. On 3 March 2009 HHJ Birtles, sitting as a Deputy High Court Judge, stayed Professor Qureshi's claim until 1 June or until the university had re-run the Panel of Inquiry. Although at some stages Professor Qureshi has sought to say that what then happened was neither a Panel of Inquiry nor in conformity with what HHJ Birtles said, those points are not pursued.
14. Mr John Cavanagh QC was instructed through the university's solicitors and appointed by the President and the Registrar to carry out an inquiry into the complaints made by Professor Qureshi about the appointment process. Mr Cavanagh got down to work reasonably quickly. University Ordinance XVIII provides for the obligations or expectations of members of the university as to their probity and propriety:

"They should declare to the appropriate authority, in accordance with issued guidance, any personal interest that may compromise or might reasonably be deemed to compromise impartiality, conflict with duty as an employee, or result in private benefit. In particular, Members of the University serving on University committees or other similar bodies must declare any personal interest in the business to be discussed and, if necessary and as required, withdraw from the consideration of such business."

15. The university has rules in relation to recruitment procedures. The relevant paragraph in the section headed "Shortlisting" is:

"Any member of staff involved in the selection process who has a personal or familial relationship with an applicant must bring this to the attention of the local Human Resources team."

16. For the purposes of his inquiry, Mr Cavanagh interviewed those who had been involved in the selection process. He was unable to interview Professor Dine because of serious ill-health. Professor Kostakopolou declined to be interviewed, saying that she had already said all there was to say about the matter during the previous Panel Inquiry. In addition, there were her e-mail communications with various members of the university, and a lengthy statement which she had made so there was nothing further that she could clarify or add.
17. Perhaps more surprisingly Professor Qureshi himself declined Mr Cavanagh's invitation to give his evidence about what had happened during the process, and in particular, in view of the factual disputes, as to what had been declared by Professor Birds at the short-listing meeting and subsequently before and after the interview process. He replied to Professor Cavanagh's invitation, saying that the university had not offered an adequate explanation for the re-run; had failed to admit the previously defective process and to annul its decision; it was being run under the shadow of High Court proceedings, and with the full involvement of the very university solicitors charged with defending this action. He was therefore, he said, unable to respond in any way. He pointed out that the High Court was aware that he had co-operated with a number of bodies in relation to the Panel of Inquiry, and added:

"In the circumstances the university has all the information it has with respect to any re-run it seriously wishes to engage in. The acid test for the university is not what my response/co-operation with respect to a re-run is and its evaluation, but rather it is what the university in its "conscience" believes to be the right course of action in the circumstances given the full array of information, evidence and powers already at its disposal with respect to the issues raised."

He affirmed that position on further enquiry.

18. Mr Cavanagh, having interviewed a number of persons, set out in his report the terms of reference and the substance of the complaint made by the claimant. He had not read the previous report and taken no account of its views, but he had seen it. He set out the evidence, and the notes of the evidence of the meetings he had with witnesses were provided, and then he turned to deal in detail with each of the points of complaint.
19. I deal with the merits first before I turn to deal with the time point. I should just say that I am entirely satisfied that when permission was granted in relation to this action by Mr Stuart Issacs QC, sitting as a Deputy High Court Judge, on 16 September 2009, he was not granting permission with respect to any challenge to the John Cavanagh report. Whatever correspondence may have been before him, and I rather doubt that the full picture was, he would not have granted permission to apply for judicial review of a decision in respect of which there had been no formal application to amend the grounds, where it was clearly a different decision which was under challenge, and where wholly different considerations might apply to its merits. If he had done so in that decision, he was doing so without having an acknowledgment of service in relation to the amended grounds from the defendant. In the circumstances, if he had granted permission in relation to those new grounds, I would now, in the exceptional circumstances, set it aside.
20. I turn to consider whether the points raised in relation to the Cavanagh Report are arguable. The first point concerns the independence of Mr Cavanagh. There are essentially three problems raised in relation to his independence. I ignore the points made about his CV, which suggests that he has acted for universities, and focus on the points Mr Edwards more wisely focused on.
21. It was said that he was not independent because he had been appointed by Eversheds, who act for the university in the judicial review. He was in fact appointed by the President and the Registrar, although Eversheds plainly were involved in advising that Mr Cavanagh be selected, negotiating the terms and fees for his appointment and acting as the link between him and the university over a number of matters.
22. It is not arguable, in my view, that Mr Cavanagh's independence as an inquirer into the events underlying the complaint was compromised by his appointment via the solicitors in that way.
23. Next, there is nothing in the report to suggest that there was any endeavour, as Mr Edwards suggested, to reach a conclusion which might assist in the defence of the judicial review. That would have been irrelevant given the stance which the university had already adopted in relation to the Panel Report by appointing him to carry out an inquiry, and indeed although he was obviously aware that there was a judicial review as yet unresolved, he would only have been, if it affected him any way at all, more careful in the approach which he adopted.
24. Mr Edwards' instances of the possible defensiveness or a finding against Professor Qureshi are not worthy of further comment.
25. Mr Edwards then said that the problems of appointment by Eversheds would have remained even if it had taken place after a formal quashing of the Panel of Inquiry Report, but that simply means that the chosen method of proceeding by investigating his complaints, and indeed the obligation to investigate his complains, could never have satisfied Professor Qureshi. It was said that that could have been resolved by obtaining Professor Qureshi's consent to a particular Queen's Counsel. There is nothing in that suggestion that could show that Mr Cavanagh was not and was not obviously independent. That key challenge I reject entirely.
26. It is then suggested that Professor Qureshi's concern about what needed to be disclosed had been dealt with on an unduly narrow basis. Mr Cavanagh treated those with whom a member of staff involved in the selection process had a personal or familial relationship in what Mr Edwards says was a narrow way. Mr Cavanagh read that to mean that disclosure was required if the candidate "is a member of the individual's family or is in a personal relationship, ie is the candidate's partner". Mr Edwards says that neither reflects the Ordinance XVIII, nor is it an appropriate reading of the recruitment policy.
27. In my judgment, the construction which Mr Edwards puts on the Ordinance is far too broad. A personal friendship is not, unless it was a very unusual one, the sort of relationship which might reasonably be deemed to constitute partiality, and the recruitment policy is clearly not intended to exclude participation because of an ordinary personal friendship. However, Mr Cavanagh continued to make the point that in fact academics usually did inform others involved in the recruitment process if they had a prior relationship with a candidate in the sense of a friendship or being colleagues. Professor Grant said that he invariably asked panel members to state if they know a candidate. Professor Grant chaired the interview meeting.
28. I do not think that, even if Mr Cavanagh has taken an unduly narrow view of the recruitment policy or of the Ordinance, that it can be read so widely as to include friendship deriving from their relationship as colleagues of the sort that Professor Birds was to declare. It was not a very close social relationship.
29. Professor Qureshi then takes issue with findings of fact made by Mr Cavanagh. As Mr Edwards recognises, he has to show that there is some public law error in the way in which Mr Cavanagh has reached his conclusions. It is simply no good Professor Qureshi saying that he disagrees with the findings of fact. Of course, Professor Qureshi's starting point for the disagreement is that he gave no additional evidence to Mr Cavanagh in relation to these issues, which are clearly both contentious and central to his complaint and Mr Cavanagh's report. I have to say I find it quite astonishing that the stance should have been taken by Professor Qureshi in relation to not providing Mr Cavanagh with the benefit of his evidence, and then taking issue with the findings of fact by reference to the evidence that he says he could have given.
30. The first point at which Mr Cavanagh made findings of fact concerned what happened at the short-listing meeting. He set out the evidence. No complaint can be made about his recording of the evidence. He commented on what both Professor Kostakopolou and Professor Qureshi had said. He regarded it as ambiguous. He accepted the positive evidence given by Professor Birds. He was plainly entitled to come to that conclusion.
31. So far as the interview is concerned, Mr Cavanagh would have had the advantage of knowing that the contemporaneous note made it perfectly clear that Professor Birds had declared his knowledge, at least to a large extent, at the pre-interview meeting. The notes record him declaring that he had worked alongside the ultimate appointee at Sheffield University and had known him for many years. Insofar as Professor Qureshi would have wished to take issue with that, Mr Cavanagh was fully entitled to accept that evidence. Professor Qureshi's point was rather that afterwards, during the post-interview discussion, Professor Birds revealed rather more of the friendship. But that still was not what Mr Cavanagh accepted. Mr Cavanagh accepted that all that needed to be disclosed had been disclosed before the interview.
32. Professor Qureshi makes the point in one of his letters that these declarations should be made at a meeting before the substantive meetings are underway so that people are not in some way compelled to put up with something they would rather not in the interests of administrative efficiency. But that is not to the point. It may be a sensible administrative point, but it is not to the point in relation to Mr Cavanagh's decision.
33. Mr Cavanagh was entitled then to consider whether Professor Birds should have withdrawn, albeit that no one asked him to. Professor Grant did not ask him to withdraw, and Mr Cavanagh discusses between paragraph 68 and 81 the role of somebody who may know a candidate for an appointment, making the point that that is almost inevitable sometimes, unless internal candidates are to be excluded and those who know little of the subject matter are to be the interviewers. In a fairly small field such as a professorship in commercial law, inevitably people will know each other.
34. It is my judgment that there is nothing in the irrationality point.
35. There are no minutes, which was a complaint, but is not one which gives rise to any error of law.
36. I have also considered the points made in the letter of 10 May 2009 about Mr Cavanagh's report. Insofar as I have not covered them, they give rise to no arguable point.
37. I would, if I had thought that there was some significant merit in the points of argument, have been reluctant to dismiss this application for permission to amend the grounds of challenge on grounds that it is out of time. But I would nonetheless have done so because the reality is that this is an endeavour to challenge a decision of about June 2009 of the order of nine months afterwards and six months out of time. I appreciate that Professor Qureshi was for much of this period to all intents and purposes a litigant in person, albeit that he has a legal background. Although he contends that his point is all about the process of appointment and his challenge to the decision of Mr Cavanagh is just another way of elaborating his point, this court does have to focus on discrete issues, rather than simply take challenges once started as permitting an ongoing challenge to any subsequent decision, however remedial it may be and at whatever distance in time.
38. Accordingly, this application for permission to amend the grounds is dismissed, and subject to Mr Lewis' clients drawing up the appropriate order, which I think I have seen a draft of already, which I cannot believe is contentious --
39. MR LEWIS: Just in case you came to that conclusion I prepared one earlier. What I have done in (1) is quash the findings of the report, rather than the report; then to pay the costs of the claimant in having those findings quashed; then the application for permission to amend the grounds of the claim be refused --
40. MR JUSTICE OUSELEY: I appreciate item (4) is obviously going to be contentious. Just take items (1), (2) and (3), Mr Edwards.
41. MR EDWARDS: I will. While I just take instructions on that, there was one very minor error in your Lordship's judgment, and that was that the Professor Grant did not chair the short-listing meeting; he chaired the final interview meeting.
42. MR JUSTICE OUSELEY: Thank you.
43. MR EDWARDS: Well, I accept order 1. I accept order 2. That was in the defendant's offer, but I do want make clear that the offer to pay the claimant's costs only came on 11 November or December.
44. MR LEWIS: It was 11 December last year, but it was never accepted and we are here today.
45. MR JUSTICE OUSELEY: The costs will be assessed if not agreed.
46. MR LEWIS: He was a litigant in person so it makes no difference.
47. MR JUSTICE OUSELEY: I hope that is not going to take a great deal of time and it is not going to take any time before me.
48. MR EDWARDS: I do resist order (4).
49. MR JUSTICE OUSELEY: Of course, you do. I think you ought to hear Mr Lewis make the application first.
50. MR LEWIS: Firstly in relation to the application to amend, that was an application that was made and it was dismissed.
51. MR JUSTICE OUSELEY: There is no dispute about item (3). We are only talking about costs.
52. MR LEWIS: Exactly, but in relation to (4) it is two things: it is the costs of the claimant's application to amend, which is largely today, and the application was made and it was lost, and the normal rule is that costs follow the event. In relation to that application to amend, that is it. So far as the costs of the application for directions is concerned, we should get that; it is really the same thing, because what we have said throughout in our detailed grounds and skeleton is that there was only one permission decision granted, ie in relation to the Panel Inquiry, and all these points about the Cavanagh Report were unarguable and that is what your Lordship has found.
53. MR JUSTICE OUSELEY: Do you have a schedule of costs?
54. MR LEWIS: No, because we were not sure what was going to happen, and on one analysis that could seem heavy-handed and wrong, and on another analysis there are so many variables: were you going to agree to the application to amend and so on? So we did not have a schedule of costs.
55. MR JUSTICE OUSELEY: Mr Edwards?
56. MR EDWARDS: It was not so open and shut then for my learned friend to come (inaudible) for costs. On the more substantial point, as Mr Lewis has acknowledged, we would be here in any event on the directions. It was the defendant's application for directions in light of the grant of permission by Mr Issacs QC. Now, that it took two hours and not 30 minutes is beside the point, because we would have had to come anyway, we say, and we also say that the application to amend the grounds for judicial review is inevitable in light of the change of territory which has come about by Mr Cavanagh's report. As to the circumstances, I would stress that Professor Qureshi has throughout acted without any personal interest in this matter. His only concern has been, as he has seen it, to have the university acknowledge that it had --
57. MR JUSTICE OUSELEY: He may have acted out what of he perceives as public interest motives, but why should the university have to pay the costs? Is your best point not this: that in reality this hearing has been a permission hearing in relation to new grounds and therefore Mount Cook principles should apply?
58. MR EDWARDS: That is true. As it has turned out, that is how it has turned out, and that the defendant should only get its costs of preparing the acknowledgment of service.
59. MR LEWIS: Firstly, it is not a permission application; it is an application to amend.
60. MR JUSTICE OUSELEY: That is a very narrow point. In substance what we have been talking about is, did Mr Issacs grant a very broad permission, and if he did not grant a very broad permission, should permission be granted in relation to these new grounds? What is the difference?
61. MR LEWIS: The reality is this, my Lord: if you look at the correspondence, you have seen some of it, and you have not seen the without prejudice correspondence obviously, we have sought for many months by many means to try and stop further costs for a university which is already in a financially constrained position not to have to come to court. We made that offer on 11 December, which you will see at page 132. Does your Lordship have that it? It was an open offer, quite deliberately, and if you look at paragraph 1 it says that we are going to agree to quash that, and we will pay your costs, and then we say we see no purpose in the second investigation. There was then to be a hearing on 9 February, I think, and that was adjourned due to the non-availability of Professor Qureshi's counsel, and you will see from page 136 --
62. MR EDWARDS: Then counsel.
63. MR LEWIS: Then counsel, pardon me, it was a different counsel. The first of three, if not four, counsel, but it certainly was not Mr Edwards, and at 136, the 28 April offer, that had happened well before this:

"We refer to the adjourned Directions hearing in the above matter which is due to take place ... in light of the contents of our open letter ... we reserve our position in relation to costs ...

In the meantime, you may be aware that our client is in the process of conducting a longstanding review ..."

64. At 135 we say again on 7 April that what we have offered disposes of the matter, and that is the truth of the matter. We made sensible offers for many months, saying, look, there is no need for this. Notwithstanding that, we have had to come for a directions hearing to try and get the matter resolved, and then on Wednesday the 19th we were faced with an application to amend, and indeed on the 20th we are faced with an application for a protective costs order, which now becomes relevant. So the reality of it is not that this is a Mount Cook application; the reality of this is that this university has spent many, many months trying to make the claimant see sense. He declined to see sense. He insisted on pursuing the matter today in very full terms, and we say, in those circumstances, he brought the application, he necessitated us being here, and he should therefore pay the costs. It is as simple as that, in our submission.
65. MR EDWARDS: Can I say, in addition, misconceived as your Lordship has concluded that the claim was, it is interesting that the solicitors for the university on 28 April wrote to the claimant. It is the last letter in the bundle, one of the most recent, just informing him that there had been an ongoing review of the university's recruitment and selection processes, and indeed its whistleblowing policy. So they had seen fit to inform him of that.
66. MR LEWIS: So if he was worried -- if he was going to come to this court and say, "What I am really concerned about is the whistleblowing procedures", we will be saying, "Look, these things are reviewed and this is under review anyway". He did not do that. He came to court, and this morning after the adjournment said, "Oh, we have a new argument now: that permission has already been granted in relation to the underlying decision", and the truth of the matter is, no matter what we say to this claimant, it would be dealt with in a way that is not normally the way, so he understands the words, and it is thrown back at us, and that is why at the end of the day we have to lance the legal boil and we had to be here. We say, when you have a stance by a claimant, and when an exasperated public body has no choice but to go to a hearing for an application to amend, they should get their costs. It is his conduct that necessitated it.
67. MR JUSTICE OUSELEY: Thank you.
68. Following my decision, the defendant university, which has succeeded, seeks its costs of today, both of its application for directions and its successful objection to the claimant's application for leave to amend its grounds. The substance of the hearing, although those are the matters of form under which the issues have arisen, has taken the nature of an application for permission in relation to amended grounds. It therefore has closer kinship with the normal position so far as costs are concerned that Mount Cook provides than the formal nature of the applications might suggest. On the other hand, the claimant has persisted in seeking to pursue litigation where it had no prospects, and to do so out of time, raising points without proper thought as to their legal merit.
69. I think that whilst this is not a case for a large award of costs, it is a case for an award of costs because of the hopelessness of the points which were made. I propose to assess those costs myself. They will, I am 100 per cent certain, not reflect at all the costs which the university has incurred in relation to today's proceedings, but I think it important that before proceedings are kept afoot after a sensible offer has been made which resolves the first set of proceedings and other proceedings are then incepted late and with no proper basis, that the court, by way of exception to the Mount Cook principles, should make an award but also reflect in a small way the nature of the proceedings.
70. I propose to make an award of costs in the defendant's favour in the sum of £1,000.
71. MR LEWIS: I am grateful, my Lord. Is that plus VAT?
72. MR JUSTICE OUSELEY: No, the whole lot is £1,000. If VAT is payable, you will have to work out what the VAT component of that is.