England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		13/09/2013

MR JUSTICE FOSKETT:

1. I heard this substantive application for judicial review on 4 July. Langstaff J gave the Claimant permission to apply for judicial review in relation to the principal issue and Lindblom J, on an oral renewal, granted her permission on the second issue. The Claimant acted in person before me as she had done before Langstaff J and Lindblom J although she had the benefit of being able to rely upon a Skeleton Argument prepared in support of her application by Mr Thomas Amraoui. That Skeleton Argument was of value to me in my appraisal of her case.
2. The case raised issues concerning the interpretation of the Education (Induction Arrangements for School Teachers) (England) Regulations 2008, regulations under which an appeal may be pursued by a newly qualified teacher (an 'NQT') against a decision of a local education authority ('the appropriate body') that his or her compulsory induction period has not been completed satisfactorily. It raised issues concerning the extent to which it is lawful and/or appropriate for matters occurring outside the 3-month period normally constituting an induction period to be taken into account in deciding whether the NQT has or has not completed that period satisfactorily. An issue that arose indirectly was the extent to which it was possible for a local education authority to agree with an NQT that an uncompleted induction period could effectively be disregarded and a fresh induction period commenced: it was an issue raised on the Claimant's behalf by the Union representative who represented her before the GTCE's appeal panel (see paragraph 3 below), but not raised specifically in the grounds for judicial review. Since it was common ground before the appeal panel that there had been such an agreement in this case, it seemed to me that I should consider the appeal body's view on it particularly as the Claimant was acting in person.
3. At the time of the material events in the case the General Teaching Council for England was the appellate body responsible for hearing appeals of the nature indicated above. Many of its functions, including the functions relevant to this case, were taken over as from 1 April 2012 by the Secretary of State for Education who defended the claim. Where I refer to 'the Defendant' I refer to the Secretary of State.
4. I reserved judgment. By 16 July the draft judgment was ready for sending to the parties for typographical corrections. I need say no more for present purposes other than that it was to the effect that the Claimant should succeed and the matter should be remitted to the Defendant for reconsideration.
5. Because of concern that a litigant in person may not understand the obligations of confidentiality involved at this stage in the process of promulgating a judgment, a practice commonly adopted is not to send out the judgment for correction in this fashion, but to hand it down in draft form "subject to editorial corrections". Any revisions can then be incorporated before the final approved version is handed down. However, having seen and heard the Claimant in person, I assessed her as someone who could be trusted to treat the draft judgment confidentially. Accordingly, I decided that it could be disseminated in the usual way. On my instruction, my Clerk said this in the covering e-mail on 16 July:

"Attached is the draft judgment in this case.  Mr Dunlop will understand the terms upon which it is sent.  Miss [S], may I explain that the purpose of sending it to you is for you to check to see if there are any typographical or other obvious errors that the Judge ought to consider before handing down the final form of the judgment publicly?  The draft judgment is strictly confidential until then and must not be shown to, or discussed with, anyone else.  It would be a contempt of court to do so.  Once the judgment is handed down formally (which the Judge will hope to do on Friday of this week or Monday of next week), then it will be open to you to discuss it openly.  You may be well advised then to discuss its implications with your Union and/or any legal advisers to whom you have access.

Can you both let me have any proposed corrections (on a separate Word document) by 4 pm on Thursday, please?  I will send you both the final form of the handed down judgment when it has been handed down.

If there are any consequential applications (including any application for costs on your part, Miss [S]), they should be put into writing and sent to me within 14 days of the handing down of the judgment and the judge will consider them on paper."

6. Mr Dunlop sent an e-mail to my Clerk at 16.37 that day (copying it to the Claimant) in the following terms:

"I would be grateful if the judge could delay the handing down of judgment (even if only to Monday) to allow some time for the parties to consider the possibility of settlement.  It may assist, for those purposes, if judgment has not yet been handed down."

7. On the following day at 08.55 the Claimant sent an e-mail to my Clerk (copying it to Mr Dunlop) in the following terms:

"Without discussing the draft document, would it be ok for me to discuss settlement options with other people e.g. friends, union and teaching agency?"

8. In the light of that e-mail and the e-mail from Mr Dunlop the previous evening, my Clerk replied to the Claimant, copying in Mr Dunlop, on my behalf in the following terms:

"The Judge understands that both you and Mr Dunlop would prefer the hand-down of the judgment to be delayed until you have had an opportunity to discuss settlement.  He is happy to accommodate this for a few days, but even if settlement is achieved it would be his intention that the judgment is delivered.  I will not ask the Listing Office to list the case for a hand-down of the judgment until I have heard from both of you about the situation concerning settlement.  I would be grateful, please, if I could hear from you both by 4 pm on Friday about the position.

So far as discussing matters with others is concerned, the Judge is concerned that you may inadvertently breach the confidentiality provision.  However, he does not wish you to be disadvantaged in any settlement discussions.  Since you acted in person you do not, strictly speaking, have a "legal representative" with whom to discuss matters.  The Judge is, however, content for you to speak to your Union representative and a senior person at your teaching agency (or any solicitor with whom you have had dealings) – and you may show them the draft judgment (though not provide them with a copy) – provided they are told in advance that they must not communicate its contents to anyone else before it is handed down.

Would you please confirm that you will deal with matters in that way?  If so, we will deal with things as I have set out above."

9. At that stage it will be apparent that I was under the impression that I was merely being asked to delay handing down the judgment whilst discussions took place, not that I should not hand it down at all.
10. That position appeared to have changed by the time I saw an e-mail from the Claimant to the solicitor for the National College for Teaching and Leadership (sent at 08:48 on Friday, 19 July) which contained the following paragraph:

"The main purpose behind this letter is to see whether you would be amenable to reaching a settlement of this case.  These proceedings have been going on for a very long period of time and have caused me a great deal of stress, and I believe that it would be in the interests of all parties to come to some sort of amicable agreement that allows both parties to avoid the need for a judgement to be put down." (My emphasis.)

11. On Monday, 22 July, Mr Dunlop sent an e-mail to my Clerk in the following terms:

"Settlement negotiations are ongoing.  We have made a proposal to Ms [S] that would include an order that the judgment should not be handed down and the draft should not be disclosed.  Ms [S] would like more time to consider that proposal.  Both parties would be grateful if the handing down of the judgment could be delayed for that purpose until at least the end of next week."

12. Mr Dunlop has confirmed subsequently that it was the Defendant that first suggested that a settlement might be achieved if a condition of the settlement was that the judgment would not be handed down.
13. By Friday, 26 July, Mr Dunlop told my Clerk that the settlement that had by then been concluded in the form of a proposed consent order was "conditional on judgment not being handed down." He said this in an e-mail: "If the judge chooses to hand down judgment, we will need to reconsider the settlement." The proposed consent order was in the following terms:

1.       The decision of the GTCE dated … is quashed.

2.       The matter is to be remitted back to the Secretary of State who will extend the Claimant's induction period so as to give the Claimant THREE more terms.

3.       If and when the appropriate body and/or Secretary of State comes to consider the Claimant's performance during her induction period, they shall not have regard to her performance at [X School] in the academic year 2008/2009 but they shall be entitled to have regard to her performance at [Y School] in the academic year 2009/2010.

4.       There be no order as to costs. 

5.       The draft judgment served on the parties will not be handed down or disclosed to any person or used in the public domain."

14. Clause 5 in the consent order was altered shortly thereafter to "the draft judgment served on the parties will not be handed down or used in the public domain", a change prompted by the desire of the Claimant to show the draft judgment to family members, the Defendant apparently feeling entitled to say that she could do so provided that the family members should be aware that they could not disseminate the judgment further. I will return to this below (see paragraph 31 below).
15. Mr Dunlop sent a written application supporting his submission that the judgment should not be handed down in an e-mail sent at 15.55 on 26 July. A little later in the day my Clerk received an e-mail from the Claimant saying that she had considered the question of the handing down of the judgment and that she had read Mr Dunlop's submissions. She said that whilst she did "not necessarily agree with all the submissions", she could confirm that she did not wish the judgment to be handed down and agreed to the proposal in the consent order.
16. By this stage I was getting a little concerned that the Claimant was feeling under pressure to agree that the judgment should not be handed down because, in the absence of agreement on that issue, the Defendant, through his legal advisers, (a) was threatening to seek permission to appeal, (b) would not agree (as he was prepared to do at that stage) to provide her with another opportunity to complete a full induction period and (c) would seek costs if any appeal was successful.
17. Accordingly, my Clerk contacted the parties again on Monday, 29 July, in the following terms:

"The judge is considering the application that he should not hand down the judgment in this case. As Mr Dunlop will know, the Judge has a discretion on this matter irrespective of any agreement of the parties: see, e.g., F&C Alternative Investment Holdings Ltd v Barthelemy, etc [2011] EWHC 1851 (Ch) – copy attached. He wishes to avoid if possible calling the parties back to court to consider the implications of what is proposed. Before deciding whether he needs to do that, he would be grateful if the following questions could be answered, the first three by each party independently and (v) and (vi) essentially by the Defendant:

i) Which party first suggested that a settlement might be achieved if a condition of the settlement was that the judgment would not be handed down?

ii) If that party was the Defendant, with whom did the Claimant discuss it before agreeing to it?

iii) If it was the Claimant, with whom had she discussed the idea before suggesting it to the Defendant?

iv) Has the Defendant considered offering the Claimant an undertaking that, in the event of obtaining permission to appeal against the judge's judgment and succeeding on the appeal, the Defendant would in any event agree to paragraphs 1-4 of the proposed consent order?

v) Has the Defendant considered the circumstances in which the Court of Appeal might entertain an appeal notwithstanding that it is academic as between the two parties: see, e.g., paragraph 15 of Hutcheson v Popdog Ltd [2012] 1 WLR 782 (copy attached).

vi) How many appeals by NQTs have there been over, say, the last 5 years?"

18. Replies from both parties were received on 1 August: (i) was clarified as I have previously indicated (see paragraph 12 above); (ii) was clarified in the sense that the Claimant said she had failed to be able to engage her Union on this issue, one official confirming that assistance could be provided after judgment was handed down and another saying the Union would not be able to get involved in her judicial review; (iv) was answered in terms that the Defendant did not consider this issue prior to my raising it, but was not, at present, inclined to give the undertaking for two reasons: first, if the Defendant was to have to incur the costs of an appeal to the Court of Appeal, he would want to be able to recover those costs;  second, it was not felt that the three requirements in Hutcheson v Popdog would be met. One point made on the Defendant's behalf in that connection was that it was suggested that it would be unlikely that both sides of the argument would be fully and properly ventilated because the Claimant was not represented at the judicial review hearing and, accordingly, there must be a good chance she would not be represented at the appeal hearing.  Finally, I have been told that the answer to (v) is that in 2008 there were 7 appeals, in 2009 there were 9, in 2010 there were 3, in 2011 there were 5 and in 2012 there were 3 (pre-April 2012).  It will be appreciated that I wanted to know how many cases there are each year in which the kind of issues ventilated in this case might arise.
19. Without my giving any further detail, it is obvious that the Defendant disagrees with aspects of the judgment I was proposing to hand down and wishes to avoid it being handed down because it might be treated as a precedent. I am troubled by this approach and will say a little more about it below (see paragraphs 22-29). Giving a judgment that is not accepted by one party or another is the familiar position for any judge in any case. When dealing with cases in the Administrative Court, given the very nature of its jurisdiction, a government department will inevitably from time to time be the losing party. Usually, the governmental side will address the issue of an adverse decision if it arises by, for example, (i) appealing if permission is given, (ii) changing the relevant regulation or statutory provision to clarify what otherwise might not have been clear (if the issue is the construction of a regulation or statute) or (iii) by modifying the practice previously adopted in the light of the terms of the judgment. I cannot, of course, say that what was proposed by the Defendant to the Claimant in the present case in relation to the handing down of the judgment has not occurred before, but I can say that in the 6 years I have been giving judgments regularly in the Administrative Court it has not, so far as I can recall, occurred in respect of any judgment I had proposed giving. However, I have no information as to how prevalent is the practice generally.
20. I understood from Mr Dunlop that the Defendant had considered the position if I exercised my discretion to hand the judgment down notwithstanding the agreement of the parties. He indicated that if the Defendant was granted permission to appeal (either by me or by the Court of Appeal), the Defendant would be likely to approach the Claimant again and see if a consent order could be agreed along the same lines as the one agreed save that paragraph 5 is replaced with the following: "The order of Foskett J is quashed".  His e-mail suggested that neither party wanted to incur further costs on an appeal and, accordingly, the Claimant "may well be inclined to agree to such a consent order and the Court of Appeal may well be inclined to sanction it."  He went on to suggest that it "would be better if judgment were not handed down rather than have a judgment in the public domain, which has been quashed by consent." His e-mail also asked whether I intended to hand down judgment and, if so, whether I would grant permission to appeal.
21. That e-mail was doubtless composed on instructions and in consultation with Departmental officials and others. A number of observations might be made about it, but I will confine myself to the following:

(a) I cannot, of course, speak for what the Court of Appeal might have done in this case had the issue arisen, nor can I speak of the court's practice generally, other than to observe that paragraph 6.4 of Practice Direction 52A suggests that it will allow an appeal by consent only if, at the lowest, "good and sufficient reasons for doing so" are demonstrated. In this case two High Court Judges other than me were of the view that issues that the Claimant wanted to raise were arguable.

(b) The Court of Appeal would have become aware had it been fully informed about the case (as I became aware when considering the papers in the case) that the Appeal Panel of the GTEC, before which the Claimant's appeal was heard, decided on the procedure it was proposing to adopt (and, as a consequence, the material it would consider) before it took any advice from its legal assessor.

22. However, be that as it may, I was effectively confronted eventually with a joint application that I should not hand down a final form of judgment in this case, the draft of which had been seen by the parties. Having reflected on the matter I (through my Clerk) informed the parties on 2 August that "with considerable misgivings" I had decided not hand down the judgment "principally because [I did] not wish to disturb a settlement that [Miss S] considers to be in her best interests".  I indicated that I proposed to give a ruling in due course explaining my reasons for taking this step and this ruling, of course, seeks to do that. 
23. The approach of a court to such an application is to be found authoritatively in Prudential Assurance Company v McBains Cooper and others [2000] 1 WLR 2000, an decision arising from the settlement of a surveyors' negligence action tried by His Honour Judge Richard Havery QC sitting in the Technology and Construction Court between the sending by the judge of the draft judgment to the parties and the date he proposed to hand down the judgment. Judge Havery decided not to accede to the joint request of the parties that he should not hand down the judgment, but deferred doing so until the Court of Appeal had adjudicated. Brooke LJ (with whom Robert Walker and Peter Gibson LJJ agreed) said this:

"In my judgment the judge was correct in the way he gave his ruling in this matter, for the reasons he gave. He did possess a discretion to decide whether or not to hand down his judgment, and there are no grounds on which this court could interfere with the way in which he in fact decided to exercise his discretion. … although much of his judgment was of interest only to the immediate parties to the dispute, there were three rulings on points of law which were potentially of wider interest, and a judge sitting in a specialist jurisdiction like the Technology and Construction Court is uniquely well placed to judge whether it would be of value if his judgment were a matter of public record.

Of course the courts are always anxious to assist parties to resolve their disputes, and I realise that one consequence of this judgment is that the parties to the present action may now face ancillary litigation on the question whether their compromise is binding, or may face the expense and inconvenience of an appeal if it is accepted or held that it is not. They have, however, placed themselves in this position by making a compromise agreement on the mutual understanding that, as a consequence of their compromise, the judgment would not be handed down. This mutual understanding is unenforceable, in that public policy dictates that the judge should have an independent discretion to decide whether to deliver his judgment or not. The wishes of the parties are just one factor, but not an overriding factor, which a judge should take into account in deciding how to exercise his discretion."

24. Although those observations were made in what might be termed a "non-public law" context, the discretion referred to plainly exists in other contexts including in respect of cases determined in the Administrative Court on an application for judicial review. Quite frequently, of course, a decision on an application for judicial review, particularly if it involves an element of statutory construction or considerations of policy, can have a wider interest than merely for the individual claimant. To that extent, in a general sense there is an argument for greater weight to be placed in the discretionary exercise in such a situation on the "value [of the] judgment [becoming] a matter of public record" than in what are essentially disputes between private parties. However, it is to my mind somewhat invidious (and faintly unappealing) for a judge to be required to decide whether his or her judgment is of sufficient interest and importance for it to be given notwithstanding the desire of the parties for it not to be given.
25. Having performed the balancing exercise as best I could in the circumstances of this case, I decided that I would not hand the judgment down and thus acceded to the joint desire of the parties. As foreshadowed above, I gave greater weight to the personal interests of the unrepresented Claimant in her desire to give herself the opportunity to complete an induction period satisfactorily than to the potential wider interest of promulgating a judgment that might be of value in deciding the appropriate procedure in other cases. Whether that judgment would have withstood any appeal that the Defendant might have sought to bring is, of course, unknown, but it seems to me to be of concern that the Defendant, through his representatives, should effectively seek to buy off the inconvenience of a judgment with which he disagrees by insisting that a settlement will be concluded only if there is agreement that the judgment is not handed down rather than by taking the normal step of appealing. One factor I took into account in deciding on the course of action I took was the information conveyed on the Defendant's behalf of the number of appeals of the sort involved in this case considered annually through the appeals process (see paragraph 18 above). It did not seem to me that there were many. That factor might, one supposes, have led the Defendant not to be so concerned about the promulgation of a judgment with which he disagreed. However, that was not the position.
26. There are two aspects of the decision in Prudential Assurance Company v McBains Cooper to which I would draw attention as having a resonance in the present context. The first was adverted to by Sales J in F&C Alternative Investment Holdings Ltd v Barthelemy, etc [2011] EWHC 1851 (Ch) where he drew attention to what Brooke LJ said about the practice of sending the parties the draft judgment in advance of it being handed down. Brooke LJ said this (at p. 2008E-F) about the Practice Statement (Supreme Court: Judgments) [1998] 1 WLR 825 which set out the practice thereafter adopted:

"There is no indication in the practice statement that its purpose is to allow the parties to have more material available to them to help them to settle their dispute. Its purpose is to introduce an orderly procedure for the delivery of reserved judgments, whereby the parties' lawyers can have time to consider and agree the terms of any consequential orders they may invite the court to make and the process of delivering judgment can be abbreviated by avoiding the need for the judge to read the judgment orally in court." (My emphasis.)

27. In other words, the provision of a draft judgment is not to be seen simply a staging post on the way to eventual settlement.
28. The second matter is the reflection in Brooke LJ's judgment of an interchange between the court and Counsel in that case (at p. 2009A-C):

" … When we put to counsel the point made by the judge to the effect that if they were right, powerful defendants like insurance companies could pick and choose which judgments they were happy to see published and which judgments they were willing to pay money to suppress, we were told that it has always been a characteristic of the common law that it has developed haphazardly. It was then suggested to us that there might be one rule for first instance courts and a different rule for appellate courts. For the latter, it appeared to be conceded during the course of argument that this court might have a residual discretion to hand down its judgment notwithstanding the fact that the parties had compromised their dispute, if only to correct errors in the reported judgment in the court below or to reconcile conflicting lines of authority."

29. It is, of course, plain from the decision of the Court of Appeal (see paragraph 23 above) that the position taken by Counsel was not accepted. However, the short point for present purposes is that the Defendant in this case is potentially a "powerful" defendant (as, of course, could be said of other government departments in other cases), perhaps most particularly so when responding to a case advanced by a litigant in person. The court will always be anxious to ensure that the scales are balanced as evenly as possible in such a situation. Given that experience demonstrates that an increasing number of claimants for judicial review are (either by choice or through lack of funding or support from other sources) bringing claims themselves, it is not difficult to see that the kind of situation that has arisen in this case might not repeat itself from time to time.
30. I have given my reasons for deciding as I did, but part of the reason for giving this detailed explanation is to highlight some of the issues that, as it seems to me, arise and may with increasing frequency arise in the future.
31. So far as the proposed consent order was concerned, I was doubtful whether there was jurisdiction to make an order precisely in the terms set out in paragraphs 2 and 3 of the draft order. Accordingly, I proposed that an order in traditional Tomlin form should be made in the terms set out in the Appendix to this ruling. The parties accepted that proposal. It will be noted that I was not prepared for the draft judgment to be distributed or considered any more widely than by 2 August it had already been given that neither party wished it to be handed down publicly. I did feel obliged to draw attention to the fact that it was for me to decide to whom the draft judgment should be shown and that it was not within the gift of the Defendant that the Claimant should be entitled to show it to members of the family.
APPENDIX

UPON THE COURT ACCEPTING THE SUBMISSION OF BOTH PARTIES THAT THE DRAFT JUDGMENT SHOULD NOT BE HANDED DOWN

IT IS ORDERED AND DIRECTED that the draft judgment shall not be disclosed to any person to whom it has not already been disclosed

BY CONSENT IT IS ORDERED –

32. The decision of the GTCE dated … is quashed and the appeal is remitted to the Secretary of State on the terms set out in the schedule to this order and that all further proceedings herein be stayed save for the purpose of enforcing the said terms for which purpose each party shall have permission to apply.
33. That there be no order as to costs.
TERMS OF SETTLEMENT
34. Upon remission of the appeal to the Secretary of State he will extend the Claimant's induction period so as to give the Claimant THREE more terms.
35. If and when the appropriate body and/or Secretary of State comes to consider the Claimant's performance during her induction period, they shall not have regard to her performance at [X school] in the academic year 2008/2009 but they shall be entitled to have regard to her performance at [Y school] in the academic year 2009/2010