England and Wales High Court (Queen's Bench Division) Decisions

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

		Royal Courts of Justice Strand, London. 2LL
		10/03/2006

Mr Justice Underhill :

1. The 'facts giving rise to these proceedings, and their history to date, can be summarised as follows:

(1) In September 2004 the Claimant started a two-year "modular" MBA course -known as "MP41" -at Henley Management College ("the College"). The contents of the two years were designated as, respectively, Parts 2 and 3. Exams for Part 2 were to take place in September 2005; and Part 3 was due to start on 7^th October 2005.

(2) An essential part of the course involved working in workshops with a group of other students. Initially the Claimant was allocated to Group 5, but as a result of difficulties with that group, or between her and another member of it, she left it and was re-allocated to Group 2. Unfortunately difficulties continued, partly by way of continuation of the original problem and partly by way of a knock-on effect with her new group. It is clear from the extensive e-mail correspondence that the College management were actively involved in trying to resolve the problems, although the Claimant was not always happy with their approach. In May 2005 members of Group 2 made it clear that they were not pre ared to continue working with the Claimant. This was communicated to her on 17^th May 2005. The precise sequence of events over the following days need not be considered at this stage. Broadly, however, the College's position was that in the light of the attitude adopted by her peers she could not continue to work in that group, or in any other group, and that how she might nevertheless complete her MBA course needed to be discussed. The Claimant's position was that this was tantamount to expulsion from the course.

(3) Towards the end of May 2005 the Claimant instructed solicitors, AP Caw. There followed considerable correspondence and other communications involving herself, her solicitors and the College about options for completing Part 2 without group work and about whether she might undertake Part 3 by distance learning; but regrettably matters were not resolved.. In the course of that correspondence the Claimant was told by the College that if she felt aggrieved by what had occurred she could take advantage of the College Complaints Procedure (contained in College Regulation no. AR9).

(4) On 18^th July 2005 AP Law wrote a pre-action letter. The College responded on 26^th July 2005 formally making it clear that it was not prepared to offer her any further participation in a group-based course but proposing that she undertake Part 3 by distance learning. It repeated that if she was not prepared to take this route she should follow the College Complaints Procedure.

(5) On 1^st September 2005 Dr. McKenzie the Director of Studies at the College, wrote in more detail to the Claimant explaining "the factors which led me to the conclusion that further attempts to integrate you into a group within the current modular programme intake (MP41) were unlikely to be unsuccessful". She set out various grounds for believing that "your behaviour is not conducive to learning within the groups currently on (MP41)". She again reminded the Claimant of her right to invoke the Complaints Procedure. At the time that that letter was written the Claimant had not yet sat the first year exams, but she did so shortly afterwards and passed.

(6) In the meantime, on 16^th August 2005 the Claimant issued the present proceedings, seeking to have quashed what was characterised as a decision on the part of the College on 17^th May 2005 "to remove the Claimant from the MBA Modular Programme": the proceedings were thus issued on the last day of the three-month period specified in CPR 54./5(1)(b). There was also an application, for a mandatory interlocutory injunction compelling the College to allow the Claimant back onto the course before the start of the new academic year. The essence of the claim is that the College acted in breach of its own procedures and/or procedurally unfairly and/or irrationally.

(7) On 1^st September 2005 Moses LJ (sitting as a Judge of this Court) ordered an expedited timetable; and on 15^th September 2005 McCombe J ordered that the applications for permission and for interim relief be heard orally as soon as reasonably practicable. Both Judges plainly had in mind the impending start of the second year of the course, and McCombe J. referred to it explicitly in his Observations. The College filed its Acknowledgment of Service on 2^nd September 2005.

(8) Despite the directions given by McCombe J., no early hearing of the permission and interim relief applications took place. AP Law wrote to the Court on 19^th September 2005 giving their counsel's estimate for the hearing of a half-day to a day, but noting that the College's counsel believed that one hour would suffice. They asked for a listing to suit their counsel's availability. The College's solicitors, Boyes Turner, wrote to the Court confirming their estimate of an hour and submitting that the Claimant's longer estimate was based on a misunderstanding of the nature of the hearing. They suggested a date of 29^th September, which they had established that the Court could offer, though it appeared that that date was not possible for the Claimant's counsel. No step appears then to have been taken by AP Law to resolve the disagreement as to estimate or obtain a hearing date. (This may or may not be connected with the fact that the Claimant's legal aid certificate was revoked on 10" September 2005.) On 27^th October a firm called Match Solicitors notified the Court that they were now instructed for the Claimant in place of AP Law. At that stage they said that they understood that the outstanding applications were waiting to be listed; but on 9^th November 2005 they wrote to the Court asking that no hearing should be listed pending an attempt by them to negotiate with the College. It was only on 5^th December 2005 that the Court was asked to list the matter: there is a dispute as to whose solicitors took the initiative in this regard. The case eventually came before me on 13th February 2006, when the Claimant was represented by Mr Gregory Jones and the College by Mr David Wolfe. Regrettably, because I had a heavy list I was not able to give my decision on that occasion.

(9) The Claimant has not in the meantime accepted the offer to undertake Part 3 by distance learning and accordingly has had no teaching through the College in this 3^rd academic year. She did however on 3^rd November 2005 submit a thirty-page formal complaint under AR 9 against both members of the College management and three fellow-students. A response by an way of the result of an initial "informal investigation" was sent by the College on 13^th January 2006.

2. The issues formally before me are (a) whether the Claimant should have permission to apply for judicial review and (b) if so, whether she should have interim relief. However Mr Jones accepted in his oral submissions that since reinstatement of the Claimant on the Year 2 course in the current academic year was now impracticable there was no point in seeking interim relief: he submitted that what was required was an expedited substantive hearing.
3. I accordingly turn to the question of permission. I should deal with one point by way of preliminary. The College disputes that its decisions -or in any event decisions of the kind sought to be challenged in these proceedings -are susceptible to challenge by way of judicial review. But Mr. Wolfe accepted before me that this was not a question which could be dealt with on a permission application,
4. However, even putting that issue to one side, it seems to me that this is not a case in which I should grant permission to apply for judicial review. Even if the claimant were able to establish that the College's decision was unfair or otherwise unlawful I do not believe that there is any prospect that this Court would be prepared to grant her the relief sought. Although in form the principal relief claimed is the quashing of the decision of 17^th May 2005, the substance of her claim is an order which has the effect of requiring the College to restore her to the MP41 course, or in any event to an equivalent group-based programme, for Part 3 for the academic year 200516: she indeed makes that point explicitly herself in section 1 of her application for interim relief. I do not believe that it is conceivable that the Court would make an order having that effect, for two distinct, though overlapping, reasons.
5. First, the College's decision was based on a conclusion, explained in some detail in the letter from the Director of Studies of 1" September 2005, that the Claimant's behaviour had been such that she could not work effectively with the current MP41 intake and that if she continued to be included in Group 2, or any other group, it would disrupt the work of her fellow-students. Even if that conclusion were reached by an unfair process or in breach of the College's procedures, I see no prospect of the Claimant being able to establish that it was not bona fide: I need not and do not make any decision about whether the College's views about the Claimant's conduct were "right", but I have no doubt from the e-mail and other documentary evidence lodged by the Claimant that there was material on which they could legitimately form those views, and that they in fact did so. In those circumstances the case falls into the category where the Court will not make an order designed to compel parties to continue in a relationship where the relationship between them has broken down: I see no realistic prospect, whatever the outcome on the issues of fairness or breach of procedure, that the Court would require the College to allow the Claimant back onto the course on which she was originally entered. The Claimant's remedy in those circumstances, assuming the relevant private law right, is by way of compensation; and she has indeed included in the Claim Form (see head G -paras. 39-44) claims for damages for breach of contract and/or negligence. I do not believe that it would be right to allow these proceedings for judicial review to continue in circumstances where the only possible outcome would be a quashing order or declaration which gave rise to no substantial public law remedy.
6. Secondly, the passage of time means that any such remedy would now be too late to be useful -and that is as a result of delay on the part of the Claimant. The decision complained of is said to have been made on 17^th May 2005. As discussed above, the substantive relief which the claimant required was her restoration to a group for the purpose of continuing with MP41 (Part 3) with effect from the start of the new term. Even assuming such relief to have been potentially available, it needed to be granted before the beginning of Year 2, i.e. in effect by the end of September at latest. It is strongly arguable that that meant that "promptness" for the purpose of CPR 54.5(1)(a) required the issue of proceedings substantially sooner than 16^th August 2005, particularly since I believe that interim relief was likely to be an unsatisfactory expedient in a case of this kind. But in any event the Claimant was obliged to take prompt advantage of the opportunity for an early oral hearing set up by the orders of Moses LJ and McCombe J. In my view Boyes Turner were right in their view of the appropriate estimate, and I therefore believe that the Claimant could and should have accepted the hearing date of 29^th September, even if that meant a change of counsel; but even if some longer estimate were justifiable I believe that in the light of McCombe J's order the Court would have listed a hearing in late September or early October if pressed to do so. There was no such pressure. It may in fact be that the Claimant's inactivity at this crucial time was caused by funding difficulties, but I am not concerned so much with blame as with the effect of the delay. The matter was allowed to slip right through October, and then again (though by then the damage may have been done) through November. The result of all this slippage is that even if an application for judicial review were allowed to proceed there could no longer be any question of the Claimant being admitted for the current academic year.
7. Mr. Wolfe urged on me a further ground for refusing permission, namely that the Claimant has an alternative remedy under the AR9 procedures referred to above. Mr. Jones submitted that AR9 was not formally applicable: the applicable procedure was AR 8, being the College Disciplinary Procedure, which the College should have - but had not - invoked if it wished to expel the Claimant. He also submitted that AR 9 was in any event slow and insufficiently independent. Mr. Wolfe denied each of those points. Among other things, he observed that if the Claimant had invoked AR 9 when she was first invited to do so, rather than in November, it would have been concluded by now; and even now it could be concluded well before the beginning of the 2006-7 academic year, so that if there were any prospect of the College being persuaded to permit the Claimant to return to a group-based course there was plenty of time for that process to be worked through. In the light of the conclusion which I have reached above it is unnecessary for me to resolve the various disputed issues about the AR 8 and AR 9 procedures (which I would in any event be loath to do on a permission hearing); and the availability of an alternative remedy accordingly does not form part of my grounds for refusing permission. But I can nevertheless observe that, other things being equal, problems of the kind which have regrettably arisen between the Claimant and the College are better resolved in a domestic tribunal than by the intervention of the Courts. I would encourage both parties to continue to try to find a mutually acceptable way out of this sad situation, whether by use of the AR 9 procedure or, as Mr Wolfe indicated might be acceptable, some version of it modified to meet some of the concerns expressed by Mr Jones.
8. As I have already noted, Mr Jones recognised in his oral submissions the difficulties caused by the passage of time and effectively accepted that the earliest that the Claimant could realistically resume the MP41 course would now be in the new academic year starting in October 2006 -which would also have the advantage that the fellow-students between whom and the Claimant the difficulties had arisen would have moved on, removing or at least mitigating the "relationship difficulties"to which I refer in para 5. But I do not believe that it would be right to keep the present proceedings in being as a vehicle for testing the lawfulness of a decision not to admit the Claimant in that year. The decision challenged was, essentially, a decision to exclude her from continuing on MP41 in the academic year 2005/06 for the reasons then given. I am not clear whether the College would accept that the relationship difficulties which led to its original decision would mean that they were not prepared to admit her to Part 3 in But to the extent that a decision may now have been taken, or may be taken hereafter, not to admit her in 2006/7, that would be a different decision, taken in the light of circumstances at that later date: the reasons would no doubt overlap with those underlying the earlier decision, but they would not be the same, and the outcome of the Complaints Procedure might also be highly material.
9. I accordingly refuse permission to apply for judicial review. However, this decision leaves open the possibility that the Claimant may have a good claim for damages. She would have, as the law now stands, no such claim as a matter of public law; but as noted above she has advanced in her Grounds private law claims in tort and contract. Mr. Jones submitted that if I were to refuse permission I should make an order under CPR 54.20 permitting those claims to proceed as if not started under CPR 54. Mr. Wolfe did not oppose this submission, without prejudice to any submissions as to the ultimate merits of those claims; and I agree that it would be unnecessary and wasteful to require the Claimant to issue fresh proceedings. I do however think that any such private law claim needs to be properly pleaded. I accordingly diriect that under CPR 54.20(a) that the part of the claim set out under head G of the Grounds proceed as if started under CPR 7, and I make the following directions under CPR 54.20 (b):

a) an order for transfer to the Queen's Bench Division under CPR 30.5 (2);

b) the Claimant to serve Particulars of Claim within 21 days, stating -as regards damages -the basis on which her claim is formulated and giving (a) such precise particulars of loss as are now possible and (b) an indication of the nature and, so far as possible, broad quantum of any anticipated future loss;

c) Defence 28 days thereafter

d) Reply (if so advised) 14 days thereafter.

I will not make directions for further down the line, but in case it is of assistance I would state my provisional view that this is not a case in which substantial further disclosure is likely to be necessary, save on the issue on quantum; and that I would hope that the parties may be able to agree, in order to save expense, that the existing witness statements can be re-used as regards liability issues.

10. It was agreed at the hearing that I would be prepared to decide the question of the costs of these proceedings on the basis of written submissions, with Mr. Jones making initial submissions and Mr. Wolfe responding. I am content to adhere to that arrangement if it will in truth effect a saving in costs or otherwise be more convenient, and in that case the Claimant's submissions should be lodged within three days of the formal hand-down date and the College's reply within three days thereafter. But if after all the parties agree that they would prefer to argue the matter orally following the formal hand-down I should be content with that.