AB v The University of XYZ
| Jurisdiction | England & Wales |
| Judge | Hugh Southey |
| Judgment Date | 06 November 2020 |
| Neutral Citation | [2020] EWHC 2980 (QB) |
| Docket Number | Case No: QB-2019-003966 |
| Court | Queen's Bench Division |
| Date | 06 November 2020 |
[2020] EWHC 2980 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Hugh Southey QC (Sitting as a Deputy Judge of the High Court)
Case No: QB-2019-003966
Simon Butler (instructed by Simon Butler) for the Claimant
Paul Greatorex (instructed by Farrer & Co) for the Defendant
Hearing dates: 20 – 22 October 2020
Approved Supplementary Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Hugh Southey QC:
SUPPLEMENTARY JUDGMENT
I circulated a draft of the judgment in this matter on 27 October 2020. I sought a draft order agreed by the parties. I indicated that provision should be made for representations where aspects of the order could not be agreed. Unfortunately, I merely received representations regarding various matters. Addressing the issues as best I can.
Relief
The Defendant has queried what the Court understood was meant by evidence that it was practical to hold a further disciplinary hearing. It is said to be uncertain whether the complainant is prepared to attend further disciplinary proceedings or whether she and the disciplinary committee require legal representation. It is said that I should invite further representations regarding relief. I am not willing to do that for the following reasons:
i) Having invited the parties to clarify whether my record of the evidence is correct, it appears to be agreed that a witness called by the Defendant, Ms Gower, had given evidence that it was practical to hold a fresh disciplinary hearing. Although I did invite the parties to make representations as to whether relief should be addressed after judgment, I never ruled that it should be addressed at that stage. As a consequence, the issue of relief remained live throughout the trial and evidence was adduced regarding that issue. It is simply too late to now adduce further evidence as to the practicality of relief.
ii) Substantive amendment of a draft judgment is only permissible in exceptional cases ( R (Mohamed) v Secretary of State for Foreign and Commonwealth Affairs (No. 2) [2011] QB 318 at [4]). I fail to see what the exceptional circumstances are in this case. Re-visiting relief would involve considering substantive amendment.
iii) The matters raised can be addressed at a second disciplinary committee. For example, if the complainant fails to attend, it will be for the committee to decide whether it can proceed on the basis of hearsay from the first hearing. I should add that I took account of the fact that the complainant might seek legal representation in my judgment [90(vi)].
iv) The Defendant has raised the possibility of an appeal. If an appeal is to be brought, it needs to be brought urgently in light of the possibility of the Claimant re-starting his studies in January 2021.
In light of these matters it appears to me that I should not reopen issues of relief.
Permission to appeal
I am not willing to grant permission to appeal. Having heard argument, the applicable principles appear clear. While there may be greater room for argument about the conclusions that I reached applying those principles, that is not the sort of matter that will normally cause an appeal to be allowed ( DB v Chief Constable of Police Service of Northern Ireland [2017] NI 301).
Stay
Despite being unwilling to grant permission to appeal, I accept that the Defendant should be given an opportunity to appeal. As a consequence, I am willing to stay my order for 21 days to enable an appeal to be brought and a further stay to be sought from the Court of Appeal. I initially concluded that 14 days was appropriate. However, having reviewed matters it appears to me that 21 days is fairer. That short period has been set in light of the possibility of the Claimant re-starting his studies in January 2021. I am not willing to allow the stay to continue until permission is determined if an application for permission is lodged within 14 days. It appears to me that such an order would make it highly unlikely that a disciplinary hearing will be heard before the New Year whatever the Court of Appeal make of the merits of an appeal. A further stay can be sought from the Court of Appeal if appropriate.
Costs
The general rule is that the unsuccessful party will be ordered to pay the costs of the successful party. However, there is a discretion to depart from that rule. Matters that are relevant include:
(a) the conduct of all the parties;
(b) whether a party has succeeded on part of its case, even if that...
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