AB v University of XYZ
| Jurisdiction | England & Wales |
| Judge | Ms Margaret Obi |
| Judgment Date | 19 March 2020 |
| Neutral Citation | [2020] EWHC 206 (QB) |
| Docket Number | Case No: QB-2019-003966 |
| Date | 19 March 2020 |
| Court | Queen's Bench Division |
[2020] EWHC 206 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Ms Margaret Obi
Case No: QB-2019-003966
Simon Butler (instructed by DPA) for the Claimant
Paul Greatorex (instructed by Farrer & Co) for the Defendant
Hearing date: 17 January 2020
APPROVED JUDGMENT
Introduction
This is the public version of my judgment relating to the Claimant's application for an interim mandatory injunction.
On 16 December 2019, the Claimant was expelled from the University of XYZ (the University) following a finding of sexual misconduct. The allegation was found proved at an earlier hearing which took place on 12 November 2019. The Claimant did not attend either of the hearings.
At the time of his expulsion the Claimant was a final year student; he was due to complete his studies in June 2020. The Claimant seeks an order permitting him to return to the University to continue his studies with immediate effect until further order of the Court.
The Claimant alleges that the University did not have the contractual right: (i) to consider the complaint; (ii) commence the investigation; or (iii) determine the complaint including the imposition of the sanction. There are two limbs to the Claimant's argument. First, the University did not have jurisdiction to determine the complaint based on contract law principles. Secondly, the Claimant was entitled to be represented at the disciplinary hearing due to the seriousness of the allegation and the impact it would have on his future career in accordance with the principles of fairness and natural justice.
The application is of critical importance to both parties. If the Claimant is not permitted to return to the University to resume his studies, he will not graduate in 2020. He will have to repeat his final year either at the University or some other higher education institution depending on the outcome of his substantive claim and any fresh disciplinary hearing. The University, on the other hand, has found the allegation of sexual misconduct proved. A mandatory order, requiring the University to allow the Claimant to resume his studies, has the potential to undermine the disciplinary process. The University raised additional consequences which are addressed below.
An anonymity order was granted, in respect of both parties, by John Bowers QC (sitting as a Deputy High Court Judge) on 19 December 2019. At the outset of this hearing a representative of the press made an application for the anonymity order to be lifted. Although I refused the application, I made it clear that the anonymity order would be reviewed once my judgment was handed down.
Background
Overview
On or around 10 September 2018, the Claimant travelled to another European city as part of the Erasmus Programme, which is a European Union Exchange programme. His placement was between 10 September and 25 January 2019.
As part of the exchange programme the Claimant studied at University A. He arranged his own accommodation and rented a private apartment in the city. The apartment did not form part of the campus and was not owned or managed by University A. The property was owned by a private landlord and the Claimant shared the apartment with a fellow student.
During the Claimant's time at University A he met a number of new friends, including the Complainant. The Claimant was introduced to the Complainant on or around September 2018 by a friend. The Complainant is not a student of the University of XYZ; she attended another university in the UK but was also studying at University A.
The Complaint
On 13 November 2018, the Claimant met a group of friends for drinks; they attended a number of bars. At around 23.00, the Claimant met the Complainant at a pub with other fellow students. The Claimant, his friends and the Complainant had all consumed alcohol.
After midnight, on 14 November 2018, the Claimant decided to join a group of friends, including the Complainant, for drinks at a nightclub. At around 03.30 one of the Complainant's friends asked the Claimant if he would walk the Complainant back to her accommodation. The Claimant agreed. On the way to the Complainant's accommodation, she asked the Claimant if she could use his toilet as his apartment was nearer. The Claimant agreed. At the Claimant's apartment the Complaint used the toilet. She remained in the bathroom for a considerable period of time. When she left the bathroom, she lay down on the Claimant's bed.
The events which followed led to the complaint of sexual assault. The Claimant became aware of the complaint on or around 3 December 2018, following receipt of documents from the University.
On 1 February 2019, the Claimant received notification that an investigation would be undertaken in respect of the complaint. The Claimant agreed to engage in the investigation process.
As part of the investigation the Complainant was interviewed. She stated that the Claimant lay down beside her on the bed touched her sexually, stripped her of all her clothes and attempted to have sexual intercourse with her without her consent. She explained that she felt unable to prevent what happened to her as a result of a combination of her intoxicated state and the effects of the trauma of what was happening. She stated that they subsequently fell asleep until late morning. When they woke later that morning the Claimant attempted further non-consensual sexual activity. The Complainant pushed him away, got dressed, and left the apartment.
The Claimant was also interviewed. His version of events was very different. He stated that he lay down bedside the Complainant on his bed and they kissed consensually. They removed each other's clothing and engaged in other sexual activities. The Complainant was a willing and active participant throughout. They fell asleep. The Claimant denied that there was any further sexual activity. The Complainant left the apartment before the Claimant woke up. The Claimant provided a similar account in his first witness statement dated 7 November 2019.
The Investigation
The investigation was conducted by an independent sexual misconduct investigator. As part of the investigation the investigator had access to a number of text messages that were sent from the Claimant to his friends in the early hours of 14 November 2019 and a text message from the Claimant to the Complainant after she left his apartment. The investigator, in addition to interviewing the Complainant and the Claimant obtained information from a number of their mutual friends. The investigation report is dated 28 February 2019.
On 9 October 2019, the Claimant received a letter from the University which stated:
“ Following a review of the investigation findings, it has been determined under Section 6.1.2 of University Regulation 23: Regulation Governing Student Misconduct and Disciplinary Committees, that a Disciplinary Committee should be convened to hear the allegation made against you:
On 14 October 2018 you committed sexual misconduct against a fellow Erasmus student…”
The letter went on to state that section 2.2 of Regulation 23 provides that an offence committed under the University's Sexual Misconduct Policy will be dealt with under Regulation 23. The University confirmed that the Student Disciplinary Review Panel decided that the complaint fell within the University's Sexual Misconduct Policy and therefore it should be heard by a Disciplinary Committee. The Claimant was notified that the disciplinary hearing had been scheduled to take place at the University on 23 October 2019.
On 16 October 2018, the Claimant's legal representative sent a Letter before Claim. The letter stated that (i) the alleged sexual misconduct did not fall within the Sexual Misconduct Policy and (ii) the Claimant was entitled to submit evidence and be legally represented at the hearing. The legal representative went on to state that the Claimant was “… not in a position to attend the hearing on 23 October 2019, due to the fact that he wishes to prepare evidence with a statement of truth and also wishes to be represented.” The University was informed that an injunction would be sought to prevent the hearing from proceeding on 23 October 2019.
On 18 October 2018, the University notified the Claimant's legal representative that the hearing would be postponed to allow additional time for the Claimant to prepare.
The Claimant was notified of the new date for the disciplinary hearing on 20 October 2019. On 22 October 2018, the University sent an email to the Claimant's legal representative which stated:
“ We considered the request for a later Disciplinary Committee and we have been able, with the agreement of the reporting party, to use another date. The Disciplinary Committee will take place on 12 November 2019 and we have invited your client to attend.
In terms of the jurisdiction of the [University's]…Student Sexual Misconduct Policy Section 3(ii) of the policy states that the policy applies when sexual misconduct ‘occurs whilst a student is engaged in any University or Student Union related activity (including placements or trips).’ Your client was representing the University…on the Erasmus International Exchange Programme, which is covered under the point noted above.
This is not a legal process. We have alleged that your client has breached the [University's] regulations. The points raised about the application of the policy are dealt with in order below.
• Your client can submit evidence for the Disciplinary Committee to consider. This was detailed in our letter to your client on 9 October 2019, and confirmed in our email to you on 11 October 2019. We will require any written evidence that your client may wish to present...
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