Malcolm Murray Noble (Plaintiff v Inner London Education Authority (Defendants
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE STEPHENSON,LORD JUSTICE GRIFFITHS,LORD JUSTICE PURCHAS |
| Judgment Date | 24 November 1983 |
| Judgment citation (vLex) | [1983] EWCA Civ J1124-2 |
| Date | 24 November 1983 |
| Docket Number | 83/0460 |
| Court | Court of Appeal (Civil Division) |
[1983] EWCA Civ J1124-2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR. JUSTICE NOLAN)
Royal Courts of Justice
Lord Justice Stephenson
Lord Justice Griffiths
(not present)
and
Lord Justice Purchas
83/0460
1983 N No. 1547
MR. J. PEPITT QC and MR. D. RADFORD (instructed by Messrs. Janners, Solicitors, London W1Y 2HD) appeared on behalf of the Plaintiff (Appellant)
MR. A. IRVINE QC and MR. P. STEWART (instructed by Mr. R.A. Lanham, Solicitor, London SE1 7SS) appeared on behalf of the Defendants (Respondents)
This is an appeal by a schoolmaster, Mr.. Noble the plaintiff, against Mr.. Justice Nolaa's refusal to grant him a declaration against the defendants, the Inner London Education Authority ("ILEA"), that he was validly appointed by them as second master at Dunraven School by letters of 12th and 13th April 1983.
At the request of the parties the judge treated the hearing of the plaintiff's application for different kinds of interlocutory relief, including an injunction, "as a trial of the main issue" between Mr. Noble and ILEA, and gave judgment for the defendants in open court. The only question on the appeal is whether the declaration sought should have been granted, our answer to which will determine all other questions raised by the parties. There is no dispute that ILEA'S letter of 12th April constituted an offer, and Mr. Noble's endorsement on it of 13th April an acceptance, of the second mastership. What ILEA dispute is that the contract was within their powers. Their case, accepted by the learned judge, is that it was beyond their powers because it rested on a decision of the school governors which was invalidated by a breach of the statutory regulations which regulated the plaintiff's appointment. The breach has been described by ILEA as a technical irregularity, but technical or not, it has had the most unfortunate consequences for the plaintiff and the school, whether we hold the appointment valid or invalid.
Early this year the plaintiff was a senior teacher employed in the service of ILEA at the school as head of business studies and senior teacher in charge of examinations and welfare and discipline. He applied for the post of third deputy head (or second master), the school having a headmaster (who was Mr. Grimwood), a deputy head and a second deputy head. The post had been advertised externally. He was shortlisted for the post. I call it a "post", for that is what it was called by ILEA, by Mr. Noble and by Mr. Grimwood; and although it was argued before the judge and this court that it was not a post, I have no doubt that the judge was right to hold that it was a post for reasons which he gave and I shall quote later.
On 22nd March 1983 Mr. Noble was interviewed by the school governors with four other candidates and recommended by them to ILEA for the appointment of second master. Again I call it "recommended" because it was so called, but there is a dispute whether it would have been correct to say that he was "nominated" for the appointment, as the judge was asked to find and did find. I think that the governors should perhaps have used the word "nominated", but their use of the wrong word does not matter, for reasons which again I give later.
At the meeting eleven governors attended and voted and there was present also Mr. Waters, who was ILEA's district inspector, the headmaster and his deputy headmaster, and the acting clerk to the governors. Among those governors who took part in the proceedings and voted were a teacher at the school, Mr. Kazakos, and a Mr. Wallman. On 12th April ILEA acted on the governors' decision and wrote to Mr. Noble the following letter:
"Dear Mr. Noble, I hereby offer you a post as Second Master at Dunraven School from 1st September 1983 with a salary on Scale Second Master in accordance with the current document Scales of Salaries for Teachers in Primary and Secondary Schools, England and Wales.
"Salary will normally continue on this scale as long as you hold this responsibility and carry out the duties of the post satisfactorily. You will receive a separate notification of your precise salary within the scale as soon as possible.
"Your existing conditions of service continue unchanged. In particular, the right is reserved to employ you in any school in Inner London at the discretion of the Authority, and you will be required to perform such duties as a member of the staff of the school as shall be entrusted to you by the Head.
"If you are prepared to accept the post please sign the suplicate copy of this letter and return that copy to this office. The top copy is for you to keep"
and it is signed "William Stubbs, Education Officer". At the foot, Mr. Noble signed his acceptance.
In May "the headmaster" congratulated Mr. Noble in the "Dunraven News" sent to parents on his appointment as Third Deputy Head, and his name appeared in that position in the School's "A Guide to Parents and Pupils".
But on 2nd June Mr. Wallman, who had attended the governors' meeting on 22nd March, wrote to ILEA this letter of complaint:
"Dear Sir, I am a Governor of Dunraven School and am writing to express my concern at the recent appointment of a Second Master/Mistress. The successful candidate, Mr. Noble, is currently Head of Business Studies and a Senior Teacher at Dunraven. He was selected by only one vote from an external candidate, Mrs. Gadd. One of those supporting Mr. Noble was Mr. Kazakos, a Teacher Governor.
"My concern arises from the fact that Mr. Kazakos is now a candidate for the Senior Teacher post left vacant by Mr. Noble's promotion. It had seemed odd at the time that Mr. Kazakos should participate in the Second Master/Mistress appointment, but I had naturally assumed that either Mr. Kazakos himself or the Clerk to the Governors would have disqualified him had he been ineligible to participate. However, on receiving the papers for the Senior Teacher appointment I examined the relevant Regulations. It is clear from paragraph 4 of the Schedule to the Education (School Governing Bodies) Regulations 1981 that Mr. Kazakos was debarred from participating in the meeting or voting on the appointment.
"If Mr. Noble had been selected by a clear majority it would perhaps have been possible to overlook this irregularity. Since the vote of the debarred Governor was crucial however,. I would suggest that the post must be re-advertised. (I should mention that since the Chairman of Governors supported Mrs. Gadd, she would in fact have been appointed on his casting vote if Mr. Kazakos had not voted).
"I am copying this letter to Mr. Grimwood, Head Teacher of Dunraven School and to Miss Crossfield, Lambeth BC appointee on ILEA. Yours faithfully".
Unhappily the facts stated in this letter were true. Subject to one point, one bad point in my judgment, it is admitted on behalf of Mr. Noble that the irregularity of which Mr. Wallman complains took place at the meeting on 22nd March. Faced with what they regarded and described as a "technical irregularity", ILEA decided to start all over again, and their Divisional Education Officer wrote to Mr. Noble on 17th June, as follows:
"Dear Mr. Noble, With reference to your application and interview for the post of Senior Master/Mistress at Dunraven School, I must inform you that there was a technical irregularity in procedure at the interview, and that as a consequence no appointment has been recommended.
"A new date for the appointment has been arranged on 6 July 1983 at 8.15 p.m. to which you and all the short-listed candidates are invited. I should be grateful if you could let me know as soon as possible if you are able to attend. If you have any query concerning this invitation, please feel free to contact me at this office".
Mr. Noble accepted the invitation, and at an interview on 6th July Mrs. Gadd, a senior teacher from another school, was recommended by the governors, Mr. Kazakos participating and voting, but on his undertaking not to apply for the post vacated by Mr. Noble. ILEA have not appointed her pending the court's determination of Mr. Noble's claim to have been validly appointed the first time, but have made temporary arrangements to reorganize the school staff and timetable meanwhile.
Miss Ede has been appointed head of business studies in succession to Mr. Noble. Miss Wynter has succeeded Miss Ede. Mrs. Bayliss, the second deputy head, has been granted sabbatical leave for a year, which has enabled both Mrs. Gadd and Mr. Noble to be designated as acting deputy head. Miss Conlon has been made acting third deputy head. If Mr. Noble's appointment to second master is declared invalid, it is anticipated though not certain, that Mr. Noble will remain an acting deputy head until Mrs. Bayliss' return at the end of the year. If she does not return, Mr. Noble could re-apply for her post; if she does, he will revert to his position of head of business studies and senior teacher, and ILEA will be left to make their peace with Miss Ede.
On 15th July the Chairman of the Governors wrote to ILEA's Divisional Education Officer:
"Dear Mr. Graveson,
Appointment of Second Master/Mistress at meetings on 22nd March and 6th July and the consequentials
At a Special Meeting of Governors held on 12th July, the following resolution was passed nem con.
'1. The Governors regret the circumstances which led to the selection meeting of 22nd March 1983 being declared null and void by the Authority because of a technical irregularity.
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