R (on the application of Paul Crawford) v The University of Newcastle Upon Tyne
| Jurisdiction | England & Wales |
| Judge | Andrew Grubb |
| Judgment Date | 16 April 2014 |
| Neutral Citation | [2014] EWHC 1197 (Admin) |
| Docket Number | Case No: CO/11758/2011 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 16 April 2014 |
[2014] EWHC 1197 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Andrew Grubb
Sitting as a Deputy Judge of the High Court
Case No: CO/11758/2011
Mr Anthony Speaight QC for the Claimant
Mr James Cornwell (instructed by Berrymans Lace Mawer) for the Defendant
Hearing date: 27 February 2014
The Deputy Judge:
Introduction
In a judgment handed down on 31 January 2014 I dismissed the Claimant's claim against the Defendant. The parties are unable to agree a costs order. The Defendant seeks payment of its costs and the Claimant seeks an Order of "no order as to costs".
The facts and my reasons for dismissing the claim are set out in my judgment in R(Crawford) v The University of Newcastle Upon Tyne [2014] EWHC 162 (Admin). I only set out in this judgment the facts as necessary to decide the costs issue.
The Facts
Between October 2005 and June 2011, the Claimant was registered at the University of Newcastle Upon Tyne to study for a Bachelor of Medicine and Bachelor of Surgery ("MBBS") degree. The Claimant completed stages 1, 2, 3 and 4 of that degree but in June 2010 he failed his final year (Stage 5) examinations. The Claimant repeated his final year and in June 2011 retook the Stage 5 examinations.
On 15 June 2011, the Claimant was informed by the Defendant that he had again failed his final Stage 5 examinations. On 27 June 2011, the Claimant appealed that decision under the University's Academic Appeals Procedure for Students. At the heart of the Claimant's appeal was the contention that the Defendant had not calculated his grade in relation to the "Clinical and Communication Skills" domain in the part of the Stage 5 examination process known as the "Multi-Station Objective Structured Long Examination Record" (MOSLER) in accordance with the University's MBBS Stage 5 Handbook for 2010/2011 ("MBBS Stage 5 Handbook"). The Claimant's appeal was rejected by the University's Appeal Adjudicator on 1 August 2011. On 25 August 2011, the Claimant sought a review of that decision by the Academic Registrar and on 2 September 2011 the Academic Registrar rejected that review.
Whilst pursuing the internal appeals process, on 13 August 2011 the Claimant made a complaint to the Office of the Independent Adjudicator for Higher Education ("OIA") established under the Higher Education Act 2004. In that complaint, the Claimant maintained his contention that the University had failed to follow the MBBS Stage 5 Handbook in calculating his grade for the "Clinical and Communication Skills" domain in the MOSLER. In addition, the Claimant argued that the University had failed to follow its appeals procedure and had acted unfairly by not disclosing to the Claimant a memorandum provided by the Chair of the Examination Board to the Appeal Adjudicator before he had reached his decision. On 11 November 2011, the OIA issued a preliminary decision rejecting the complaint.
On 2 December 2011 the Claimant wrote to the OIA stating that he intended to bring judicial review proceedings against the Defendant. As a consequence, under the OIA's rules the Claimant's complaint was terminated when he issued these judicial review proceedings on 2 December 2011.
On 1 March 2012, the Claimant was refused permission to bring judicial review by a Deputy High Court Judge considering the papers. The Claimant renewed his application for permission and, on 24 May 2012 at an oral hearing, John Randall QC (sitting as a Deputy High Court Judge) granted the Claimant permission.
At that hearing, there was some discussion concerning whether the judicial review proceedings could be stayed in order for the Claimant to continue his complaint to the OIA. Thereafter, on 2 July 2012 the judicial review proceedings were stayed on the Claimant's application without opposition from the Defendant. On 20 July 2012, the Claimant wrote to the OIA inviting them, as a consequence, to reopen his complaint which the OIA thereafter did.
On 28 January 2013, the OIA issued a final decision that the Claimant's complaint was not justified. Thereafter, the stay on these proceedings was lifted and the substantive hearing of the claim took place before me on 10 December 2013. My judgment, dismissing the Claimant's claim which relied both upon public law principles and breach of contract, was handed down on 31 January 2014.
The Parties' Contentions
Both parties have made extensive and detailed written and oral submissions on the costs issue. I received written skeleton arguments and heard submissions from both Mr Anthony Speaight QC on behalf of the Claimant and Mr James Cornwell on behalf of the Defendant at a hearing on 27 February 2014 during the course of which Mr Speaight QC referred me to a supplementary bundle of authorities not referred to in his skeleton argument. Following the hearing, on 11 March 2014 Mr Speaight QC wrote to the Court indicating that one of the cases to which he had referred – PGF II SA v OMFS Company 1 Limited [2012] EWHC 83 (TCC)— had, in fact, been appealed to the Court of Appeal (see [2003] EWCA Civ 1288; [2014] BLR 1). At the request of both parties, I allowed counsel further time to make any written submissions they wished in relation to that decision. I received supplementary representations from both Mr Speaight QC and Mr Cornwell. As a result of the latter's submissions, which also dealt with a decision raised in the course of the oral hearing — namely R (Cowl and Others) v Plymouth City Council [2001] EWCA Civ 1935; [2002] 1 WLR 803— Mr Speaight QC also provided a brief reply in relation to that decision. I am grateful to both Counsel for the assistance they have given me in deciding the issue of costs.
The Defendant argues that it was the successful party in these proceedings and is entitled to its costs in accordance with the general rule set out in CPR Part 44.2.
The Claimant argues that there are three reasons why the Court should depart from the general rule and make an order of 'no order as to costs'. First, the Defendant unreasonably failed to engage in alternative dispute resolution ("ADR"), in particular mediation when invited to do so by the Claimant. Secondly, it is said that the Defendant did not succeed on all the issues raised in the proceedings. Thirdly, the Defendant's own mistakes gave grounds for the claim in that the MBBS Stage 5 Handbook was unclear.
Both in the written submissions and in Counsel's oral submissions, the focus was upon the first basis upon which the Claimant sought an order of 'no order as to costs'.
CPR Part 44 .2
In relation to costs CPR Part 44.2 is, so far as relevant, in the following terms:
"44.2 (1) The court has discretion as to –
(a) whether costs are payable by one party to another;
(b) the amount of those costs; and
(c) when they are to be paid.
(2) If the court decides to make an order about costs –
(a) the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party; but
(b) the court may make a different order.
…
(4) In deciding what order (if any) to make about costs, the court must have regard to all the circumstances, including –
(a) the conduct of all the parties;
(b) whether a party has succeeded on part of his case, even if he has not been wholly successful; and
(c) any payment into court or admissible offer to settle made by a party which is drawn to the court's attention, and which is not an offer to which costs consequences under Part 36 apply.
(5) The conduct of the parties includes –
(a) conduct before, as well as during, the proceedings, and in particular the extent to which the parties followed the Practice Direction (Pre-Action Conduct) or any relevant pre-action protocol;
(b) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;
(c) the manner in which a party has pursued or defended his case or a particular allegation or issue;
(d) whether a claimant who has succeeded in his claim, in whole or in part, exaggerated his claim."
As CPR Part 44.2 makes clear, the general rule is that an unsuccessful party should pay the costs of the successful party, but the Court has a discretion to make a different order having regard to "all the circumstances" including the conduct of the parties before as well as during the proceedings.
Unreasonable Failure to Engage in ADR (Mediate)
As I have already indicated, this basis for departing from the general rule that the Defendant as a successful party should recover its costs was the central argument in both Mr Speaight QC's written and oral submissions.
The basis for the submissions arises in this way. The Claimant was granted permission to bring these proceedings on 24 May 2012. The following day, 25 May 2012, the Claimant wrote to the Defendant's solicitors, Berrymans Lace Mawer on a "without prejudice save as to costs" basis inviting the Defendant to attempt mediation of the dispute. The letter was in the following terms:
"Following the hearing yesterday, and the detailed judgment that followed, I am inviting your client, the University of Newcastle, to attempt to resolve our dispute by mediation.
For my part, I am willing to attend mediation under the auspices of any recognised provider of Alternative Dispute Resolution (ADR).
Look forward to hearing from you."
In response to that letter, the Defendant's solicitors replied to the Claimant in a letter dated 7...
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