R 'S' v The General Teaching Council for England Essex County Council (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Foskett |
| Judgment Date | 13 September 2013 |
| Neutral Citation | [2013] EWHC 2779 (Admin) |
| Docket Number | Case No: CO/4675/2011 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 13 September 2013 |
[2013] EWHC 2779 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Foskett
Case No: CO/4675/2011
The Claimant in person
Rory Dunlop (instructed by The Treasury Solicitor) for the Defendant
Hearing date: 4 July 2013
RULING ON REQUEST NOT TO HAND DOWN JUDGMENT
I heard this substantive application for judicial review on 4 July. Langstaff J gave the Claimant permission to apply for judicial review in relation to the principal issue and Lindblom J, on an oral renewal, granted her permission on the second issue. The Claimant acted in person before me as she had done before Langstaff J and Lindblom J although she had the benefit of being able to rely upon a Skeleton Argument prepared in support of her application by Mr Thomas Amraoui. That Skeleton Argument was of value to me in my appraisal of her case.
The case raised issues concerning the interpretation of the Education (Induction Arrangements for School Teachers) (England) Regulations 2008, regulations under which an appeal may be pursued by a newly qualified teacher (an 'NQT') against a decision of a local education authority ('the appropriate body') that his or her compulsory induction period has not been completed satisfactorily. It raised issues concerning the extent to which it is lawful and/or appropriate for matters occurring outside the 3-month period normally constituting an induction period to be taken into account in deciding whether the NQT has or has not completed that period satisfactorily. An issue that arose indirectly was the extent to which it was possible for a local education authority to agree with an NQT that an uncompleted induction period could effectively be disregarded and a fresh induction period commenced: it was an issue raised on the Claimant's behalf by the Union representative who represented her before the GTCE's appeal panel (see paragraph 3 below), but not raised specifically in the grounds for judicial review. Since it was common ground before the appeal panel that there had been such an agreement in this case, it seemed to me that I should consider the appeal body's view on it particularly as the Claimant was acting in person.
At the time of the material events in the case the General Teaching Council for England was the appellate body responsible for hearing appeals of the nature indicated above. Many of its functions, including the functions relevant to this case, were taken over as from 1 April 2012 by the Secretary of State for Education who defended the claim. Where I refer to 'the Defendant' I refer to the Secretary of State.
I reserved judgment. By 16 July the draft judgment was ready for sending to the parties for typographical corrections. I need say no more for present purposes other than that it was to the effect that the Claimant should succeed and the matter should be remitted to the Defendant for reconsideration.
Because of concern that a litigant in person may not understand the obligations of confidentiality involved at this stage in the process of promulgating a judgment, a practice commonly adopted is not to send out the judgment for correction in this fashion, but to hand it down in draft form "subject to editorial corrections". Any revisions can then be incorporated before the final approved version is handed down. However, having seen and heard the Claimant in person, I assessed her as someone who could be trusted to treat the draft judgment confidentially. Accordingly, I decided that it could be disseminated in the usual way. On my instruction, my Clerk said this in the covering e-mail on 16 July:
"Attached is the draft judgment in this case. Mr Dunlop will understand the terms upon which it is sent. Miss [S], may I explain that the purpose of sending it to you is for you to check to see if there are any typographical or other obvious errors that the Judge ought to consider before handing down the final form of the judgment publicly? The draft judgment is strictly confidential until then and must not be shown to, or discussed with, anyone else. It would be a contempt of court to do so. Once the judgment is handed down formally (which the Judge will hope to do on Friday of this week or Monday of next week), then it will be open to you to discuss it openly. You may be well advised then to discuss its implications with your Union and/or any legal advisers to whom you have access.
Can you both let me have any proposed corrections (on a separate Word document) by 4 pm on Thursday, please? I will send you both the final form of the handed down judgment when it has been handed down.
If there are any consequential applications (including any application for costs on your part, Miss [S]), they should be put into writing and sent to me within 14 days of the handing down of the judgment and the judge will consider them on paper."
Mr Dunlop sent an e-mail to my Clerk at 16.37 that day (copying it to the Claimant) in the following terms:
"I would be grateful if the judge could delay the handing down of judgment (even if only to Monday) to allow some time for the parties to consider the possibility of settlement. It may assist, for those purposes, if judgment has not yet been handed down."
On the following day at 08.55 the Claimant sent an e-mail to my Clerk (copying it to Mr Dunlop) in the following terms:
"Without discussing the draft document, would it be ok for me to discuss settlement options with other people e.g. friends, union and teaching agency?"
In the light of that e-mail and the e-mail from Mr Dunlop the previous evening, my Clerk replied to the Claimant, copying in Mr Dunlop, on my behalf in the following terms:
"The Judge understands that both you and Mr Dunlop would prefer the hand-down of the judgment to be delayed until you have had an opportunity to discuss settlement. He is happy to accommodate this for a few days, but even if settlement is achieved it would be his intention that the judgment is delivered. I will not ask the Listing Office to list the case for a hand-down of the judgment until I have heard from both of you about the situation concerning settlement. I would be grateful, please, if I could hear from you both by 4 pm on Friday about the position.
So far as discussing matters with others is concerned, the Judge is concerned that you may inadvertently breach the confidentiality provision. However, he does not wish you to be disadvantaged in any settlement discussions. Since you acted in person you do not, strictly speaking, have a "legal representative" with whom to discuss matters. The Judge is, however, content for you to speak to your Union representative and a senior person at your teaching agency (or any solicitor with whom you have had dealings) – and you may show them the draft judgment (though not provide them with a copy) – provided they are told in advance that they must not communicate its contents to anyone else before it is handed down.
Would you please confirm that you will deal with matters in that way? If so, we will deal with things as I have set out above."
At that stage it will be apparent that I was under the impression that I was merely being asked to delay handing down the judgment whilst discussions took place, not that I should not hand it down at all.
That position appeared to have changed by the time I saw an e-mail from the Claimant to the solicitor for the National College for Teaching and Leadership (sent at 08:48 on Friday, 19 July) which contained the following paragraph:
"The main purpose behind this letter is to see whether you would be amenable to reaching a settlement of this case. These proceedings have been going on for a very long period of time and have caused me a great deal of stress, and I believe that it would be in the interests of all parties to come to some sort of amicable agreement that allows both parties to avoid the need for a judgement to be put down." (My emphasis.)
On Monday, 22 July, Mr Dunlop sent an e-mail to my Clerk in the following terms:
"Settlement negotiations are ongoing. We have made a proposal to Ms [S] that would include an order that the judgment should not be handed down and the draft should not be disclosed. Ms [S] would like more time to consider that proposal. Both parties would be grateful if the handing down of the judgment could be delayed for that purpose until at least the end of next week."
Mr Dunlop has confirmed subsequently that it was the Defendant that first suggested that a settlement might be achieved if a condition of the settlement was that the judgment would not be handed down.
By Friday, 26 July, Mr Dunlop told my Clerk that the settlement that had by then been concluded in the form of a proposed consent order was "conditional on judgment not being handed down." He said this in an e-mail: "If the judge chooses to hand down judgment, we will need to reconsider the settlement." The proposed consent order was in the following terms:
1. The decision of the GTCE dated … is quashed.
2. The matter is to be remitted back to the Secretary of State who will extend the Claimant's induction period so as to give the Claimant THREE more terms.
3. If and when the appropriate body and/or Secretary of State comes to consider the Claimant's performance during her induction period, they shall not have regard to her performance at [X School] in the academic year 2008/2009 but they shall be entitled to have regard to her performance at [Y School] in the academic year 2009/2010.
4. There be no order as to costs.
5. The draft judgment served on the parties will not be handed down or disclosed to any person...
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