Robert MacCallum v Secretary of State for Education

Hearing date: 19 December 2023

Approved Judgment

This judgment was handed down remotely at 10.30 am on 24 January 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

Introduction

The Appellant applies for an extension of time to “until after 16 January 2023” in which to file an appeal against the terms upon which the Respondent issued a prohibition order against him. The Respondent adopted a neutral position to this application.

On 11 November 2022, a Professional Conduct panel of the Teaching Regulation Agency (“the Panel”) found allegations proved which amounted to unacceptable professional conduct by the Appellant which was likely to bring the profession into disrepute. The Panel recommended that he should be issued with a prohibition order, which prohibits him from teaching indefinitely, and that it should be subject to a review in 2 years' time. The Respondent decided to impose a prohibition order, with effect from 17 November 2022, to be subject to a review not before 5 years from the date of the order.

The Respondent's decision was communicated to the Appellant by a letter from the Teaching Regulation Agency dated 15 November 2022. The letter stated:

“In accordance with the Teachers Disciplinary (England) Regulations 2012, you have the right to appeal against the prohibition order to the Kings Bench Division of the High Court within 28 calendar days of the date on which the order is served upon you. You must submit any appeal by 15 December 2022.

The contact details of the High Court are as follows:

Administrative Court Office

Royal Courts of Justice

Strand

London WC2A 2LL

Telephone: 020 7947 6000”

The Appellant seeks to appeal against the Respondent's decision to increase the length of time before he can apply for a review from 2 years to 5 years on the grounds that the Respondent:

i) wrongly relied on Former Pupil A's description of her relationship with the Appellant having created a ‘situation of emotional dependency’ when the Panel had found allegations against the Appellant between 2010–2014 unproven;

ii) gave insufficient weight to the fact five years had elapsed since Former Pupil A had been a pupil at the school;

iii) gave no or insufficient consideration to the Panel's findings on serious sexual misconduct;

iv) gave insufficiently reasoned justification for altering the factual conclusion of the panel that there was no continuing risk to the wellbeing of pupils;

v) placed insufficient weight on the Appellant's contribution to the profession;

vi) in all the circumstances was disproportionately harsh or excessive.

History

The Appellant received the Prohibition Notice on 15 November 2022. His employer (Stockport County Football Club) contacted JMW Solicitors (“JMW”) on his behalf and sent them initial instructions on 15 November 2022. The Appellant had a conference with JMW via TEAMS on 17 November 2022. Immediately after the conference, the Appellant formally retained Ian Lewis, regulatory partner at JMW to represent him in the appeal. Counsel, Mr Harry Bentley, was instructed and a conference took place on 8 December 2022. The Appellant and his legal representatives were aware throughout this period that the deadline for lodging an appeal was 15 December 2022, as stated in the Respondent's letter of 15 November 2022.

According to the Appellant's witness statement, he regularly checked on the progress of the appeal and its preparation. He did everything that was asked of him by his solicitors. He was notified by JMW on 14 December 2022 that the appeal had been lodged. JMW did not inform the Appellant that the appeal had not been lodged within the time limit until 15 August 2023.

Mr Lewis has made a witness statement. Ms Kaur and Ms Windsor, who were paralegals at JMW at the time, have also made witness statements. Ms Ogunbo (nee Nolan), who was then a solicitor at JMW, has also made a witness statement. I have pieced together a history of events based on their witness statements and exhibits, and the evidence summarised in the revised Appellant's Notice. There are gaps and inconsistencies in the evidence.

Mr Lewis states that on 13 December 2022 he instructed Ms Windsor to file the appeal at the Court by 14 December 2022. He therefore left it very late. Ms Windsor posted the Appellant's Notice to the Administrative Court Office (“the ACO”) and the Respondent by special delivery on 14 December 2022. In my view, it was very risky to send the documents by post so close to the deadline. Furthermore, there was a royal mail strike that week, so mail was delayed.

Mr Lewis explains that he and Ms Windsor were both unsure of the procedure for filing. In particular, Mr Lewis thought that the Appellant's Notice had to be sealed but was not sure how that would be achieved. He advised Ms Windsor to consult Mr Bentley on 14 December 2022. Mr Bentley sent Ms Windsor guidance on how to use CE-File, and advised her to “submit the relevant form at the RCJ, pay the relevant fee, and get it stamped” by the deadline.

Ms Windsor was busy with other matters on the following day, 15 December 2022, and so she asked another paralegal (Ms Kaur) to file the appeal by CE-File, which she duly did. It appears that she filed it in the Kings Bench Division. The appeal was rejected in an automated response which stated that it had been sent to the wrong Court.

Ms Kaur and Ms Windsor communicated with the Court by email and by telephone on 15 and 16 December 2022. They were advised by email that the Administrative Court does not have a CE-File facility and that it had no record of the appeal. The email gave advice on sending the documents via email or the Document Upload Centre (“the DUC”).

Ms Kaur sent the Appellant's Notice and supporting documents by email to the ACO at 1649 on 15 December 2022. Any document filed by fax or email after 1600 will be treated as filed on the next day on which the court office is open: see CPR PD5B 4.2. But even if the documents had been emailed before 1600, they would not have been accepted for filing because the application was defective, for the reasons set out in paragraph 15 of my judgment below. In particular, the court fee had not been paid as the Court had not been provided with JMW's account details.

Ms Windsor emailed the ACO at 15.48 on 16 December 2022, attaching the Appellant's Notice and supporting appeal documents. She also referred to the sets of appeal documents which had been sent by post and via CE-File. She asked the ACO to confirm that the appeal had been filed.

Nothing further was done until early January 2023. Ms Ogunbo (nee Nolan) reviewed the file and found that the appeal had not been accepted, processed or issued. There was no sealed appeal and no court reference number. Ms Ogunbo contacted the ACO who gave advice by email on how to remedy the defects in the appeal documents and how to file the appeal. They also sent a copy of the Administrative Court Office guidance.

In an internal email, Ms Ogunbo explained that the appeal was defective for a number of reasons, including the following:

i) It was not accompanied by details of JMW account number so no fee had been paid;

ii) The name and details of the Respondent were incorrect (it should have been the Secretary of State not the Teachering Regulation Agency);

iii) The date of the decision being appealed was incorrect;

iv) A copy of the prohibition order was not submitted;

v) The Appellant's Notice did not specify the part of the prohibition order which was being appealed;

vi) ACO guidance on filing documents was not complied with.

Ms Ogunbo re-drafted the Appellant's Notice and corrected the errors. She sent Counsel's skeleton argument, and applied for an extension of time for filing the appeal.

On 12 January 2023, JMW filed a revised Appellant's Notice at the ACO, including an application for an extension of time, and with grounds of appeal. The fee was paid. Although the email is timed just after 1600, and so would ordinarily be deemed to have been received on the following day, it has been recorded in the ACO as filed on 12 January 2023, not 13 January, 2023. The date in the court records is conclusive.

The ACO issued the appeal on 16 January 2023, and sent a sealed Appellant's Notice to JMW for them to serve. According to the certificate of service filed by JMW, the appeal documents were served on the Respondent's solicitors, the GLD, after working hours (1839) on 16 January 2023, and so service was effected on 17 January 2023.

The Appellant instructed new solicitors and they filed an application for an extension of time, which was sealed on 27 November 2023.

Statutory framework

Section 141B of the Education Act 2002 provides for the investigation of disciplinary cases by the Secretary of State for Education:

“(1) The Secretary of State may investigate a case where an allegation is referred to the Secretary of State that a person to whom this section applies—

(a) may be guilty of unacceptable professional conduct or conduct that may bring the teaching profession into disrepute, or

(b) has been convicted (at any time) of a relevant offence.

(2) Where the Secretary of State finds on an investigation of a case under subsection (1) that there is a case to answer, the Secretary of State must decide whether to make a prohibition order in respect of the...