Sebastian Cody v Remus White Ltd
| Jurisdiction | England & Wales |
| Judge | Peter Marquand |
| Judgment Date | 28 June 2021 |
| Neutral Citation | [2021] EWHC 1755 (QB) |
| Docket Number | Case No: QB-2019-001476 and QB-2019-001479 |
| Court | Queen's Bench Division |
[2021] EWHC 1755 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Peter Marquand
(Sitting as a Deputy High Court Judge)
Case No: QB-2019-001476 and QB-2019-001479
Sarah Steinhardt (instructed by Teacher Stern LLP) for the Claimants
Melissa Remus (in person)
Hearing dates: 15 th to 19 th March and 22 nd to 26 th March 2021
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
The hearing occupied 10 working days and was performed through Microsoft Teams. Ms Remus was assisted by her husband, Mr Joe Elliot, acting as her McKenzie friend. At the commencement of the hearing, I granted Mr Elliot a right of audience. Ms Remus and Mr Elliot had relatively recently suffered from Covid-19 and had ongoing symptoms, which necessitated frequent breaks. I am grateful to Mr Elliot for performing his role as a McKenzie friend appropriately and to Ms Steinhardt, as counsel for the six Claimants, for her assistance.
Mr Sebastian Cody and Mrs Annabel Cody are the parents of Rosa Cody. In this Judgment for convenience, I will refer to Mr and Mrs Cody as “the Codys” and Rosa Cody as “Rosa”. Mr Martin Vogel and Ms Carolyn Bonnyman are the parents of Adam Vogel. Again, I will refer to his parents as “the Vogels” and Adam Vogel as “Adam”. They are the Claimants in separate actions against Remus White Limited and Melissa Remus.
The claims brought by the Codys, Rosa, the Vogels and Adam concern Heathside school (“Heathside”), a private school. Remus White Ltd was the operating company of Heathside and Ms Remus was the proprietor and headteacher. Ms Remus was the majority shareholder of Remus White Ltd. Remus White Ltd went into administration and played no part in the hearing. A claim was brought in contract against Remus White Ltd and Ms Remus, but was not pursued by the Claimants. Solicitors were instructed by both Defendants initially and drafted the Defences that were served.
Broadly speaking, there are two sections to the claims. First, the circumstances in which the Vogels and then the Codys decided to send Adam and Rosa respectively to study for their GCSEs at Heathside. Secondly, the issues arising out of the quality of the education that Adam and Rosa received at Heathside.
It is alleged by the Codys, Rosa, the Vogels and Adam that in the pre-contractual discussions, Ms Remus made fraudulent representations concerning the ability of the school to deliver a GCSE course to Rosa and Adam. Alternatively, if those representations were not fraudulent, they were negligent. It is important to note at this point that in contrast to a criminal case of fraud, a civil claim does not require the Claimants to establish that Ms Remus was dishonest, as would be necessary in a criminal case. For that reason, I shall refer to this as a claim in deceit throughout the rest of this Judgment. It is also alleged by Rosa and Adam that there was educational negligence in the delivery of the GCSE course for them. Ms Remus, as headteacher and proprietor, it is further alleged is responsible for their lack of educational achievement as a result. Ms Remus denies all of the claims brought against her.
Background
Heathside school
Ms Remus founded Heathside in 1993 with her former business partner Jill White. Ms White left the school leaving Ms Remus as the sole proprietor and headteacher. The school is based in Hampstead, north London, and has a number of locations within the area. At the relevant time, the school was made up of three parts: the junior school; the middle school and the high school. The school had an advisory board, which comprised Ms Charu Kashyap and Ms Judith Charlesworth. As the advisory board their role was to investigate complaints against Ms Remus. They also provided consultancy services to the school.
As required by the Education and Skills Act 2008 (“the Act”), Heathside Preparatory School, as it was then known, was registered with the Department for Education (DfE). Over time, the school had increased the age range of the children who had been taught there. Part of the information that must be provided on registration is the age range of children taught at a school. Any increase in that age range (and certain other specified changes) is a “material change” that must be reported to the DfE for approval prior to that change taking place (section 101 of the Act). As a result of a request for a material change the DfE may arrange an inspection of the school by the Office for Standards in Education (“Ofsted”) before giving any such approval.
All private schools must also comply with the “Independent Educational Institution Standards” (“the Standards”) which are set out in the “Education (Independent School Standards) Regulations 2014/3283” (“the Regulations”). I will return to the detail of some of the Standards further on in this Judgment. Ofsted was responsible for inspecting Heathside and judging compliance with the Standards. Ofsted prepares and publishes reports of its inspections, which are publicly available.
School years, GCSE and teachers
For the purposes of determining when a child starts school, their first year will be the year in which the child turns five during the year beginning 1 September and ending 31 August. The relevant information for this case is set out in the table below:
| Usual age (in years) of child within year | The Year | Key Stage |
| 11 – 12 | 7 | 3 |
| 12 – 13 | 8 | 3 |
| 13 – 14 | 9 | 3 |
| 14 – 15 | 10 | 4 |
| 15 – 16 | 11 | 4 |
Therefore, pupils who are in year 9 at a school will be between 13 and 14 years of age. However, there is no reason why a child who is older should not remain within year, if that is necessary. Key Stages refer to particular levels of teaching and Key Stage 4 is the relevant two-year course culminating in the GCSE examinations at the end of year 11. However, there is no reason why GCSEs should not be prepared for and taken in an earlier year group, if the pupil(s) is/are capable and prepared.
A number of subjects may be taken at GCSE level, but some are compulsory. English (language and literature), mathematics and science are compulsory. Science GCSE is available as a double course or triple course. The science subjects are chemistry, physics and biology.
The GCSE syllabuses are set by a number of examination boards. A school may choose one or a number of examination boards to follow for the different GCSE subjects.
To teach in a state school in England, a person must have a degree and have obtained a qualification as a teacher. In a private school there is no legal obligation to have obtained such a teaching qualification.
Authorised age range at Heathside
An Ofsted inspection report dated 3 July 2014 shows that the permitted age range at that time was from 2 years up to 11 years. An email from the DfE dated 7 July 2015 records the approval of the material change to teaching pupils aged 12 years. In a September 2017 Ofsted inspection report the permitted age range was stated as 2 years to 14 years. However, an email dated 20 December 2017 to which I was not referred, is from Ms Remus to the DfE. The relevant parts of that email are as follows:
“I am writing to you further to our recent school and boarding Ofsted inspections that dealt with the material change applications that we had made earlier in the year. Our material change applications included the following changes:
increase of the total pupil numbers of the school to 600
change of statutory highest pupil age from 12 to 14 (i.e., year 9)
commence boarding in January 2018
At the school's Ofsted inspection that took place on the 19 – 21 September 2017, the lead education inspector (Avtar Sherri) confirmed approval of the material change request for increase of capacity and age as requested. We also had a boarding registration visit by Ofsted on 1 st Dec 2017 by Lee Kerwin (Social Care Regulator Inspector) whereby he has made a recommendation for the boarding school to be approved as well. We have been advised that the DfE will send us written confirmation for this…
Also, we are unable to submit our annual census return with the new changes (to age and numbers) as the website does not allow us to amend the field to enter information about the school in line with the new changes. I would be grateful if you could help with that…”
It would appear that the report of the Ofsted inspection that took place on 19 – 21 September 2017 incorrectly referred to the age range of pupils permitted at the school, at the time of the inspection, to be up to 14 years. Presumably, because the inspector had supported that change and/or it had been approved by the DfE by the time Ofsted's report was issued or s/he assumed it would be approved. The precise date of that permission being given by DfE is not apparent from the evidence. During the relevant period covered by this Judgment the upper limit of the approved age at Heathside remained at 14 years.
The key teaching staff
In order to understand the background that follows, I have set out below the names and roles of the teaching staff who appear frequently within this Judgment. Not all of the people identified gave evidence or provided a witness statement and those...
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