The Governing Body of the London Oratory School v The Schools Adjudicator and Another The Secretary of State for Education (Interested Parties)
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr Justice Cobb |
| Judgment Date | 29 April 2015 |
| Neutral Citation | [2015] EWHC 1155 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4693/2014 |
| Date | 29 April 2015 |
[2015] EWHC 1155 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Cobb
Case No: CO/4693/2014
The Queen On the application of
and
and
[No.2] (Remittal and Costs)
Mr. Charles Béar QC & Mr. Julian Milford (instructed by Payne Hicks Beach) for the Claimants
Mr. James Goudie QC & Ms Fiona Scolding (instructed by Government Legal Department) for the Defendant
The First Interested Party was not represented
Mr. Richard Moules (instructed by Government Legal Department) for the Second Interested Party
Hearing dates: 17 April 2014
This judgment addresses two important issues which arise from the judgment delivered in relation to the substance of the Claim. For an understanding of the background, see R (on the application of The Governing Body of the Oratory School) v The Schools Adjudicator & others [2015] EWHC 1012 (Admin). I refer in this judgment to the Claimant as "the School" and the Defendant, "the Adjudicator".
Those two issues are:
i) Whether the issue of the School's 'regard' to the published Guidance from the Archdiocese of Westminster (the "Diocesan Guidance"), in the context of paragraph 1.38 of the Department for Education's School Admissions Code (2012) ("the Admissions Code"), should be remitted for re-consideration and determination by a newly appointed School's Adjudicator (I refer to this, by way of shorthand, as "the Diocesan Guidance issue");
ii) Costs, as between the School and the Adjudicator.
Having received written and oral submissions on those points on 17 April 2015, I gave my decision at the conclusion of the hearing, as follows:
i) The Diocesan Guidance issue should be remitted to a newly appointed Adjudicator for re-consideration and determination, with a direction that the Adjudicator reconsider the matter and reach a decision in accordance with my judgment ( [2015] EWHC 1012 (Admin)), specifically having regard to paragraphs [58]–[61] (i.e. the proper approach to the phrase "have regard" in paragraph 1.38 of the Admissions Code);
ii) The Adjudicator shall pay 80% of the School's assessed costs, with a payment on account (by 8 May 2015) in the sum of £60,000.
Remittal of the issue to a new Adjudicator
Both under statute (see section 31(5) Senior Courts Act 1981) and under the Civil Procedure Rules 1998 (see CPR 54.19(1) and (2)) I am vested with a wide discretion when making a quashing order to remit the issue to the decision-maker, with a direction that the decision-maker "reconsider the matter and reach a decision in accordance with" my judgment.
The School opposes remittal of any of the six aspects of the Adjudicator's determination which I have quashed. Of those six aspects, the Adjudicator seeks remittal of only one, namely the Diocesan Guidance issue.
Mr Béar QC, on behalf of the School, in summary contends:
i) That while this Adjudicator had determined the Diocesan Guidance issue against the School, the previously appointed adjudicator (Mr Lennard Jones) had reached the opposite conclusion, favourable to the School. The outcome of the earlier investigation (in 2013) should be taken into account in directing no further consideration of the issue;
ii) That the Adjudicator has no statutory authority to investigate the issue now as the British Humanist Association's complaint (see [37–38] of the earlier judgment) has been disposed of by my substantive ruling;
iii) That it would be unreasonable to remit the issue now, having regard to the delay in resolving this particular complaint which has been investigated by the Office of the Schools Adjudicator unsuccessfully twice; in this respect, he relies on R v Chief Constable of the Merseyside Policeex parte Merrill [1989] 1 WLR 1077 at 1088B-F, and R(Haracoglou) v Department for Education & Skills [2002] ELR 177 at [32], to which I have had regard;
iv) That there is no need to remit the issue for further determination as the outcome of any further determination is inevitable; he contends that the School is able to demonstrate that it has had regard to the Diocesan Guidance and has clear and proper reason for departing from it; there is therefore only one decision reasonably open to the Adjudicator;
v) That I could/should adjourn this question for both parties to file further evidence on the question of whether this is an 'only one decision reasonably open' case.
Mr. Goudie QC urged me to remit the issue, exercising my general discretion referred to above. He submitted that this would be the 'natural' course to take, advocating that there would be a real advantage for the School, its candidates and parents in there being clarity on this issue. He contended that there were two situations in which it would not be appropriate to remit a quashed decision in these circumstances: (i) if the outcome would be inevitable (identifying a high hurdle on the claimant to demonstrate that this is so), and (ii) if it would cause significant prejudice to the claimant. He contended that this situation fell into neither category.
I outlined my reasons at the hearing for concluding that it would be right to remit the case for further determination. I set out my more detailed reasoning below.
First, I do not consider that it would be right to substitute my own decision; Parliament has entrusted decision-making on this issue to the School's Adjudicator; moreover, "any fresh decision would be on the material then available to him, which might not be the same as the material at the time when the original flawed decision was made" see R(C) v Chief Constable of Manchester [2011] EWCA Civ 175 at [16]. No party in fact asks me to do so.
Secondly, I am satisfied that the Adjudicator has a continuing power to investigate the issue, having regard to the provisions of section 88I(5) of the School Standards and Framework Act 1998 (viz: "(a) the adjudicator may consider the admission arrangements, and (b) if the adjudicator considers the arrangements under paragraph (a), the adjudicator must decide whether they conform with those requirements and, if not, in what respect they do not": see also [19] of [2015] EWHC 1012 (Admin)). That power endures until the issue has been finally resolved; it has not been so resolved.
Thirdly, I am far from sure that there is only one outcome to any fresh determination. While the School has indicated its clear wish to depart from the Diocesan Guidance in order to maintain and enhance its pan-London mission and particular Catholic ethos, and to preserve therefore its distinctive place within the dioceses in the delivery of state-funded Catholic education, it will be a matter for the Adjudicator to decide whether that represents a 'clear and proper reason' for departing from the Diocesan Guidance in all, some, or indeed any, respects. While the Diocesan Guidance offers a high degree of flexibility in relation to schools' admissions criteria, as I indicated in my earlier judgment (see [60](ii) [2015] EWHC 2012 (Admin)) a Governing Body may have more difficulty in demonstrating a clear and proper reason for departing from the Guidance if the proposed faith-based criteria are expressly forbidden by it.
I am not persuaded (contrary to Mr. Béar's submission at [6](i) above) that I should take any account of the conclusions of Mr Lennard Jones, the previous adjudicator, whose determination in other respects (it was agreed) was demonstrably flawed (see [39] of [2015] EWHC 1012 (Admin)). Moreover, when taken by Mr. Béar...
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