The Queen (on the application of Wanjiru Karanja) v University of the West of Scotland
| Jurisdiction | England & Wales |
| Judge | Michael Ford |
| Judgment Date | 23 June 2022 |
| Neutral Citation | [2022] EWHC 1520 (Admin) |
| Docket Number | Case No: CO/4095/2021 |
| Court | Queen's Bench Division (Administrative Court) |
[2022] EWHC 1520 (Admin)
Michael Ford QC SITTING AS A DEPUTY HIGH COURT JUDGE
Case No: CO/4095/2021
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Ollie Persey (instructed by Falcon Solicitors) for the Claimant
Jennifer Thelen (instructed by Clyde & Co) for the Defendant
Hearing date: 25 May
Approved Judgment
Michael Ford QC, sitting as a Deputy High Court Judge:
The Claimant brought judicial review proceedings in which she challenged the decision of the Defendant dated 28 September 2021, dismissing her appeal against the decision that she was to withdraw from the Defendant's Doctor of Business Administration (“DBA”) Programme.
In an order dated 7 March the court (Jay J), acting of its own motion, listed the case for an oral hearing to decide two issues: (i) the question of the service of the claim form (and any consequential need for an extension of time); and (ii) jurisdiction (on the basis that the Scottish courts might have jurisdiction to hear any claim). It is those issues to which this judgment is directed.
There were three applications before me at the hearing.
(1) An application dated 11 May 2022 in which the Claimant sought an extension of time for service of the claim form, pursuant to CPR 3.1(2)(a).
(2) An application dated 18 May 2022, in which the Claimant sought permission to adduce a witness statement from herself in connection with the question of jurisdiction.
(3) An application from the Defendant, sealed on 12 May 2022, in which it applied to set aside the claim form for late service and on the basis that the matter lay within the jurisdiction of the Scottish courts.
The Claimant was represented by Mr Persey and the Defendant by Ms Thelen. I am grateful to both counsel for their clear and focussed submissions.
There was an agreed, if somewhat disorganised, bundle of documents and an agreed bundle of authorities. The material facts were not in dispute. In the absence of any objection from Ms Thelen, I decided to permit the Claimant to rely on her witness statement dated 18 May 2022, relevant to both the service and jurisdiction questions.
Background Facts
The background to the judicial review application, and the alleged facts on which it relies, are set out in the statement of facts and grounds attached to the claim form. In short, the Claimant, who is a Kenyan national, enrolled on the Defendant's DBA programme and commenced study on it in March 2018. As a result of attending that programme, she obtained leave to remain in the UK as a “Tier 4” student.
The Defendant is a university and a registered Scottish charity with headquarters in Paisley, Scotland. It also has a campus in London, at 235 Southwark Bridge Road. The Claimant's unconditional offer of enrolment, set out in an e-mail dated 30 January 2018, gave London as her campus and she attended classes there. The relevant terms and conditions for her enrolment, which her offer e-mail said she was to ensure she had read, stated that by enrolling she agreed to be bound by the terms. They went on to state:
“By accepting our offer of admission you agree that the Scottish Courts will have exclusive jurisdiction to deal with any proceedings and that these Terms and any contract of which they form part will be governed by and interpreted in accordance with the law of Scotland.”
Subsequent iterations of the terms and conditions were similar. Those for enrolment in 2019/20 and 2020/21 said, for example, that “These Terms will be governed by the laws of Scotland and any dispute between you and us [the Defendant] will be dealt with by the Scottish Courts”.
In July 2021, the Defendant gave notice to withdraw the Claimant from the DBA course due to, it was said, inadequate progress. The Claimant appealed that decision to the Defendant's Senate Appeals Committee and the decision which is the subject of this challenge was made following a meeting which took place remotely on 27 September 2021. The members of that Committee are all based in Scotland. In a decision set out in an e-mail to the Claimant dated 28 September 2021, the Committee informed her that it had unanimously decided that her appeal should not be upheld. The Claimant subsequently received, according to her claim form, an e-mail dated 12 October 2021 from the Defendant saying she had been given a fail. A complaint to the Scottish Public Service Ombudsman could not be investigated because, according to the Ombudsman, the Claimant was already pursuing legal action.
The factual background relevant to service of the claim form is not in dispute. The communications between the Claimant's and Defendant's solicitors took place exclusively in writing.
On 29 October Mr Sampson, the Claimant's solicitor and who is also a member of the church which she attends, e-mailed the Defendant at the address legal@uws.ac.uk, copied to the e-mail address of Ms Emma Cuckow, the Defendant's Head of Legal, to inform them that the Claimant had instructed him to lodge an application for judicial review.
On 11 November Mr Sampson sent a further e-mail to the same two e-mail addresses, chasing up a response and saying that unless a reply was received by 12 November, a claim for judicial review would be lodged. In her reply on the same day, Ms Cuckow said that she had passed the matter to the Defendant's insurance team and would forward the latest e-mail to them.
On 15 November Mr Sampson sent a further chasing e-mail to Ms Cuckow, saying he still had not received a response. In her reply of the same day, Ms Cuckow said that the matter had been passed to “our insurance colleagues to progress. The best contact point for you going forward would be my colleague Jacqueline Thomson”, whose e-mail address she supplied. (It seems that, in response to an e-mail from Mr Sampson of 16 November, in an e-mail of 18 November Ms Thomson informed Mr Sampson that due process had been followed and the case had been reviewed by the Senate Appeals Committee, implying there were no grounds for challenge.)
On 30 November the Claimant's solicitor lodged the application for judicial review — the claim form and accompanying documents — in person at the Administrative Court. He left it in the Court's drop box because the office was closed. An unsealed claim form and the supporting documents were sent to the Defendant at 235 Southwark Bridge Road, the Defendant's London campus, by special delivery that day.
On 30 November, as explained in his e-mail to the Administrative Court of 12 December, Mr Sampson travelled to Dubai, returning to the office on 10 December.
The sealed judicial review application was issued by the Court on 1 December. A letter of that date from the Court Manager informed the Claimant's solicitors that the claim had been issued that day and had to be served on the Defendant “within 7 days of the date of this letter and a Certificate of Service lodged with the Court. Failure to comply with this requirement may result in the file in these proceedings being closed”.
According to Mr Sampson's e-mail to the Court office of 12 December, the letter of 1 December from the Court was not received at his office until 6 December 2021. The e-mail also explained that on his return from Dubai on 10 December, he spoke to someone in the Administrative Court who told him that service of the unsealed claim form was not in compliance with the rules and he should immediately serve the court's letter of 1 December on the Defendant by e-mail.
At 13:36 on 10 December Mr Sampson sent an e-mail to legal@uws.ac.uk alone — and not to the e-mail address of Jacqueline Thomson as Ms Cuckow had suggested or to the insurers — attaching a copy of the sealed claim form, the accompanying documents, and the letter from the Administrative Court of 1 December. Ms Cuckow responded at 17:29 that evening, saying:
“this matter has been passed to our insurers to deal with and Jacqueline Thomson is the internal contact. I will send your recent correspondence on to her but can you please update your records with the correct e-mail address as set out in my e-mail of the 10 th so Ms Thomson can ensure things are dealt with promptly.”
On 12 December Mr Sampson sent an e-mail to the Court office, to which I have already referred, in which he explained why the claim form had not been lodged earlier, enclosing a certificate of service (Form N215) giving the date and time of service as 10 December at 13:28, apologising for the delay in returning the form, explaining he had been away and asking that the delayed filing was accepted by the court. He also contended the claim should be heard in the English courts.
On 7 January the Defendant's solicitors wrote to the court, copied to Mr Sampson, contending that the service on 10 December was late and that e-mail service was ineffective because it was not in accordance with the rules. The Claimant's solicitors responded on 28 January 2022, stating it was not just to strike out the claim owing to what was described as a “technical breach”. The Defendant's solicitors subsequently provided fuller details of why they contended service was invalid and the English courts lacked jurisdiction in a letter of 3 February.
Service
CPR 54.7 requires that a claim form must be served on the defendant within seven days after the date of issue. It is common ground that this rule requires service of the sealed claim form: see Ideal Shopping Direct Ltd v Mastercard Incorporated [2022] EWCA Civ 14 per Sir Julian Flaux at §§137–8. Service of an unsealed claim form is not a mere procedural irregularity in the proceedings because, until the claim form is served, there are no extant...
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