R (E) v JFS Governing Body

JurisdictionEngland & Wales
CourtSupreme Court
JudgeLORD RODGER,LORD BROWN,LORD CLARKE,LADY HALE,LORD HOPE,LORD MANCE,LORD KERR,LORD PHILLIPS,LORD WALKER
Judgment Date16 December 2009
Neutral Citation[2009] UKSC 15,[2009] UKSC 1

[2009] UKSC 1

THE SUPREME COURT

MICHAELMAS TERM

On appeal from: [2009] EWCA Civ 626

[2009] EWCA Civ 681

before

Lord Hope, Deputy President

Lady Hale

Lord Brown

R (on the application of E)
(Respondent)
and
Governing Body of JFS and the Admissions Appeal Panel of JFS
(Appellants)

and others

R (on the application of E)
(Respondent)
and
Governing Body of JFS and the Admissions Appeal Panel of JFS (United Synagogue)

and others

(Appellants)

Appellant (United Synagogue)

Ben Jaffey

Christopher McCrudden

(Instructed by Farrer & Co

Respondent (E)

Dinah Rose QC

Helen Mountfield

(Instructed by Bindmans LLP)

Appellant (Governing Body of JFS and Admissions)

Lord Pannick QC

Peter Oldham

(Instructed by Stone King Sewell LLP)

Appellant (Legal Services Commission)

David Hart QC

Sarah Lambert

(Instructed by Legal Services Commission)

LORD HOPE, DEPUTY PRESIDENT
1

This is a procedural application under rule 30 of the Supreme Court Rules 2009 (SI 2009/1603). The respondent (E) seeks an order that, whatever the outcome of the appeal, the appellants (JFS and the United Synagogue) shall not be entitled to seek the payment of any costs from himself or from the Legal Services Commission. Having heard argument at its first sitting on 1 October 2009, the Court decided to refuse E's application for a protective costs order for reasons to be given later. The following are our reasons for this decision.

Background

2

JFS is a voluntary aided maintained comprehensive school in the London Borough of Brent. The first and second appellants are the Governing Body of JFS ("the Governing Body") and its independent admission appeal panel ("the Panel"). The third appellant, the United Synagogue, is an association of Orthodox synagogues and the foundation body of JFS. E is the father of M, who is now aged 13. E is Jewish by descent and M's mother, who is of Italian national and ethnic origin, has converted to Judaism. But her conversion is not recognised by the Orthodox Jewish community. M was refused admission to JFS for the year 2007/2008 on the grounds that he was not recognised as being Jewish by the Office of the Chief Rabbi of the United Hebrew Congregations of the Commonwealth and that its admission criteria gave priority, in the event of oversubscription, to Orthodox Jewish children. E sought judicial review of the Governing Body's refusal to offer M a place at the school, of the Panel's decision to uphold the refusal and against them both for failing to comply with the duty imposed on public authorities under section 71 of the Race Relations Act 1976 and against the rejection of his objection by the Schools Adjudicator. On 3 July 2008 Munby J found the school to have been in breach of its duty under section 71 of the 1976 Act, but otherwise rejected the claims: [2008] EWHC 1535/1536 (Admin). The finding of a breach of section 71 was not the subject of any appeal, but Munby J granted leave to appeal on the substantive discrimination issues.

3

On 25 June 2009 the Court of Appeal allowed E's appeal, finding that JFS's oversubscription criteria were unlawful as they amounted to direct, or alternatively indirect, discrimination as defined in section 1 of the Race Relations Act 1976: [2009] EWCA Civ 626; [2009] PTSR 1442. The Governing Body's refusal to admit M and the dismissal of his appeal by the Panel were both quashed. JFS was directed to reconsider M's admission in accordance with its admissions policy but without regard to the criteria held by the judgment of the court to be unlawful. Other issues arising in the appeal were adjourned and have yet to be determined. That part of the order directing JFS to reconsider M's admission was stayed for 14 days and, if a petition for leave to appeal were to be lodged, until the determination of that petition. As to costs, the Court of Appeal ordered that E's costs in that court and before Munby J be paid in the following proportions: 50% from JFS, 20% from the United Synagogue, which had participated in the case as an intervener in support of JFS, and as to the remaining 30% from other parties who are not concerned with this procedural application. Permission to appeal to the House of Lords was refused.

4

On 28 July 2008 an appeal committee of the House of Lords gave leave to the Governing Body and the Panel to appeal to the Supreme Court on the substantive discrimination issues and to the United Synagogue to appeal against the costs order that was made against it. On 31 July 2009 the House of Lords refused an application by the Governing Body and the Panel for a continuation of the stay of that part of the order of the Court of Appeal directing JFS to reconsider M's admission, with the result that the decision originally challenged in this claim has effectively been superseded.

5

E has had the benefit in the proceedings below, and in the proceedings to date both in the House of Lords and this Court, of funding from the Legal Services Commission. He seeks the benefit of public funding for the substantive hearing of the appeal. But the Legal Services Commission was minded not to provide him with this benefit unless he takes steps to protect it against an order in the appellants' favour for the costs of the appeal. On 18 September 2009 Mr David Reddin, a Senior Case Manager in the Legal Services Commission, wrote to his solicitors in these terms:

"I refer to your letter dated 15 September our telephone conversation of yesterday evening and your email of today's date. For the avoidance of doubt it is correct to say that I am minded to refuse your application for funding [E] as a respondent in the Supreme Court unless the other side is prepared to:

  • (a) Allow the cost [sic] order made in the Court of Appeal to stand in any event

  • (b) Agree an undertaking that there will be no costs order in the Supreme Court with both sides bearing their own costs.

If that is not acceptable we would expect an application to be made to the Court to seek an order along those lines failing which funding would not be provided.

Our reasoning behind this decision stems from the Funding Code which in the circumstances of this case allows the refusal of funding unless the likely costs are proportionate to the likely benefits of proceedings having regard to the prospects of success and all other circumstances."

6

Mr Reddin then set out a series of factors which he said were clearly relevant to the determination of proportionality. In summary, they were as follows: (1) that E had effectively succeeded in the primary purpose of the litigation and his situation would not change whatever the outcome of the proceedings, (2) the likely consequences for the Community Legal Service Fund if costs were to be awarded to the other side on an inter partes basis in the Court of Appeal and in this Court, (3) that it was not unreasonable to expect the appellants to pay for the case, as the real interest in overturning the decision of the Court of Appeal lay with them and (4) that, although the case was of some public interest, the number of people who were likely to benefit as being in a similar position to M was relatively small.

7

The terms proposed by Mr Reddin on the Legal Services Commission's behalf were not acceptable to the other parties. E wishes to maintain his opposition to the appeals, but he is not in a position to fund the legal representation that he requires himself. The result of the predicament in which he finds himself is that he has been left with no alternative but to apply to the Court for a protective costs order. JFS and the United Synagogue have opposed his application.

The issues

8

The order that E seeks is "that the Appellants shall not be entitled to seek the payment of any costs from the Legal Services Commission or the Respondent." As Ms Dinah Rose QC in her carefully worded submissions made clear, the real purpose of this application is to ensure that E continues to have the benefit of public funding in this Court. Taking her application at its face value, however, it raises the question whether E and the Legal Services Commission should be protected against orders for costs in three distinct respects: (1) an order in favour of JFS for the costs of its appeal to this Court on the discrimination issues; (2) an order in favour of the United Synagogue for the costs of its appeal on the costs issue; and (3) an order in favour of either or both of these parties for their costs in the Court of Appeal, should they be successful in their appeals to this Court. Mr Reddin also asked in his letter of 18 September 2009 that an order should be sought that both sides should bear their own costs in any event. But Ms Rose did not seek an order in these terms. She said that it would have serious implications for access to justice and that it would be wrong in principle. We will comment briefly below on her reasons for not doing so.

9

Mr Hart QC for the Legal Services Commission very properly conceded at the outset of his submissions that the Commission would not insist as a condition of extending funding to E on his obtaining protection against an order in favour of the United Synagogue for the costs of its appeal to this Court on the costs issue. Nor would it insist on his obtaining protection against an award in favour of JFS or the United Synagogue of their costs in the Court of Appeal in the event of either or both of them being successful in their appeals to this court. Had he not made these concessions we would have had no hesitation in refusing to make orders to either effect. In both cases E's exposure to the risk of these awards is a direct result of the fact that the Legal Services Commission provided funding to E in the Court of Appeal. Having decided to do so, it must be taken to have assumed the risk that any orders as to costs that were made in E's favour in that court would be reversed on appeal by the Supreme Court. E had a legitimate...

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