Ellis v Merchant Taylors School [2009] EWCA Civ 1050

Case No B2/2009/1498[2009] EWCA Civ 1050
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
Venue ON APPEAL FROM MANCHESTER COUNTY COURT
(HIS HONOUR JUDGE TETLOW)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Tuesday, 8 September 2009
Before
LORD JUSTICE WILSONLORD JUSTICE ETHERTONLORD JUSTICE SULLIVAN
Between
ELLISAppellantMERCHANT TAYLORS SCHOOLRespondent
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr S Vaughan (instructed by Halliwells LLP) appeared for Appellant.Mr P Oldham (instructed by Bond Pearce) appeared for Respondent.
Judgment
[1]This is an appeal against the order dated 28 May 2009 of HHJ Tetlow dismissing the claimant’s claim for injunctive relief and damages for breach of contract against the defendant.[2]The claimants are the parents of Lloyd Ellis, who was born on 9 September 1991 and who was a pupil at the defendant’s senior school. He was expelled from that school on 6 March 2009. In their Particulars of Claim the claimants alleged that their son’s expulsion was:
“…an unreasonable, unjustified and disproportionate reaction to the events that caused him to be punished by the school.”
And more specifically, they alleged in paragraph 7 of the Particulars of Claim that the expulsion was in breach of their contract with the school for Lloyd’s education because the headmaster had:
“(a) Expelled Lloyd when he had not committed a grave breach of school discipline.

(d) Failed to act with procedural fairness …”

[3]The pleaded allegations of procedural unfairness did not include an allegation that there had been apparent bias at the governors’ review hearing on 26 March 2009 of the headmaster’s decision.[4]The governors’ written decision upholding the headmaster’s decision is dated 30 March 2009 and was received by the claimants the following day. The claim form was issued on 21 April and the procedures were expedited so that the hearing before HHJ Tetlow took place on 22 May. His reserved judgment was delivered on 28 May.[5]In that judgment the judge rejected all of the claimant’s complaints as pleaded in their Particulars of Claim. He also rejected a complaint which had not been pleaded and which arose during the course of the hearing on 22 May, namely that there had been apparent bias at the governors’ review hearing because the independent member of the three-person review panel, Mr Jeffery, who was the headmaster of another school in Cheshire, knew the headmaster of the defendant school, Mr Cook.

The judge said, in paragraph 26 of his judgment:

“The consequence of an objection to Mr Jefferys at the hearing, if accepted, would have been an adjournment of the hearing of necessity. The reason for the normal permanent independent member’s absence was because the meeting had to take place quickly, as I understand it. I can see there might be a good argument based upon apparent bias. Had the trial not been listed at the request of the parties very early, no doubt both sides would have been able to marshal their arguments. This has not happened for understandable reasons. I am quite satisfied, having heard the two witnesses, that there is no actual bias. The idea has never entered either of their heads, the Headmaster by including Mr Jefferys in the two or three to be selected by the bursar, Mr Jefferys by the statement of fact of their knowing each other in his witness statement. In the circumstances, I do not think it right to allow to the claimant to rely upon this ground now. An adjournment has not been asked for and indeed the parties wanted a quick decision. I feel that in this day and age, people are often over-sensitive in declaring there is apparent bias. Headmasters in an area are very likely to know each other and may be friends. Similarly, Governors of a school would know the Headmaster and might well be friends. There has been no inquiry of the two Governor members of the review panel as to their relationship with the Headmaster. Putting myself in the position of the fair-minded and informed observer as best I can, I would not conclude on the basis of present information that there was apparent or actual bias made out. Indeed, borrowing from De Smith, there was not a close personal relationship; they are merely friends.”
[7]On 12 August 2009 Aikens LJ gave permission to appeal on the three grounds set out in the grounds of appeal. In summary those grounds are:(1) apparent bias by reason of the relationship between Mr Jeffery and Mr Cook (“bias”);(2) The panel failed to reconsider the headmaster’s decision to expel and merely decided whether the decision was within the ambit of the headmaster’s discretion (“reconsideration”); 3) there was a breach of natural justice because when the headmaster expelled Lloyd he had been made aware of other allegations against Lloyd which he did not give Lloyd an opportunity to answer (“natural justice”).[8]Pausing there, it will be noted that there is no challenge to the judge’s conclusions that Lloyd had committed a very grave breach of school discipline, that the headmaster had understood that expulsion should occur only as a last resort, and that the threshold for expulsion had been crossed: see paragraphs 38 to 40 of the judgment.[9]Nor is the judge’s decision challenged on the basis that he should have concluded that Lloyd’s expulsion was, as the Particulars of Claim had alleged, “an unreasonable, unjustified and disproportionate reaction” to his conduct. This was not a case where there was any, or at least any significant, dispute as to what that conduct had been. The only issue for the review panel therefore was whether expulsion was the appropriate response to that conduct.[10]No challenge has been made to the judge’s account in paragraphs 4 and 5 of the judgment of the events that led up to Lloyd’s expulsion. On Monday 2nd March 2009, a sixth-form bus monitor reported to the Headmaster, Mr Cook, and the Deputy Headmaster that a Year 9 boy, C, had smelt of cigarette and cannabis on the school bus and there had been talk of boys purchasing cannabis from older pupils. C was interviewed by the Headmaster and the deputy and admitted purchasing, with three other Year 9 boys, cannabis for £40 from a Year 11 boy identified as B the previous Friday, immediately after school, prior to getting on the school bus. He had bought the cannabis from a silver or black BMW motor car parked outside the school grounds on Grosvenor Avenue. The description of the car fitted that which the claimants’ son would drive. There had been a previous occasion when the BMW had been involved in a transaction involving the purchase of cannabis in January of this year in the Freshfield area of Formby.[11]C was interviewed in the presence of his parents the same day, 2nd March 2009. He was suspended indefinitely. B was then interviewed by the Headmaster in the presence of his deputy. He denied knowledge of the incidents. The claimants’ son, Lloyd, was then interviewed by the Headmaster and his deputy, and the Headmaster’s witness statement says this about that interview. ‘Lloyd admitted that drugs had been purchased from his car (the BMW referred to by [C]), the previous Friday evening but he said he had not sold them. He stated that he was not the only one in the car and that [B] was a passenger in the car. When asked where the cannabis came from Lloyd, whilst initially reluctant to identify [B], admitted purchasing the cannabis with [B] and [D], another Year 11 pupil, for £20 during half-term, for their own use. At this stage I concluded the interview with Lloyd Ellis until Mr Ellis was present. Lloyd Ellis then admitted that he had driven the car in January to meet [C] in Formby and but again said it wasn’t he who had sold the cannabis to [C] and that he was merely the driver. He did admit that the contact was via his phone but that he hadn’t spoken to [C] on the phone, rather he had handed it to [B] to make arrangements to sell the cannabis. When asked if anyone else was in the car Lloyd did not give a straight answer. The name of another pupil was suggested but Lloyd was adamant that that pupil had not purchased the drugs nor taken part in selling the drugs. Lloyd was keen to stress that the sale of cannabis from his car had occurred outside School grounds and therefore was not something for the School to concern itself with. He stressed that he had put on a sweatshirt to ensure that he was not in school uniform when the cannabis was sold to [C]. I told Lloyd that I did not agree, stressing that this sale occurred immediately outside the School grounds, that [C] was wearing school uniform and that by taking it on to the School bus, the incident was effectively “on” the School site. At this point I suspended Lloyd indefinitely until the conclusion of the investigation. Notes of the interviews were taken by the Deputy Headmaster… Lloyd did not show any contrition. Lloyd and his parents were concerned about where and how Lloyd would take his exams.” Against this background I turn to the three grounds of appeal. Bias[12]Actual bias is not and has never been alleged. When deciding whether or not there has been procedural impropriety because of apparent bias:
“the question is whether the fair-minded and informed observer having considered the facts would conclude that there was a real possibility that the tribunal was biased.”
See paragraph 103 of Lord Bingham’s speech in Porter v Magill [2002] 2 AC 37; [2001] UKHL 67.[13]In his witness statement, which was served on the claimants the day before the hearing began, Mr Jeffery had said that he had been asked whether he would act as the independent member of the review panel and he added:
“David and I…know each other socially… For the avoidance of doubt, I had not had any previous involvement in this matter and had not discussed the matter with David Cook.”
Mr Jeffery came to be the independent member of the review panel because the headmistress who would normally have acted in that capacity was unable to attend. He was selected by the bursar from a short list of three to four candidates, including Mr Jeffery, supplied by Mr Cook.[14]The extent to which he and Mr Cook knew each other socially was explored in cross-examination on behalf of the claimants. The upshot was that, apart from meetings at the headmaster’s conferences, the extent of their friendship was that they attended the same church about twice a month and when they met there usually they spoke with each other. Their wives knew each other, having had coffee a couple of times, and their children knew each other, but they did not regularly spend time together. On one occasion Mr Jeffery had asked Mr Cook for his advice on a professional matter.[15]On behalf of the appellant Mr Vaughan submitted that even though the point had not been pleaded the judge should have allowed it to be raised. In his skeleton argument on behalf of the respondent, Mr Oldham submitted that this was a case management decision which was readily understandable given the expedited procedure that had been adopted for the hearing, and that this court should not interfere with such a decision. He further submitted that the complaint of apparent bias was in any event unfounded.[16]In my judgment the sensible course is first to consider whether the fair-minded and informed observer would have concluded that there was a real possibility of bias because of the relationship between Mr Jeffery and Mr Cook. The starting point must be that such an observer would be well aware of the fact that the number of independent school head teachers is relatively small compared with many other professions and the fair-minded observer would not find it in the least surprising that two headmasters would know each other and would occasionally seek professional advice from each other and would meet and discuss matters of mutual professional interest at head teachers’ conferences. Indeed one of the purposes of such conferences is to foster closer relationships between members of the same profession.[17]Apart from the fact that they met at church, there was no evidence that Mr Jeffery and Mr Cook, as opposed to their wives and children, socialised even on the most occasional basis. The fact that members of the same church congregation would talk to each other in a friendly fashion when they met at the church would not, in my judgment, cause a fair-minded observer to think that there was a real possibility of bias. The note of the evidence of Mr Cook has him saying that he would not class Mr Jeffery as a close friend. He was “more of a colleague but possibly a friend.” These two headmasters knew each other professionally, but it is important to bear in mind that both were professionals. The fair minded observer would be satisfied that if Mr Jeffery, in his professional judgment, thought that his fellow professional had behaved unfairly or imposed an excessive punishment, then he would have felt it his professional duty to say so.[18]Mr Vaughan relied on the fact that, when cross-examined, Mr Jacks had said that had he known of the fact that Mr Jeffery and Mr Cook knew each other and met at church, then he would have disclosed it to the claimants. It does not follow from the fact that a lawyer (Mr Jacks was a retired solicitor) would err on the side of caution and disclose a particular matter that, if not disclosed, it would cause a fair-minded person to conclude that there was a real possibility of bias. In my judgment there is no substance in the complaint of apparent bias. Reconsideration[19]In what was described as an application for judicial review, annexed to the Particulars of Claim, it was contended that the governors’ review should have been a “re-hearing”. Paragraph 64 of the school’s Terms and Conditions says that the head’s decision to expel:
“Shall be subject to a Governors’ Review if requested by a Parent. Parents will be given a copy of the Review procedure current at the time.”
[20]Paragraph 7 of the Governors’ Review Hearing Procedure, so far as relevant, says that:
“The panel will consider each of the questions raised by the Pupil or his/her Parents so far as relevant to: 7.1 Whether the facts of the case were sufficiently proved when the decision was taken to expel or remove the Pupil. The civil standard of proof, namely, “the balance of probability” will apply; and 7.2 Whether the sanction was warranted, that is, whether it was proportionate to the breach of discipline or the other events which are found to have occurred and to the legitimate aims of the Schools’ policy in that respect.”
[21]In his skeleton argument Mr Vaughan submitted that it was the appellant’s case that the hearing before the governors:
“…is neither a re-hearing nor a review, the process they are obliged to undertake is best described as a re-assessment. What is required, however, is for that panel [to] make an independent decision, the governors are to reach their own conclusions as to whether the punishment handed down to Lloyd was proper, appropriate and commensurate with his offence.”
[22]Mr Vaughan submitted that the governors had failed to reach an independent decision and what they had done was simply to review the headmaster’s decision in order to determine whether that was within the broad ambit of the headmaster’s discretion. In support of that submission, Mr Vaughan in his skeleton argument and in his oral submissions before us referred to various passages in the review panel’s decision letter. The difficulty with that submission is that the decision letter was not the whole of the evidence before HHJ Tetlow. Oral evidence was also given. In paragraph 30 of the judgment, having referred to certain passages from the decision letter which

the judge said prima facie suggested independent consideration, the judge continued :

“If there is any doubt about the matter, I have now seen a part of the decision which was not promulgated, namely the panel decision recording their views expressed when the panel was deliberating on its own. That, clearly, to my mind, demonstrates independent consideration and, in particular, the discounting of immaterial matters introduced by the Headmaster.”
[23]He returned to the discounting of immaterial matters in paragraph 36 of the judgment, in which he said:
“It is quite clear from the panel discussion which took place after the other parties had departed that the members considered that the Headmaster had confused the issue by introducing further evidence. It is apparent that the panel decided the matter on the basis of the two admitted incidents as the alternative, as appears from their decision, would have been to investigate the further matters, which would have meant Lloyd remained suspended in the meantime. The panel members independently were satisfied that the two incidents did indeed merit expulsion.”
[24]The judge heard oral evidence from two members of the panel, Mr Jeffery and Mr Jacks, the chairman, who was one of the governors. Mr Jacks was cross-examined on the basis of the references in the decision letter, on which the claimants rely for the proposition that all that the governors had undertaken was to consider whether the headmaster’s decision was within the scope of the discretion conferred upon him.[25]However, this was not a case, as the cross-examination of Mr Jacks makes clear, where the governors were saying in their oral evidence that it was not for them to take their own independent view and they were only there to review the headmaster’s decision. Repeatedly in his evidence in cross examination, Mr Jacks agreed with the proposition that it was indeed for the governors to take their own independent view and he maintained that that was just what they had done. Thus we find this exchange during the course of his cross-examination:
“Q. What do you see the role of the [panel] being, having regard to paragraph 7.2 [of the procedure for governors review hearings]? A. I think…,once the facts were established, the review panel then has to see whether the sanction imposed by the Headmaster, namely expulsion, was warranted and whether it was proportionate. … Q: It has to be [an] independent decision of the panel, does it not? A: Yes we have to, we have to, yes I think that is right.”
Q: It has to be [an] independent decision of the panel, does it not? A: Yes we have to, we have to, yes I think that is right.”[26]And then again in the course of one of his answers he said that the panel had:
“…accepted the Headmaster’s decision as reasonable and unbiased, so that is the panel saying, we have looked at this, we have looked at the balancing factors and I should have used the word proportionate. We have looked at the balancing factors. We think the Headmaster got it right…. … Well, what we say is the Headmaster’s decision was reasonable unbiased. Q: Yes, but it is not your decision, it’s the Headmaster’s decision. A: No, it is our opinion on the Headmaster’s decision and in fact 7.2, it says whether the sanction imposed by the Headmaster was warranted and proportionate, and we are saying that is the decision Headmaster. We have looked at it. We think it is, now I did not use the word proportionate.”
[27]In answer to further questions in cross-examination Mr Jacks confirmed:
“I said the panel’s function is to look at the headmaster’s decision to see whether it is warranted and proportionate. Q: I thought we had agreed that demanded independent thought. Where is your independent thought in paragraph 22? A: I think it is in paragraph 25.”
A: I think it is in paragraph 25.” There then followed an exchange as to the precise terms of paragraph 25 of the governors’ decision letter.[28]Thus the position on the evidence before the judge was that, whatever criticisms were made of any infelicities in the governors’ decision letter, the oral evidence from Mr Jacks was that the governors had indeed exercised their own independent judgment. Mr Vaughan submitted that the judge should have rejected that oral evidence. He did so notwithstanding his concession that there is nothing in any of the documents or the evidence to indicate that the governors themselves might have thought that expulsion was inappropriate, but felt constrained to conclude that expulsion was within the broad ambit of the discretion conferred upon the headmaster. The short answer to this ground of appeal is that the judge was fully entitled to accept Mr Jacks’ oral evidence that, whatever the precise terms of the governors’ decision letter, the governors had made their own independent decision.

Natural Justice

[29]This is also a complete answer to the third ground of challenge: natural justice. Very briefly, the complaint under this head is that, between making his interim decision on 2 March 2009 to expel Lloyd and his final decision to do so in a letter of 6 March 2009, the headmaster had become aware of further allegations against Lloyd, which he took into account but did not give Lloyd the opportunity to answer. That is precisely the kind of potential unfairness that can be addressed in the review procedure. Either the further allegations are not taken into account by the review panel or it gives the pupil a fair opportunity to answer them if it thinks that they are of sufficient importance that they should be taken into account. The judge concluded that the panel had reached the view that the introduction of the further incidents into evidence by the headmaster had simply confused matters, and that they should decide the matter on the basis of the two incidents which Lloyd had admitted and which in their view merited expulsion. See paragraph 36 of the judgment to which I have already referred. It follows that there is no substance in the third ground of challenge.

Discretion

[30]Given these conclusions it is unnecessary to deal with Mr Oldham’s submission that injunctive relief should in any event be refused because to grant such relief would be to force the parties to enter into personal relationships. It might be thought that it is far from clear what useful purpose might be served on the facts of the present case by remitting this case for a further hearing before the governors, in circumstances where there has been no challenge to the judge’s conclusion that there was indeed a very grave breach of school discipline, that the expulsion threshold had been crossed and where the judge did not accept the claimant’s contention on the basis that expulsion was unreasonable, unjustified and disproportionate. It is unnecessary to consider whether any practical purpose would be served by injunctive relief because the three grounds of appeal have not in my judgment been made out.[31]For those reasons I would dismiss this appeal.[32]I agree.[33]I also agree.

Order

Appeal dismissed