Daskaloulis, R (on the application of) v The University of the West of England [2008] EWHC 2981 (Admin)

[2008] EWHC 2981 (Admin)Case No CO/8716/2007
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday, 22nd October 2008
Strand
London WC2A 2LL
B e f o r e:
HIS HONOUR JUDGE PELLING QC
(Sitting as a Deputy High Court Judge)
Between
THE QUEEN ON THE APPLICATION OF DASKALOULISClaimantv
Between
THE UNIVERSITY OF THE WEST OF ENGLANDDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
The Claimant appeared in person for in personJane Oldham (instructed by Bevan Brittan) appeared for Defendant
J U D G M E N T

JUDGE PELLING:

[1]In these judicial review proceedings, by an order made on 12th March 2008, Cranston J gave permission for the claimant to bring judicial review proceedings against the defendant, the University of the West of England. In his observations, when giving permission, Cranston J said this:
"The only point of substance is the change of criteria between 2005/6 and 2006/7 and the Defendant's admission that the Claimant may not have known about this. The Defendant asserts that even if the Claimant has been assessed in terms of the 2005/6 criteria he would still have been regarded as 'Not Yet Competent'. I grant permission on this limited basis but the Claimant (who is representing himself) should be made aware that the chances of success do not appear strong."
[2]Following the grant of the limited permission to which I have referred, the defendant filed detailed grounds for contesting the claim. What was said in that document was as follows:
"3 On 7 May 2008 the Defendant's solicitors (Bevan Brittan LLP) sent Mr Daskaloulis the attached letter which confirmed that, without acceptance of liability, the Defendant was prepared to:- 3.1 Revoke the Examination Board's decision to direct Mr Daskaloulis to withdraw from the Bar Vocational Course; and 3.2 Allow him one further opportunity to re-take the negotiation assessment in September 2008."
[3]Matters then moved on and that proposal not having been accepted by the claimant, a further proposal was ultimately made by the Defendant by which it was proposed, as an alternative to what was contemplated by the detailed grounds, that a DVD of the negotiating skills assessment exercise undertaken by the Claimant in 2006/7 should be reassessed by reference to the 2005/2006 criteria by two external assessors not otherwise connected with the university, and who have no previous involvement with this case, with moderation thereafter by a further independent examiner, again with no prior connection to this case or other connection to the university. That is in essence where matters rest.[4]The claimant's position, in the end, has been to say, firstly, that he is concerned more generally about others who may be the victim of similar errors and also to contend that the remedies proposed are not appropriate and that what he seeks to recover are the fees that he spent on the course with the defendant.[5]In the application the claimant identified the remedies that were sought on this application in these terms:
"1. That the Withdrawal Order issued upon me by the Examiners' Board is quashed or such remedy decided by the Court."
This is in essence exactly what the defendant has conceded before me. Secondly, by way of remedy, the following is sought:
"2. That I am given the opportunity to pursue damages against the arbitrary conduct of Agents of a Public Authority in the form of monetary compensation in the region of £50,000 or such amount decided by the Court, such amountreflecting the economic loss and the psychological distress I have suffered as a result of the aforementioned conduct, which has in effect put an end to my chosen career."
[6]As will be appreciated, the monetary remedy which the claimant has sought before me today is markedly different to that which is identified in paragraph 2 of the remedies sought.[7]In my judgment, so far as the first of the remedies sought is concerned, in the light of the concessions which have been made, it is clearly right that the exclusion order that was made should be quashed. It is further right, as is submitted by the defendant's counsel, that I should remit this matter and, as is accepted by the defendant, that I should make provision for two alternative mechanisms then to be available to this claimant in order to take matters forward. Alternative 1 will be a reassessment by reference to the DVD materials, initially by two external examiners with no previous connection to this case, and who are otherwise independent of the university, followed by moderation by a further external examiner with no previous connection to this case and independent of the university. Alternative 2 will entitle the Claimant to a re-sit of the module, to be assessed by reference to the (correctly applicable) 2005/2006 criteria[8]It seems to me that if this mechanism is to be adopted, then there needs to be a cut-off date by which the claimant must make a choice as to which of the two alternatives he wishes to adopt, with a default provision which enables the defendant to adopt its preferred option in the event that the claimant has not indicated which option he wishes to elect to follow by the cut-off date. I have been told by counsel for the defendant that their preferred default option would be a reassessment by reference to the DVD material using the 2005/2006 criteria. It may well be that the best way of formulating the order is to provide that unless the option to retake has been positively elected for by the claimant by a fixed future date, then the defendant is at liberty to proceed with the reassessment of the DVD in the way proposed.[9]So far as the money claim advanced today is concerned, It has not been sought in the Claim, no permission to bring such a claim has been granted and in any event as counsel for the defendant points out, in my judgment correctly, there is no accrued private law cause of action available to this claimant. It would have been open, I suppose, to the claimant to advance a claim in damages based upon wrongful repudiation of contract, but none has been intimated down to the date of this hearing. The stance adopted in these proceedings, on the face of it, appears inconsistent with such an approach, since it seeks the quashing of the decision made which is consistent with the affirmation rather than the acceptance of a repudiation of the contract. As to the claim made in Paragraph 2 of the remedies section of the application, I am entirely satisfied that it cannot succeed, firstly, because permission was not obtained from Cranston J to proceed with that element, next because no renewed application for permission has been made and, finally, because the article of European Convention on Human Rights which is relied upon is itself parasitic upon other primary provisions within the European Convention on Human Rights and there has been no attempt to identify other provisions upon which reliance is placed. In any event, there is no reason why, if the claimant considers that he has a claim which can be maintained, he should not bring proceedings for damages in the appropriate court for that, being either the relevant County Court or the Queen's Bench Division of the High Court.[10]In those circumstances, and for those reasons, I intend to grant the remedies fashioned essentially in the terms set out in this judgment.

RULING ON COSTS

[11]I have before me now an application for costs made by the defendant in these proceedings, where I gave a substantive judgment just a moment ago. In advancing the application for costs, it is accepted by the defendant that the claimant would in principle be entitled to recover his costs, such as they are, for these proceedings down to the date of the concessions, which are identified in my judgment.[12]The initial concession was made on 7th May 2008 by a letter of that date from Bevan Brittan, that I refer to in the body of the main judgment. The subsequent letter, by which the alternative proposed remedy was identified, is contained in a letter dated 22nd September 2008.[13]It is submitted on behalf of the defendant that since in substance the remedy which I have fashioned essentially reflects what is contained in these letters, I should order the claimant to pay the defendant's costs from either the May date, when the initial proposal was made, or alternatively 22nd September 2008, the date of the letter when the alternative remedy was proposed.[14]In response to this proposal, the claimant relies upon a letter dated 17th July 2007, which he wrote to the defendant. As counsel points out, this letter was written as part of an internal appeal process --[15]THE CLAIMANT: That is under the pre-action protocol, my Lord.

JUDGE PELLING:

[16]-- prior to the commencement of these proceedings. The proposal, which was contained in that letter at paragraphs 5, 6 and 7 was:
"5. That I am given a further opportunity to undertake the Negotiation Assessment; 6. That such assessment is being conducted and/or referred to an External Examination Board based at the North West of England; 7. That upon service of the results I am given a thorough and precise feedback relating to my performance, reflecting my compliance or not with the Bar Standards Board 'Bar Vocational Course Specification Requirements and Guidance'."
[17]Contrary to the intervention made by the claimant just a moment ago, the letter from which I have just quoted commences:
"The purpose of this communication is to notify the Academic Secretariat of my intention to appeal against an Order upon myself to withdraw from the Bar Vocational Course as Not Yet Competent, issued by the Course Provider, the Bristol Institute of Legal Practice on the 11th of July 2007."
[18]The issue which arises is, in my judgment, tolerably clear. Bevan Brittan conceded the alternative remedy on 22nd September 2008. As the case has been argued before me, that is its preferred remedy. It seems to me, therefore, that that is the appropriate date from which any costs order should run. However, given the nature of the way in which the case has been run, which is in effect to concede the entitlement of the claimant to the remedy in fact fashioned, it means that the claimant would be entitled to recover his costs, such as they are, and by reference to the rules which apply to litigants in person who have incurred costs in conducting litigation, down to that date.[19]In the normal way, what I would attempt to do would be to award a proportion of the costs incurred by the defendant after 22nd September 2008 in order to avoid the need for two detailed assessments. I will give the parties a very short, further opportunity to address me on that point, but in the absence of some fairly speedy agreement as to how that could be resolved in the circumstances of this case, it seems to me that the only way that matters can be resolved is by making an order that the claimant is entitled to recover his costs of and occasioned by this application down to 1 week after 22nd September 2008, for it seems to me he was entitled to a 7-day period to consider the proposals contained in the letter, and that the defendants are entitled to recover their costs of and occasioned by the application incurred thereafter, in each case to be the subject of a detailed assessment unless agreement can be reached.[20]It may be that with a little goodwill, the need for the claimant to undertake a detailed assessment of his costs could be avoided by identifying a percentage by which the defendant's costs could be reduced for the period I have directed they should have recovered their costs for, but in the absence of such an agreement, as I said to be the subject of some fairy speedy submissions now, it will be necessary for there to be the mutual detailed assessments to which I have referred.[21]MRS OLDHAM: May I take instructions?

JUDGE PELLING: Yes.

[23]MRS OLDHAM: My Lord, my instructions are that the defendant would prefer detailed assessment.

JUDGE PELLING:

[24]Very well. There will be an order in those terms, and if you draw it up and let me have it, as I said, through the usual channels, that would be helpful. Thank you very much.[25]MRS OLDHAM: I am most grateful.